R v BRD

In a sentencing appeal involving multiple offences, the totality principle requires the aggregate sentence to be just and proportionate to the offending viewed as a whole. Concurrent sentences are not mandatory merely because offences are close in time; different victims and separate offending may justify consecutive terms. A multi-incident count may warrant a sentence above the guideline range for a single offence where persistence and duration are reflected. Additional aggravating features not included in categorisation may justify movement towards the top of a guideline range. Where a total term of four to seven years consists of consecutive terms, each below four years, the statutory two-thirds release rule for an individual offence is not engaged.

The appellant pleaded guilty in the Crown Court at Woolwich to offences involving indecent images of children and voyeurism. On 6 October 2023, he received a total sentence of five years’ imprisonment, together with notification requirements, a Sexual Harm Prevention Order and a Restraining Order.

He appealed against sentence by leave. He argued that the notional sentences were excessive, that the sentences for the voyeurism counts should have been concurrent, and that the totality principle had not been properly applied. The court also considered an error in the calculation of the custodial period before release. The central issues were whether the sentence was manifestly excessive and how the statutory release provisions applied to consecutive sentences.

1. The appeal was allowed in part. The sentence of 21 months’ imprisonment on count 2 was quashed and replaced with one of 11 months. The total sentence was thereby reduced from 60 months to 50 months, or four years and two months. All other sentencing features and ancillary orders remained unchanged.
2. Count 1 involved the appellant personally observing and photographing the victim. Although charged under section 1 of the Protection of Children Act 1978, the offending was akin to voyeurism and was properly assessed under the guideline category for producing a category C image. The ten-month sentence was not criticised.
3. Counts 6 and 7 were category 1 voyeurism offences. The guideline starting point for a single offence was six months, with a range extending to 18 months. The court was entitled to take account of aggravating features beyond those reflected in categorisation, including the bathroom location, the duration and intimacy of the recordings, their impact, planning, recording and abuse of trust. For the multi-incident count, it was not wrong in principle to start above the range for a single offence, given the persistence and duration of the conduct.
4. Concurrent sentences were not mandatory merely because counts 6 and 7 were committed close in time. The existence of two victims, and the temporal separation of count 1 from counts 6 and 7, justified consecutive sentences. Viewed in isolation, those sentences were not excessive.
5. The aggregate sentence was nevertheless manifestly excessive. The Recorder had given insufficient effect to totality by making only modest reductions to individual sentences. The aggregate sentence had to be no more than just and proportionate to the offending as a whole. Reducing the lead sentence on count 2 was the appropriate correction.
6. The Police, Crime, Sentencing and Courts Act 2022 increased the custodial proportion before automatic release to two-thirds in certain cases involving an individual sentence of between four and seven years. That provision was not triggered where the total term in that range comprised consecutive periods, each shorter than four years. The appellant should therefore have been told that half of the total sentence was the minimum custodial period. Following the reduction, the relevant period was 25 months.

• Court of Appeal (Criminal Division): On 14 June 2024, allowed the appeal in part, substituted 11 months for the 21-month sentence on count 2, and reduced the total sentence to 50 months.
• Crown Court at Woolwich: On 6 October 2023, sentenced the appellant to five years’ imprisonment after guilty pleas, and imposed a ten-year Sexual Harm Prevention Order and a Restraining Order until further order.