R v Simon Smith

In sentencing multiple offences, the totality principle requires an overall sentence that is just and proportionate. It does not impose a formulaic reduction or require concurrent sentences. Consecutive sentences may be appropriate where offences represent separate criminality, even if they concern the same item or one offence brings another to light. Express reference to totality is unnecessary; the appellate court may assess it from the sentencing judge’s reasons, including the relevant facts, aggravating and mitigating circumstances, and guideline calibration. Categorisation of indecent images under sentencing guidelines is not a statutory element relevant to guilt. The sentencing judge determines the appropriate category.

The appellant pleaded guilty in the magistrates’ court and was committed to the Crown Court at Ipswich for sentence. On 11 August 2025, he received 3 years 4 months’ imprisonment for offences involving indecent images of children, breach of a sexual harm prevention order and failures under the Sexual Offences Act 2003, with no separate penalty for other offences. The sentences for three pairs of offences were consecutive. An image charged as category C was sentenced as category B. On appeal by leave of the Single Judge, the appellant argued that the categorisation was unlawful and that totality required concurrent sentences because the images were found on a phone whose acquisition breached the order. The central issues were whether the sentence was unlawful or manifestly excessive.

The appeal was dismissed.

1. Image categorisation. The court applied R v Dodd [2013] EWCA Crim 660, holding that categorisation of indecent images under the relevant sentencing guideline is irrelevant to guilt and is ultimately for the sentencing judge. The categories are guideline categories, not statutory categories. The evidence established that the disputed image was category B, and the error in the charge and memorandum of conviction did not prevent sentencing on that basis.
2. Totality. Relying on R v Bailey [2020] EWCA Crim 1719 and [2021] 2 Cr App R (S) 15, the court confirmed that the overall sentence must be just and proportionate. No particular words are required. Totality is not a formulaic reduction of individual sentences, and there is no inflexible rule requiring concurrency. Consecutive sentences do not, by themselves, show that totality was overlooked.
3. Application. The sentencing judge had sentenced the offences in pairs, made the sentences within each pair concurrent, generally stayed at or below guideline starting points, made no uplift for previous convictions and imposed no separate penalties for the drug and failure-to-surrender offences. The unreported possession of the phone was separate criminality from downloading indecent images onto it. Consecutive sentences between the pairs were therefore correct in principle.
4. Standing back, the total sentence of 5 years before credit for guilty pleas, reduced to 40 months, was just and proportionate. It was neither manifestly excessive nor wrong in principle.

• Crown Court at Ipswich. On 11 August 2025, the appellant was sentenced to 3 years 4 months’ imprisonment for offences involving indecent images, breach of a sexual harm prevention order and notification failures.
• Court of Appeal (Criminal Division). Leave to appeal against sentence was granted on the issue of totality. The appeal was dismissed: [2026] EWCA Crim 1123 .