R v Lee Nervais

In sentencing multiple serious offences, totality must be assessed across the whole offending. A lead sentence must reflect serious offences sentenced concurrently, including offences involving a different victim. Where other offences are consecutive, the sentence for that group must reflect their combined criminality. Sentencing comparisons involving materially different single offences may provide no assistance in deciding whether a sentence is manifestly excessive. An appellate court will not interfere where the sentencing judge has carefully assessed the aggravating and mitigating factors and explained the totality assessment. A surcharge imposed before the confiscation hearing may be technically premature, but quashing is unnecessary where the circumstances and justice of the case do not require it.

The appellant was convicted of conspiracies to cause grievous bodily harm, conspiracy to kidnap, and conspiracies to supply cocaine and diamorphine. On 9 August 2022, the sentencing judge imposed a total determinate sentence of 20 years: 12 years for the violence offending and eight years for the drug offending. The appellant appealed against sentence with leave of the single judge.

He argued that the 12-year term for conspiracy to kidnap was manifestly excessive and that the consecutive eight-year term for the drug conspiracies failed to give proper effect to totality. The central issues were whether the judge had wrongly treated 12 years as a starting point, whether the sentencing comparisons relied upon were apt, and whether the total sentence was proportionate.

1. Appeal dismissed. The 12-year sentence for conspiracy to kidnap was not a starting point adopted before consideration of the circumstances. It was the final sentence after account had been taken of the aggravating and mitigating factors, the inchoate nature of the offence, and the criminality of the other violence offences.
2. Totality required the lead sentence to reflect two serious concurrent conspiracies to cause grievous bodily harm. One involved a different victim and each offence had independently attracted a five-year sentence. The concurrent sentences were therefore not merely academic. The judge would have erred by failing to adjust the lead sentence to reflect them.
3. The sentencing comparisons relied upon did not demonstrate manifest excessiveness. The authorities cited, including Saqib [2022] EWCA Crim 213, Lunkulu [2011] 2 Cr.App.R (S) 680, the two Attorney General’s References reported at [2015] 1 Cr.App.R.(S) 44 and [2015] 1 Cr.App.R.(S) 55, and R v Smith [2021] EWCA Crim 1931, concerned materially different offending. The analogies with single offences of kidnapping or false imprisonment were of no real assistance.
4. The eight-year sentence for the drug offending also gave proper effect to totality. The two drug conspiracies were serious offences, each capable of attracting an eight-year sentence. The fact that the drug sentence was consecutive to the violence sentences did not require a further reduction which ignored the combined criminality of the drug offences.
5. The surcharge appeared to have been imposed before the confiscation hearing, contrary to the approach indicated in R v Bristowe [2019] EWCA Crim 2005. Nevertheless, the circumstances and justice of the case did not require the surcharge order to be quashed.

1. Court of Appeal (Criminal Division) — On 30 March 2023, dismissed the appeal against sentence. [2023] EWCA Crim 42
2. Sentencing court — On 9 August 2022, the same judge imposed a total sentence of 20 years’ imprisonment following convictions on five counts.