R v Macauley Barry Robert Nesfield

On a reference under section 36 of the Criminal Justice Act 1988, the Court held that the totality principle does not justify a sentence which understates the gravity of prolonged domestic abuse. A judge may make one offence the lead offence and impose concurrent sentences, but must apply a sufficient uplift to reflect distinct serious offending and overall criminality. The resulting sentence must be just and proportionate. In a category 1A case, the notional sentence after trial may properly be placed at the top of the range before credit for a guilty plea.

The respondent pleaded guilty to controlling or coercive behaviour and two offences of violence arising from a prolonged course of domestic abuse. The Crown Court at York imposed a total sentence of 27 months' imprisonment, with the sentences for the two assault offences concurrent with the lead sentence. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, alleging that it was unduly lenient. The central issue was whether the sentence structure and the uplift applied to the lead offence adequately reflected the overall criminality.

1. The application was granted. The total sentence was unduly lenient because the sentence on the lead count did not sufficiently reflect the true gravity of the overall offending.
2. In exercising its jurisdiction under section 36 of the Criminal Justice Act 1988, the court does not simply sentence the offender afresh as if sitting at first instance. The sentencing judge retains discretion as to structure. It was open to the judge to make the controlling and coercive behaviour count the lead offence and to impose concurrent sentences on the other counts.
3. That discretion did not justify an inadequate uplift. The repeated actual violence, the serious harm and the impact on the children required the lead sentence to reflect the overall criminality. The court rejected the submission that persistence over a prolonged period, already reflected in the category classification, necessarily required a further separate adjustment. The totality principle did not permit simple addition of the sentences that might otherwise have been imposed for each offence. It required an overall sentence that was just and proportionate.
4. The offending was properly treated as category 1A under the controlling and coercive behaviour guideline, with a starting point of 2 years 6 months and a range of 1 to 4 years' custody. The appropriate notional sentence after trial was at the top of that range, namely 4 years. Applying the agreed 25 per cent credit for the guilty pleas produced a sentence of 3 years' imprisonment. The sentences on the other counts remained concurrent and were not altered.

• Court of Appeal (Criminal Division): On 26 February 2025, under section 36 of the Criminal Justice Act 1988, the court granted the reference and substituted a sentence of 3 years' imprisonment on count 1: [2025] EWCA Crim 233.
• Crown Court at York: On 4 December 2024, Her Honour Judge Sherwin sentenced the respondent to 27 months' imprisonment, comprising 27 months on count 1 and concurrent sentences of 12 months on counts 9 and 10.