R v Luke Forde

In sentencing references involving multiple related offences, the totality principle requires the aggregate sentence to be just and proportionate and to reflect the offender’s overall criminality. Where concurrent terms understate that criminality, at least some terms must be made consecutive, having regard to matters including the number of victims and the nature and seriousness of the offending. An appellate court need not resolve a disputed sentencing-guideline issue that is unnecessary to the outcome. It may reserve that issue for a case in which it arises for decision. An aggregate sentence of four years’ imprisonment cannot lawfully remain suspended.

This was an Attorney General’s reference under the Criminal Justice Act 1988 concerning a sentence considered unduly lenient. The respondent had pleaded guilty to 20 offences arising from online communications with purported children, attempted sexual offences, indecent images and extreme pornography. The Crown Court at Basildon imposed two years’ imprisonment suspended for two years, with community requirements.

The Attorney General challenged the categorisation under the relevant sentencing guideline, the failure to reflect the totality of repeated offending, and the suspension of the sentence. The central issue was whether the aggregate sentence fairly reflected the overall criminality.

The court granted leave and allowed the Attorney General’s reference in part.

1. The court declined to determine whether the offending involved a significant disparity of age for the purposes of the relevant sentencing guideline. There were arguments on both sides, and any starting point would also require adjustment because the offences were attempts and no sexual activity occurred. The issue was reserved for a case in which it arose and required determination.
2. The sentence did not fairly reflect the overall criminality. The court took account of the respondent’s age, previous good character, personal circumstances, pre-sentence report and references. Those matters did not outweigh the seriousness of the offending, which involved 16 separate purported victims, sustained sexual communications and 20 counts.
3. The totality principle required at least some sentences to be consecutive. The court therefore left the two-year sentences on counts 2 and 3 unchanged in length but made them consecutive, producing an aggregate sentence of four years’ imprisonment. That sentence could not lawfully be suspended.
4. All other sentences remained concurrent. The sentence on count 2 became two years’ immediate imprisonment, and the sentence on count 3 became a further consecutive two years’ immediate imprisonment.

1. Court of Appeal (Criminal Division): On 15 December 2022, leave was granted and the Attorney General’s reference was allowed in part. The sentence was increased to four years’ immediate imprisonment: [2022] EWCA Crim 1743.
2. Crown Court at Basildon: On 14 October 2022, two years’ imprisonment was imposed, suspended for two years, with programme, unpaid work and rehabilitation requirements.
3. Magistrates’ Court: On 1 September 2022, guilty pleas were indicated to all charges.