R v Matthew McKennon

When sentence is passed for multiple serious offences, the totality principle requires a just and proportionate sentence reflecting all the offending and all relevant factors, including personal mitigation. The court should not calculate separate totality reductions for different groups of offences and then apply a further reduction to the aggregate. Nor should totality be assessed only by reference to the offences selected as the lead count. Where concurrent sentences are imposed on a lead count, a substantial upward adjustment beyond the guideline range for a single offence may be required to reflect the overall criminality. A sentence appeal will fail where the judge adopted that approach, properly assessed mitigation, and the resulting sentence is not arguably excessive.

Matthew McKennon pleaded guilty at the Central Criminal Court to seven serious offences arising from three organised drive-by shootings, including conspiracies to cause grievous bodily harm with intent, causing grievous bodily harm with intent, arson and possession of a firearm with intent to commit an indictable offence. On 6 November 2023, His Honour Judge Dugdale imposed an extended determinate sentence of 22 years, comprising 18 years’ custody and four years on extended licence.

The applicant renewed his application for leave to appeal against the custodial term. He argued that the notional sentence of 21 years on the lead count was excessive, that the totality principle had been misapplied, and that his basis of plea and mitigation had not been sufficiently recognised. The Court also considered an administratively recorded surcharge order.

The renewed application for leave to appeal against sentence was refused. The Court held as follows.

1. Totality. The totality principle requires the overall sentence for multiple offences to reflect all the offending and all relevant factors, including personal mitigation, while remaining just and proportionate. Consecutive sentences calculated separately for each offence would have produced a term exceeding 40 years, which would not have complied with that principle.
2. Lead-count approach. It was proper to select count 10 as a lead count and impose concurrent sentences on the remaining counts. The court must identify the appropriate sentence on the lead count and then exercise judgment on the adjustment required to reflect the totality of the offending. That adjustment may require a substantial increase beyond the guideline range for the lead offence considered in isolation.
3. Arithmetical analysis rejected. The proposed calculation made two separate allowances for totality: first for the conspiracies considered apart from the lead offence, and then for the combined offending. That approach was wrong in principle. It also ignored four other serious counts to which the applicant had pleaded guilty. The five-year increase applied by the sentencing judge was not excessive in light of the gravity of the overall offending.
4. The Court rejected the proposed interpretation of the basis of plea as inconsistent with the guilty plea. It was satisfied that the sentencing judge had fully taken account of the applicant’s personal mitigation.
5. Surcharge. The sentencing transcript did not show that a £190 surcharge had been specifically imposed. Under section 11(3) of the Criminal Appeal Act, the Court of Appeal had no power to impose the surcharge itself. Following R v Jones [2018] EWCA Crim 2994, the Crown Court record was directed to be corrected by removing the surcharge order.

1. Central Criminal Court: On 6 November 2023, His Honour Judge Dugdale sentenced the applicant to an extended determinate sentence of 22 years, comprising 18 years’ custody and four years on extended licence.
2. Court of Appeal (Criminal Division): The renewed application for leave to appeal against sentence was refused. The Crown Court record was corrected to remove the surcharge order. [2024] EWCA Crim 829