R v Luiz Inacio Da Silva Neto

Separate serious offences against different victims may properly attract consecutive sentences. However, the totality principle requires the aggregate sentence to be just and proportionate. It will usually be wrong simply to add together the sentences appropriate for each offence viewed alone. A judge who recognises that principle must make an effective adjustment where the aggregate would otherwise be excessive.

An erroneous treatment of a relationship as an abuse-of-trust factor does not require a different individual sentence where the remaining harm and culpability factors independently justify movement within the guideline range. Previous good character will not normally reduce the appropriate sentence under the sexual-offence guidelines.

The appellant was convicted at the Crown Court at Oxford of serious sexual offences against two men, including rape, causing a person to engage in penetrative sexual activity without consent, and administering a substance with intent. The offences occurred in two separate incidents during late 2021 and involved the use of stupefying drugs.

On 7 July 2022, he received consecutive lead sentences of 12 years for rape and 10 years for the other penetrative sexual offence, producing a total of 22 years’ imprisonment. He appealed with leave against sentence, contending that the individual terms and the aggregate sentence were manifestly excessive.

1. Appeal allowed in part. The total sentence of 22 years’ imprisonment was excessive because it did not give effective effect to the totality principle. The court substituted consecutive terms of 10 years and nine years on the two lead counts, reducing the total sentence to 19 years.

2. The individual sentence of 12 years for the rape was not manifestly excessive. The sentencing judge was entitled to move above the category starting point because of the significant and multiple harm and culpability factors. The use of drugs to facilitate the offending could be reflected in the sentence for rape even though there was a concurrent sentence for administering a substance with intent; this was not double counting.

3. The judge had erred if he treated the relationship with the other victim as an abuse-of-trust higher-culpability factor. It did not fall within that term as explained in R v Forbes [2016] EWCA Crim 1388, paragraph 18. The error did not make the individual sentence excessive because the other applicable harm and culpability factors justified the increase within the category range. The court also held that the guideline rubric on previous good character had been properly applied.

4. Consecutive sentences were appropriate because the offending involved separate incidents and unrelated victims. That conclusion did not remove the need to assess the overall sentence. The totality guideline required a just and proportionate aggregate and ordinarily prevented the simple addition of notional individual sentences. Although both victims had suffered gravely, the judge had made no adjustment after identifying the appropriate individual lead sentences.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 1110, allowed the sentence appeal to the limited extent of reducing the aggregate sentence from 22 years to 19 years for failure to apply totality proportionately.

• Crown Court at Oxford — On 1 July 2022, convicted the appellant after trial of the serious sexual and associated offences. On 7 July 2022, imposed a total sentence of 22 years’ imprisonment.