R v James Arthur George Gathercole

A sentencing judge may exceed the range in sentencing guidelines where the offender is particularly persistent, and may do so substantially where the facts justify it. Separate offences involving different victims may warrant consecutive sentences. The totality principle nevertheless requires a reasonable adjustment to the aggregate sentence. A sentence that effectively exceeds the statutory maximum for each offence, subject only to credit for a guilty plea, may be manifestly excessive. The proper approach is to assess the individual sentences and then ensure that the total sentence is proportionate.

After pleading guilty to two offences of intentional exposure, the appellant was sentenced by the Crown Court at Inner London to 16 months’ imprisonment on each count, consecutively, making 32 months. He appealed against sentence, arguing that the offending fell within Category 2 of the sentencing guidelines, that concurrent sentences were appropriate, that the totality principle had not been observed, and that insufficient credit had been given for his early guilty pleas. The central issues were whether the sentencing judge was entitled to exceed the guideline range, impose consecutive sentences, and impose the resulting aggregate sentence.

The appeal was allowed in part. The sentences of 16 months on each count were quashed. The court substituted consecutive sentences of 12 months on each count, making a total of 24 months’ imprisonment.

1. The sentencing judge was not confined to the range in the sentencing guidelines. The appellant was a particularly persistent offender, with numerous previous convictions including 20 offences of exposure. The judge was entitled to sentence outside the guideline range, and substantially so on the facts.
2. There was no error in imposing consecutive sentences. The offences were separate, involved different victims, and plainly warranted consecutive terms.
3. The appellant received proper credit for his guilty pleas. A one-third reduction had been allowed on each count.
4. The aggregate sentence was nevertheless manifestly excessive. A total of 32 months represented twice the maximum permitted for the offences, subject only to the guilty plea reduction. Applying a reasonable adjustment for totality, the appropriate sentence was 18 months on each count before credit for the pleas, resulting in 12 months on each count and a total of 24 months.

• Court of Appeal (Criminal Division): On 20 December 2024, the appeal was allowed in part and the sentences were reduced to consecutive terms of 12 months, totalling 24 months: [2024] EWCA Crim 1610.
• Crown Court at Inner London: The appellant was sentenced to 16 months’ imprisonment on each count, consecutively, following guilty pleas.