R v Shane Smith

The totality principle requires the overall sentence to reflect all the offending and to remain just and proportionate. Consecutive sentences may properly be imposed for offences with different characteristics, victims and criminality, even when committed during the same period, provided the overall tariff is adjusted to reflect totality. The appellate court assesses the sentence in the round and does not substitute a different structure merely because another structure might have been preferable. A concurrent sentence is not required simply because offences contain an element of acquisitive crime. Where a driving disqualification and extended-test requirement interact with an existing disqualification and an unexpired custodial sentence, the court must structure the order in accordance with sections 35A, 35B and 36 of the Road Traffic Offenders Act 1988.

The appellant appealed against an aggregate sentence of 11 years’ imprisonment imposed by the Crown Court at Luton for six burglaries and related offences including robbery, aggravated vehicle taking, handling stolen goods and dangerous driving. He had pleaded guilty and received 25 per cent credit. The appeal was brought on the sole ground that the sentencing judge had misapplied the Totality guideline by treating one burglary as the lead offence and imposing consecutive sentences for robbery and aggravated vehicle taking.

The appellant also challenged the consequential driving-disqualification orders. The central issues were whether the overall sentence was unjust or disproportionate, and whether the disqualification and extended-test requirements had been lawfully structured while an earlier custodial sentence and disqualification remained in force.

1. Appeal against sentence dismissed. The sentence of 11 years’ imprisonment was not manifestly excessive. The totality principle requires the overall sentence to reflect all the offending behaviour and to be just and proportionate. The court assessed the total sentence in the round, including the prolific nature of the offending, the appellant’s very poor record, multiple victims and limited mitigation.
2. There was no principle preventing consecutive sentences for the robbery and the aggravated vehicle taking and dangerous driving. Those offences were not part of a series of offences of the same or similar kind. They had distinct characteristics, different victims and separate aggravating features. Consecutive sentences were permissible provided that the overall tariff was adjusted to reflect totality. Another judge might have selected the robbery as the lead offence, but that did not make the structure adopted unlawful or disproportionate.
3. The appellant’s substance abuse and cyclical offending did not reduce the sentence required by totality. He was in any event facing a lengthy period of imprisonment, and treatment opportunities within custody did not alter whether the sentence was just and proportionate.
4. The order requiring the appellant to pass an extended driving test was unlawful under section 36(7) of the Road Traffic Offenders Act 1988, because an existing disqualification already required him to pass such a test. The Crown Court record was directed to be amended to delete that requirement. The appellant remained subject to the existing test requirement: R v Anderson [2013] EWCA Crim 3060.
5. The disqualification had not been pronounced or recorded in accordance with R v Needham & Ors [2016] EWCA Crim 455. The appropriate structure was a total disqualification of 10 years and 6 months, comprising an initial discretionary period of five years, a six-month extension under section 35A, and a five-year adjustment under section 35B. The Crown Court record was directed to be amended accordingly. Restructuring was limited by section 11(3) of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): Appeal against the Crown Court sentence dismissed. The Crown Court record was amended to remove the duplicated extended-test requirement and to record a 10-year-and-6-month disqualification.
• Crown Court at Luton: On 3 May 2024, the appellant was sentenced to a total of 11 years’ imprisonment for the offences described in the judgment.