R v Kyle Buckley

The totality principle requires a sentence to be just and proportionate in the context of all sentences already being served. Where an offender serving a life sentence commits serious, separate offences in custody, concurrent terms for the new offences may fail to mark their overall seriousness. A consecutive determinate term may therefore be required, notwithstanding the offender’s youth and the severity of the existing life sentence.

An extended sentence is not appropriate where it is clearly unnecessary for public protection because the offender will remain in custody for a substantial minimum term and, if released, will be subject to lifelong licence conditions.

The Attorney General referred the sentences imposed on Kyle Buckley as allegedly unduly lenient under section 36 of the Criminal Justice Act 1988.

Buckley was serving a life sentence for murder when, aged 17, he committed offences in a young offender institution. They included possessing an improvised weapon, affray, throwing hot water at a prison officer with intent to cause grievous bodily harm, and spitting at another emergency worker.

The Crown Court at Leeds imposed concurrent detention terms totalling 18 months, concurrent with Buckley’s existing life sentence. The reference raised whether the judge should have imposed an extended sentence, whether the individual terms were unduly lenient, and whether the total term should have been consecutive to the life sentence.

1. The court granted leave to refer, quashed the sentences below and substituted concurrent terms of four months for possessing the weapon, one month for assaulting the emergency worker, 18 months for attempted grievous bodily harm with intent, and six months for affray. The resulting total of 18 months was ordered to run consecutively to the life sentence.

2. The sentencing judge should have set out his approach to dangerousness more fully. However, an extended sentence was neither necessary nor appropriate. Buckley’s youth, his substantial remaining custodial minimum term, and the fact that any release would be subject to lifelong licence conditions meant that public protection did not require that additional sentence.

3. The governing issue was totality. The Sentencing Council’s Totality Guideline requires the aggregate of consecutive sentences to be just and proportionate; where it is not, individual terms may be reduced to achieve that outcome. The existing life sentence was therefore material to both the length and structure of the new sentence.

4. The court accepted that the individual terms had been lenient and that spitting at an emergency worker warranted a short custodial term. It did not criticise the concurrent structure of the sentences for the current offences themselves, provided that their total properly reflected their overall seriousness.

5. The judge nevertheless failed to impose a just and proportionate total sentence by making the 18-month total concurrent with the life sentence. The offences were serious, occurred in two separate incidents in a penal establishment, and included deliberate attacks on prison officers. Youth and mitigation justified keeping the additional term short, but could not eliminate further punishment. Buckley must serve the applicable part of the consecutive 18-month term after completing his life-sentence minimum term before becoming eligible for parole consideration.

• Court of Appeal (Criminal Division): By [2022] EWCA Crim 1820, granted leave on the Attorney General’s reference, quashed the concurrent sentences and imposed a total of 18 months’ detention consecutive to the existing life sentence.

• Crown Court at Leeds: Imposed concurrent detention terms totalling 18 months for the new offences, ordered concurrently with Buckley’s life sentence.