R v Michael O’Brien

The totality principle requires the overall sentence for multiple offences to reflect the total offending, overall harm and culpability, relevant aggravating and mitigating factors, and personal factors, while remaining just and proportionate. There is no inflexible rule requiring concurrent or consecutive sentences. Where sentences are consecutive, a downward adjustment is ordinarily required, but it is not mandatory. A substantial interval between groups of offences may justify little or no separate reduction for totality. The appellate question is whether the sentence was properly open to the judge, not whether another sentencer might have reduced it. A sentencing decision in another case does not establish a benchmark merely because the appeals in that case were dismissed.

The appellant pleaded guilty to five offences of fraud and money laundering arising from two groups of building-related offending against vulnerable victims. The Crown Court at Woolwich imposed a total sentence of six years and seven months’ imprisonment, comprising concurrent sentences for each group with a consecutive sentence for the second group.

He appealed on the grounds that the recorder had failed to apply the totality principle, had double counted matters, and had imposed a sentence that was excessive. The central issue was whether the recorder could properly make no further reduction for totality despite the consecutive structure of the sentence and the interval between the two groups of offences.

1. The appeal against the total sentence was dismissed. The individual sentences were not successfully challengeable. The recorder had correctly followed the Sentencing Council’s Fraud guideline and had, if anything, been lenient in relation to count 1. The imposition of consecutive sentences was also open to him.

2. The comparison with R v Wharf and others [2015] EWCA Crim 2320 provided no assistance. That decision showed only that the sentences imposed in that case were neither wrong in principle nor manifestly excessive in its circumstances. It did not provide a benchmark for the appropriate sentence in a different case.

3. The overriding principle of totality requires the overall sentence to reflect all the offending behaviour, overall harm and culpability, aggravating and mitigating factors relating to the offences and the offender, and the requirement that the result be just and proportionate. There is no inflexible rule governing whether sentences should be concurrent or consecutive.

4. Where sentences are consecutive, simply adding notional single sentences will ordinarily require some downward adjustment. That adjustment is not mandatory. Where there is a substantial interval between two groups of offences, a sentencer may properly conclude that little or no separate reduction is warranted on grounds of totality.

5. The two groups of offending were separated by a lengthy period. Although many sentencers might have made at least a small reduction, the relevant question was whether the recorder could properly decide to make none. He could. Consequently, no separate double-counting issue arose. The sentence was stiff, but it was neither wrong in principle nor manifestly excessive.

1. Crown Court at Woolwich: On 31 March 2023, the appellant was sentenced to a total of six years and seven months’ imprisonment following guilty pleas to five offences.
2. Court of Appeal (Criminal Division): The appeal against sentence was dismissed.