R v Michael Ian Graham

When sentencing for a new offence, a court may take into account a custodial sentence already served for similar offences. That exercise is distinct from applying the totality principle. The judge should consider all relevant circumstances, including the recency, similarity and temporal overlap of the offending, whether further offences could have been brought before the court, public-interest concerns about an undeserved benefit, age and health, prison conduct, and whether consecutive sentences would offend totality. After setting the sentence for the new offences, the judge may make a further allowance, although none may be necessary. Youth at the time, a long period without further offending and the historical maximum sentence may cumulatively render a sentence manifestly excessive. A short incident is better treated as the absence of aggravation than as positive mitigation.

The applicant was convicted at the Crown Court at Leeds of one count of buggery contrary to section 12(1) of the Sexual Offences Act 1956. The offence occurred between September 1989 and September 1991, when he was aged between 20 and 22; sentencing proceeded on the basis that J was aged 16. In 2012, the applicant had received four years’ imprisonment for ten other sexual offences against boys committed during a substantially overlapping period.

On 15 January 2024, the Crown Court imposed seven years’ imprisonment. The applicant sought an extension of time and leave to appeal, arguing that insufficient weight had been given to youth, the short duration of the incident, the passage of time and the absence of further offending, and that insufficient account had been taken of the earlier sentence. The central issues were whether the sentence was manifestly excessive and how the earlier sentence should be considered.

The extension of time and leave to appeal were granted. The substantive appeal was allowed: the seven-year sentence was quashed and a sentence of five years’ imprisonment was imposed.

1. Mitigation and aggravation. The appellant’s attempt to contact J after 30 years was a proper aggravating factor and the only aggravating factor identified. A defendant in the early years of adulthood may be less mature than an older defendant, making age relevant mitigation. The short duration of the incident was better regarded as the absence of an aggravating feature, because the offence was complete once penetration occurred. The long passage of time, particularly in the absence of further offending, was a mitigating factor which the sentencing judge had not expressly addressed.
2. Previous sentence and totality. The issue was not properly characterised as applying the totality principle: R v Cosburn [2013] EWCA Crim 1815. Nevertheless, a sentencing court has a discretion to take into account a sentence already served for similar offences. Applying the nuanced approach summarised in R v Green [2019] EWCA Crim 196, the judge should consider all relevant circumstances, including:
   • the recency, similarity and temporal overlap of the offences;
   • whether the offender could realistically have brought further offending before the court;
   • whether allowing for the earlier sentence would confer an undeserved benefit contrary to the public interest;
   • the offender’s age, health and conduct in prison; and
   • whether the aggregate sentences would offend totality if imposed together.
   After determining the appropriate sentence for the new offences, the judge retains a discretion to make a further allowance for the earlier sentence. A further reduction may be unnecessary or undesirable.
3. Application. The earlier sentence had been imposed 11 years before and concerned similar sexual offences committed during an overlapping period. Although the appellant could have attempted to bring further offences before the court in 2012, taking the earlier sentence into account would not confer an undeserved benefit. The appellant was now 55 and no relevant health issues had been identified. Without allowance for the earlier sentence, the combined terms would have offended totality. The cumulative effect of the appellant’s age at the time, the passage of time without further offending, the historical maximum of ten years and the relevant totality considerations made seven years manifestly excessive.

The appellant was to be released no later than halfway through the five-year sentence, after two years and six months, with the balance served on licence.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1764, the court granted an extension of time and leave to appeal, quashed the seven-year sentence and imposed five years’ imprisonment.
• Crown Court at Leeds: Following conviction on 11 January 2024, the court sentenced the applicant on 15 January 2024 to seven years’ imprisonment.