R v Barry Brown & Anor

The totality principle permits consecutive sentences for offences arising from a common motivation where the offences are distinct in time and place. The controlling question is whether the aggregate sentence is just and proportionate to the offender’s overall criminality. Comparison with a co-defendant’s sentence is not decisive.

For violent disorder, culpability and harm must be assessed under the applicable guideline. A planned group attack on a smaller group, with a victim targeted by several offenders, may fall within category A culpability. Serious injury, fear and distress do not necessarily amount to category 1 harm without multiple category 2 factors. The sentence may then be adjusted for aggravating features, mitigation and guilty plea credit.

Daniel Kent and Barry Brown appealed against sentences imposed by HHJ Gold KC at Lewes Crown Court. Kent received an aggregate sentence of 48 months, including a consecutive 12-month sentence for burglary. Brown received 36 months for violent disorder and assault.

The appellants argued that Kent’s burglary sentence should have been concurrent, that the violent disorder should have been placed in a lower guideline category, and that Brown’s sentence should consequently be reduced or suspended. The central issues were totality and the correct categorisation of the violent disorder.

Both appeals against sentence were dismissed.

1. Totality and burglary. There was no error in principle in imposing a consecutive sentence on Kent for burglary. Although revenge against the Vikings motivated all the offending, the burglary was a distinct offence committed at a different time and location. The burglary properly fell within category 1A of the non-domestic burglary guideline, with a two-year starting point. The reduction to 12 months adequately reflected mitigation and totality.
2. Co-defendant comparison. The concurrent sentence imposed on Shaw for burglary did not require a concurrent sentence for Kent. A concurrent sentence can aggravate the sentence imposed for the principal offence. The relevant question remained whether Kent’s overall sentence was just and proportionate to his overall offending.
3. Violent disorder categorisation. The offending was not realistically an attack by seven Hells Angels on six Vikings. Three Vikings escaped immediately, leaving three targeted individuals. In particular, Worsfold was attacked simultaneously by three men. The offence therefore involved category A culpability. The harm was category 2: there was serious physical injury, fear and distress, but not multiple category 2 factors sufficient to amount to category 1 harm. The correct category was therefore 2A, with a three-year starting point and a range of two to four years.
4. Sentence. Revenge, planning, persistence in tracking down the Vikings, the public location and significant violence, including use of an extendable baton, kicking and stamping, were aggravating features. The offending justified 48 months for violent disorder and assault before mitigation. The judge’s reduction to 40 months, followed by 10 per cent credit for the late guilty pleas, was adequate. The remaining grounds concerning parity and suspension consequently fell away.

• Lewes Crown Court. HHJ Gold KC sentenced Kent to an aggregate term of 48 months, including a consecutive sentence for burglary, and Brown to 36 months’ imprisonment.
• Court of Appeal (Criminal Division). The court heard the appeals against sentence with leave and dismissed both appeals: [2024] EWCA Crim 1329.