R v Nicholas Ikunnah

Where several offences form a persistent course of conduct, sentencing should assess the conduct as a whole. Separate counts may properly attract concurrent sentences reflecting the overall seriousness, rather than identical consecutive terms imposed simply because the conduct is separately charged. An offence forming a further element or escalation of the course may be included in that assessment. The sentencing court must explain its application of offence-specific guidelines, guilty-plea credit and totality. Later offending may properly be sentenced consecutively where it represents a significant escalation, but totality and plea credit remain relevant.

The appellant appealed against an aggregate sentence of 39 months’ imprisonment imposed by the Crown Court at Nottingham on 3 August 2023. He had pleaded guilty to nine offences arising from persistent conduct towards a former partner, including breaches of a non-molestation order, disclosure of a private sexual image, witness intimidation and malicious communications. A separate assault on an emergency worker was also sentenced consecutively and was not challenged.

The appeal alleged that the sentencing court had failed properly to apply the offence-specific guidelines, give credit for guilty pleas and apply the totality principle. The central issue was whether the individual sentences and their consecutive structure produced a manifestly excessive total sentence.

The appeal was allowed in part. The aggregate sentence was reduced from 39 months’ to 31 months’ imprisonment.

1. The sentencing judge had not explained how the applicable offence-specific guidelines, guilty-plea credit or totality had affected the individual sentences. That omission made it difficult for the appellant to understand the assessment of seriousness and for the appellate court to evaluate the sentence.
2. The breaches of the non-molestation order were properly assessed as a single course of conduct. The relevant conduct was a very serious and persistent breach causing substantial, but not very serious, distress. Under the protective-order guideline this was culpability A, category 2 harm and category 2A overall, with a one-year custodial starting point and a range up to two years. The private-image offence was itself of modest severity, involving limited distress and medium culpability. It was nevertheless a further element and escalation of the same course of conduct. Counts 2 and 5 to 9 should therefore have received concurrent sentences of 16 months’ imprisonment.
3. The later witness-intimidation and malicious-communications episode was a significant escalation, involving threats of serious violence and an attempt improperly to influence the criminal justice process. Those counts were rightly sentenced together but consecutively to the earlier course. A 12-month term might have been appropriate after trial without a totality issue, but the appellant’s guilty plea, age and lack of a previous custodial sentence required reduction. The term was reduced to nine months, with the counts concurrent with each other.
4. The unchallenged six-month sentence for assault on an emergency worker remained consecutive. The substituted sentences were accordingly 16 months on counts 2 and 5 to 9 concurrently, six months on count 10, and nine months on counts 12 and 13 concurrently but consecutive to the other sentences.

• Crown Court at Nottingham: On 3 August 2023, Mr Recorder Stephens imposed an aggregate sentence of 39 months’ imprisonment after guilty pleas to nine counts.
• Court of Appeal (Criminal Division): The appeal against sentence was allowed in part and substituted sentences reduced the total to 31 months’ imprisonment: [2024] EWCA Crim 40.