R v Michael Henry McDonnell & Anor

There is no inflexible rule that sentences for related offences must be concurrent. Consecutive sentences may be imposed where the offences are distinct, provided the sentencing judge makes the downward adjustment ordinarily required to produce a just and proportionate total sentence. The appellate question is whether the total sentence is manifestly excessive for the offender’s overall criminality. An aggravating factor may apply to more than one offence, but it is not double counting if, considering the sentencing remarks as a whole, it has not produced a longer overall sentence than the criminality warrants.

Two appellants were sentenced in the Crown Court at Kingston for a county-lines operation involving the supply of Class A drugs and the trafficking of a 15-year-old boy for exploitation in drug dealing. Both were convicted after trial of the exploitation conspiracy and pleaded guilty to drug offences. Johnson also faced offences on a separate Reading indictment.

McDonnell appealed against a total sentence of 16 years and three months. Johnson appealed against a total sentence of 16 years and sought an extension of time. Limited leave was granted on totality. The Court also considered an apparent recording error concerning Johnson’s sentence on one count.

1. The court granted Johnson a four-day extension of time and limited leave on the issue of totality. It directed that the record of his sentence on count 7 be amended to six years, reflecting the sentencing judge’s clear intention.

2. The sentencing judge had correctly applied the totality guideline. There is no inflexible rule that all sentences on a single indictment must be concurrent. Consecutive sentences were permissible because the exploitation and drug conspiracies were distinct offences. Where consecutive sentences are imposed, some downward adjustment is ordinarily required to achieve a just and proportionate total sentence. The judge made substantial reductions to the drug sentences and, for Johnson, to the sentences on the separate indictment.

3. The appellate question was whether either total sentence was manifestly excessive for the overall offending. The judge was entitled to regard trafficking and exploiting a vulnerable 15-year-old for financial gain as serious, notwithstanding that he had previously been exploited or was willing to deal drugs. She was also entitled to place the drug conspiracy offending outside the category range because of the quantity of drugs and the appellants’ leading roles.

4. The repeated consideration of the same aggravating factors did not constitute impermissible double counting. On the sentencing remarks read as a whole, those factors had not led to a longer sentence overall. The judge had sufficiently explained the application of totality, taken the mitigation into account, and imposed sentences that were just and proportionate and far from manifestly excessive.

5. Both appeals against sentence were dismissed.

• Court of Appeal (Criminal Division): [2024] EWCA Crim 990. Appeals against sentence dismissed. The court granted Johnson an extension of time and directed correction of the sentence recorded for count 7.
• Crown Court at Kingston: On 20 October 2023, McDonnell was sentenced to 16 years and three months and Johnson to 16 years’ imprisonment.