R v Luis Miguel Calado

The totality principle requires a just and proportionate overall sentence reflecting the offender’s total criminality. A sentencing judge need not state the precise discount allowed for totality where the judge has referred to the relevant guideline and principle, and the resulting sentence is not manifestly excessive. When a suspended sentence is activated, it may properly be made consecutive to sentence for separate offending. The fact that another judge might have adopted a different approach does not establish manifest excess.

The appellant was convicted at Worcester Crown Court of sexual offences against two complainants following two separate trials. He received concurrent sentences within each group of offences, producing an overall sentence of 14 years. At a subsequent slip-rule hearing, 20 weeks of a previously suspended sentence was activated and made consecutive, resulting in a total of 14 years and 20 weeks.

He appealed on the ground that the sentencing judge had failed properly to apply totality and that the activated sentence should not have been consecutive. The central issues were whether the overall sentence was manifestly excessive and whether the activated suspended sentence could properly run consecutively.

1. Appeal dismissed. The sentence was not manifestly excessive.
2. For the first group of offences, the sentencing judge had correctly assessed the sexual assault and assault by penetration under the applicable guideline categories. The seven-year sentence for that offending was permissible, having regard to the complainant’s particular vulnerability and the aggravating features, including the location, the Facebook publication intended to discourage continuation of the prosecution, and the absence of a mental disorder linked to commission of the offences.
3. For the second group, the judge had correctly treated the rape and assault by penetration as Category 3B offences. The aggravating features included commission while on bail, offending in the complainant’s home, ejaculation and targeting of the complainant.
4. The court inferred that the judge had reduced the sentences for each group to take account of proportionality and totality. Although the judge had not expressly identified the amount of discount, the judge had referred to the Sentencing Council Guideline on Totality and the totality principle. In view of the criminality and aggravating factors, the court could not say that the overall sentence of 14 years was manifestly excessive.
5. It was common ground that the suspended sentence was properly activated and that the amount activated had properly been reduced from 26 to 20 weeks. Once activated, it was perfectly appropriate for that sentence to be consecutive to the separate offending and criminality. A different sentencing approach by another judge would not, without more, make the sentence manifestly excessive.

• Worcester Crown Court: The appellant was convicted after two trials and sentenced to concurrent terms for each group of offences, producing 14 years’ imprisonment. A further 20 weeks of a suspended sentence was later activated and made consecutive.
• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. [2022] EWCA Crim 1649