REGINA v DENNIS BOWIE & Anor

The principle of totality requires a sentence for multiple offences to reflect the entirety of the offending and to be just and proportionate. It applies whether individual terms are concurrent or consecutive. A court must assess the offending and the offender as a whole, rather than simply aggregate notional single-offence sentences.

There is no fixed rule requiring concurrency merely because offences of a similar sexual nature were committed against one victim. Consecutive terms may properly be imposed where separate offending, including grooming communications, has not been double-counted and concurrent terms would fail to reflect the overall criminality. The resulting total must not be manifestly excessive.

Two adult volunteer members of an Army Cadet Corps pleaded guilty to sexual offences against a 14-year-old female cadet. Their offending included sexual communications, sexual activity and, in one appellant’s case, making indecent photographs of a child. The offences involved grooming, alcohol, abuse of positions of trust and serious harm to the complainant.

On 28 May 2021, the Crown Court at Lewes imposed total custodial terms of five years and two months on Bowie and three years and nine months on McElhinney. In each case, a term for sexual communication was made consecutive to a term for a multi-incident sexual-activity count.

Both appealed on the common ground that the communication term should have been concurrent because the principal sexual-activity term already reflected the overall criminality.

1. The appeals were dismissed. The total sentences, although severe, were not manifestly excessive.

2. The court explained that totality has two elements. The sentencing court must impose a total sentence that reflects all offending and is just and proportionate, whether its components are concurrent or consecutive. It must also assess the offending and the offender as a whole; it cannot ordinarily reach a just result by adding together notional sentences for individual offences.

3. There is no rigid rule governing concurrency and consecutiveness. The general approach in the Sentencing Council Guideline on Totality indicates that concurrent terms will often suit a series of similar offences against the same victim. However, consecutive terms will ordinarily be appropriate where concurrent terms would not sufficiently reflect overall criminality.

4. The common victim did not determine the structure of the sentences. It was open to the judge to impose consecutive terms for sexual offences against one victim, provided the total was not manifestly excessive: R v AD [2013] EWCA Crim 1017. The sexual communications were part of the grooming and planning, but were a separate form of offending. The sentencing remarks did not reveal double-counting: the principal sexual-activity terms were justified without taking the communications into account.

5. The judge was entitled to conclude that concurrency would not reflect the full criminality. The repeat offending involved a grave abuse of trust, planning, joint activity, alcohol, a marked age disparity and lasting harm to the complainant. McElhinney also sought to prevent disclosure. Deterrence was properly material where adults entrusted with children used their positions to commit sexual abuse.

• Court of Appeal (Criminal Division): dismissed both appeals against sentence in [2022] EWCA Crim 79.
• Crown Court at Lewes: on 28 May 2021 imposed total sentences of five years and two months’ imprisonment on Bowie and three years and nine months’ imprisonment on McElhinney.