R v Vytautas Kiminius

When several offences are distinct in time, nature and victims, concurrent sentences will not normally be appropriate. The totality principle may still require an allowance, but that allowance need not make all sentences concurrent. A court may achieve it by making selected sentences concurrent while preserving consecutive sentences for materially separate criminality. An upward adjustment from a sentencing-guideline starting point is justified where multiple features of culpability or harm make the case particularly grave, before further aggravating and mitigating features are considered. The effects of Covid-19 on imprisonment are a matter for the sentencing judge to take into account; they do not require an automatic reduction in every custodial sentence, and failure to mention them does not by itself make a sentence appealable.

The applicant pleaded guilty to offences including conspiracy to handle stolen goods, converting criminal property, production of cannabis and breach of bail. He had already been sentenced for causing death by dangerous driving. The Crown Court imposed an aggregate sentence of seven years and seven months, consecutive to the earlier sentence, including five years and four months for cannabis production. The applicant sought an extension of time and renewal of leave to appeal against sentence, arguing that the cannabis sentence was too high, that the total sentence was manifestly excessive and that insufficient allowance had been made for Covid-19 prison conditions. The single judge refused leave. The central issues were whether the individual cannabis sentence was excessive and whether the sentencing judge had properly applied totality.

1. Application refused. There was no good reason to extend time. None of the proposed grounds was arguable.
2. The eight-year notional sentence for cannabis production was at the top of the category 2 range, but the judge had expressly declined to place the offending in category 1. The guideline permitted an upward adjustment from the starting point where multiple features of culpability or harm made the case particularly grave. The applicant had three features supporting a leading role, and the offending was a large-scale, ongoing commercial operation lasting five years and generating significant profit. There was little, if any, mitigation. The upward adjustment could not be criticised.
3. The totality principle normally favours concurrency where offences arise from the same incident or facts, or form a series of similar offences, especially where they are committed against the same person. Here the offences were distinct in time, period, nature and victims. Bail Act sentences should generally be consecutive. Handling stolen goods, dangerous driving, cannabis production and conversion of criminal property represented separate criminality. Cleaning up criminal gains was an integral part of crime and, when exposed, warranted appropriate punishment.
4. All the sentences could in principle have been consecutive, subject to totality. The judge made a clear allowance by making the Proceeds of Crime Act 2002 and Bail Act sentences concurrent. That was a suitable method of applying totality and did not produce a manifestly excessive aggregate sentence.
5. The court agreed with the single judge’s treatment of R v Manning [2020] 4 WLR 77. That decision did not require an automatic reduction in custodial sentences for Covid-19 conditions. Such conditions were a matter the sentencing judge could take into account, and omission of an express reference did not itself make the sentence vulnerable.

1. Court of Appeal (Criminal Division): The single judge refused leave to appeal. The Court of Appeal agreed with those reasons, refused the application for an extension of time and refused renewal of leave to appeal against sentence: [2022] EWCA Crim 774.
2. Crown Court at Peterborough: On 20 October 2021 the applicant was sentenced to an aggregate term of seven years and seven months, consecutive to the sentence previously imposed by the Crown Court at Cambridge for causing death by dangerous driving. No lower-court citation is stated in the judgment.