Jon Newman v R

The totality principle requires the overall sentence for multiple offences to reflect the offending as a whole and remain just and proportionate. There is no inflexible rule requiring sentences to be concurrent or consecutive. Possession of indecent photographs of children and breaches of a sexual offence prevention order constitute separate criminality and may properly attract consecutive sentences. Consecutive sentences may also reflect offending committed in different periods and aggravating circumstances, provided the aggregate remains proportionate. Where individual sentences are appropriate but the total sentence is excessive, the court may adjust concurrency and reduce a sentence to achieve proportionality.

The appellant was sentenced by the Crown Court at Isleworth, before HHJ Nicholas Wood, on 6 October 2023 to an aggregate sentence of 7 years 8 months’ imprisonment for possessing indecent photographs of children and breaching sexual offence prevention orders. The sentence comprised consecutive sentences imposed in respect of a joint indictment and a committal for sentence.

With leave of the single judge, the appellant appealed against sentence. He accepted that the individual sentences were appropriate but argued that their structure produced a disproportionate total. He also submitted that the sentences for the two sets of sexual offence prevention order breaches should have been concurrent. The central issue was whether the sentence structure complied with the totality principle.

1. Appeal allowed in part. The aggregate sentence of 7 years 8 months was disproportionate in the particular circumstances, although the individual sentences were accepted to be appropriate.
2. The totality principle requires the overall sentence to reflect all the offending behaviour, its overall harm and culpability, relevant aggravating and mitigating factors, and the offender’s personal circumstances. The final sentence must be just and proportionate. There is no inflexible rule governing whether sentences should be concurrent or consecutive.
3. The court upheld the judge’s approach of treating possession of indecent photographs of children and breaches of the sexual offence prevention orders as separate and distinct criminality. Breach of such an order demonstrates disregard for court orders made for public protection. The judge was also entitled to make sentences for offending before July 2019 consecutive to sentences for later offending, where the later offending was aggravated by the appellant being under investigation and using software designed to conceal his activities, subject to overall proportionality.
4. To achieve proportionality, count 1 of the committal for sentence was made concurrent. The sentence on count 2 of that committal was reduced from 33 months to 30 months. The resulting aggregate sentence was 6 years 9 months.

• Court of Appeal (Criminal Division): On 17 September 2024, the appeal against sentence was allowed in part. The aggregate sentence was reduced from 7 years 8 months to 6 years 9 months: [2024] EWCA Crim 1147.
• Crown Court at Isleworth: On 6 October 2023, HHJ Nicholas Wood imposed the aggregate sentence of 7 years 8 months’ imprisonment.