R v Stephen Brown

When sentencing an offender for offences committed before offences for which an earlier indeterminate sentence was imposed, the court must first sentence the instant offences, applying totality to them alone. It then has a discretion whether to make further allowance for the earlier sentence, considering all the circumstances and the non-exhaustive factors in the Totality guideline. Where the offender has served a long period under a life sentence and has been released on licence, the impact of that sentence requires a fact-specific assessment. Appellate review asks whether relevant matters were considered, irrelevant matters excluded, and a decision within the proper discretionary range reached. It is not a judicial-review exercise.

The offender pleaded guilty to eleven historic sexual offences against two children, committed before his conviction and life sentence for offences against a third child. The Crown Court at Preston imposed community orders with residence requirements. The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was how far the earlier life sentence, including 22 years in custody and subsequent release on licence, should affect sentence for the earlier offences.

Disposition. The court granted leave to refer under section 36 of the Criminal Justice Act 1988, but dismissed the application. The sentences imposed by the Crown Court therefore remained in force.

1. The court adopted the two-stage approach in the Totality guideline. The judge must first determine the appropriate sentence for the instant offences, applying totality to those offences alone. The judge then has a discretion whether to make further allowance for an earlier sentence, whether or not it has been fully served, having regard to all the circumstances.
2. That approach also applies where the earlier sentence is an indeterminate life sentence imposed for later offending. Its effect in the unusual circumstances of this case requires a fact-specific assessment as part of the overall circumstances.
3. The reference to irrationality in R v Green [2019] EWCA Crim 196 expressed the conventional appellate approach. The question is whether relevant matters were considered, irrelevant matters excluded, and a decision within the range properly open to the sentencing judge reached. This is not an application for judicial review. Sentencing remarks should not be subjected to minute textual analysis to construct an allegation of irrationality.
4. The relevant factors included the age of the earlier sentence, similarity and temporal overlap between the offences, the possibility of cleaning the slate, any undeserved bonus, mandatory minimum sentences, age and health, and the need for downward adjustment to achieve a just and proportionate total sentence. The offender’s 22 years in custody under the life sentence was an additional significant consideration.
5. The actual period in custody exceeded the longest term that could appropriately be imposed as punishment for the instant offences. The offender had also been released on life licence, and any further detention would interact with continuing Parole Board consideration. In those circumstances the judge was entitled to take the earlier life sentence into account and impose no further immediate custodial sentence.

1. Court of Appeal (Criminal Division): Leave to refer was granted, but the Attorney General’s reference was dismissed. The sentence was not unduly lenient.
2. Crown Court at Preston: On 8 May 2025, community orders with residence requirements were imposed for the eleven offences.