Totality

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders, whose cases are dealt with on or after 11 June 2012.

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010:

“Every court -

  1. must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and
  2. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies when sentencing an offender for multiple offences or when sentencing an offender who is already serving an existing sentence. In these situations, the courts should apply the principle of totality.

General principles

The principle of totality comprises two elements:

  1. All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence.
  2. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.

Concurrent/consecutive sentences

There is no inflexible rule governing whether sentences should be structured as concurrent or consecutive components. The overriding principle is that the overall sentence must be just and proportionate.

General approach (as applied to Determinate Custodial Sentences)

1. Consider the sentence for each individual offence, referring to the relevant sentencing guidelines.

2. Determine whether the case calls for concurrent or consecutive sentences.

Concurrent sentences will ordinarily be appropriate where:

a) offences arise out of the same incident or facts. Examples include:

  • a single incident of dangerous driving resulting in injuries to multiple victims;1
  • robbery with a weapon where the weapon offence is ancillary to the robbery and is not distinct and independent of it;2
  • fraud and associated forgery;
  • separate counts of supplying different types of drugs of the same class as part of the same transaction.

b) there is a series of offences of the same or similar kind, especially when committed against the same person. Examples include:

  • repetitive small thefts from the same person, such as by an employee;
  • repetitive benefit frauds of the same kind, committed in each payment period.

Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences.

Examples include:

  • a single incident of dangerous driving resulting in injuries to multiple victims where there are separate charges relating to each victim. The sentences should generally be passed concurrently, but each sentence should be aggravated to take into account the harm caused;
  • repetitive fraud or theft, where charged as a series of small frauds/thefts, would be properly considered in relation to the total amount of money obtained and the period of time over which the offending took place. The sentences should generally be passed concurrently, each one reflecting the overall seriousness;
  • robbery with a weapon where the weapon offence is ancillary to the robbery and is not distinct and independent of it. The principal sentence for the robbery should properly reflect the presence of the weapon. The court must avoid double-counting and may deem it preferable for the possession of the weapon’s offence to run concurrently to avoid the appearance of under-sentencing in respect of the robbery.3

Consecutive sentences will ordinarily be appropriate where:

a) offences arise out of unrelated facts or incidents. Examples include:

  • where the offender commits a theft on one occasion and a common assault against a different victim on a separate occasion;
  • an attempt to pervert the course of justice in respect of another offence also charged;4
  • a Bail Act offence;5
  • any offence committed within the prison context;
  • offences that are unrelated because whilst they were committed simultaneously they are distinct and there is an aggravating element that requires separate recognition, for example:
    • an assault on a constable committed to try to evade arrest for another offence also charged;6
    • where the defendant is convicted of drug dealing and possession of a firearm offence. The firearm offence is not the essence or the intrinsic part of the drugs offence and requires separate recognition;7
    • where the defendant is convicted of threats to kill in the context of an indecent assault on the same occasion, the threats to kill could be distinguished as a separate element.8

b) offences that are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences. Examples include:

  • where offences committed against different people, such as repeated thefts involving attacks on several different shop assistants;9
  • where offences of domestic violence or sexual offences are committed against the same individual.

c) one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.10

However, it is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty.11

Where consecutive sentences are to be passed add up the sentences for each offence and consider if the aggregate length is just and proportionate.

If the aggregate length is not just and proportionate the court should consider how to reach a just and proportionate sentence. There are a number of ways in which this can be achieved. Examples include:

  • when sentencing for similar offence types or offences of a similar level of severity the court can consider:
    • whether all of the offences can be proportionately reduced (with particular reference to the category ranges within sentencing guidelines) and passed consecutively;
    • whether, despite their similarity, a most serious principal offence can be identified and the other sentences can all be proportionately reduced (with particular reference to the category ranges within sentencing guidelines) and passed consecutively in order that the sentence for the lead offence can be clearly identified.
  • when sentencing for two or more offences of differing levels of seriousness the court can consider:
    • whether some offences are of such low seriousness in the context of the most serious offence(s) that they can be recorded as ‘no separate penalty’ (for example technical breaches or minor driving offences not involving mandatory disqualification);
    • whether some of the offences are of lesser seriousness and are unrelated to the most serious offence(s), that they can be ordered to run concurrently so that the sentence for the most serious offence(s) can be clearly identified.

3. Test the overall sentence(s) against the requirement that they be just and proportionate.

4. Consider whether the sentence is structured in a way that will be best understood by all concerned with it.

Specific applications: custodial sentences

Existing determinate sentence, where determinate sentence to be passed
Circumstance Approach
Offender serving a determinate sentence
(Offence(s) committed before original sentence imposed)
Consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, an adjustment should be made to the sentence imposed for the latest offence.
Offender serving a determinate sentence
(Offence(s) committed after original sentence imposed)
Generally the sentence will be consecutive as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Where a prisoner commits acts of violence in prison custody, any reduction for totality is likely to be minimal.12
Offender serving a determinate sentence but released from custody The new sentence should start on the day it is imposed: s 265 Criminal Justice Act 2003 prohibits a sentence of imprisonment running consecutively to a sentence from which a prisoner has been released. The sentence for the new offence will take into account the aggravating feature that it was committed on licence. However, it must be commensurate with the new offence and cannot be artificially inflated with a view to ensuring that the offender serves a period in custody additional to the recall period (which will be an unknown quantity in most cases);13 this is so even if the new sentence will in consequence add nothing to the period actually served.
Offender subject to a s116 return to custody
The powers under s116 Powers Criminal Court (Sentencing) Act 2000 remains available where the offender:

  • has been released from a sentence of less than 12 months.14
  • committed his offence before 4 April 2005 and is released from a sentence of less than 4 years.15
  • committed his offence before 4 April 2005 and is released from a sentence of over 4 years following a Parole Board recommendation, or after serving two-thirds of his sentence under section 33(b) Criminal Justice Act 1991.)16
The period of return under s116 can either be ordered to be served before or concurrently with the sentence for the new offence. In either case the period of return shall be disregarded in determining the appropriate length of the new sentence.
Offender sentenced to a determinate term and subject to an existing suspended sentence order Where an offender commits an additional offence during the operational period of a suspended sentence and the court orders the suspended sentence to be activated, the additional sentence will generally be consecutive to the activated suspended sentence, as it will arise out of unrelated facts.

 

Extended sentences for public protection

Circumstance Approach
Extended sentences – using multiple offences to calculate the requisite determinate term In the case of extended sentences imposed under the Criminal Justice Act 2003, providing there is at least one specified offence, the threshold requirement under s227 (2B) Criminal Justice Act 2003 is reached if the total determinate sentence for all offences (specified or not) would be four years or more. The extended sentence should be passed either for one specified offence or concurrently on a number of them. Ordinarily either a concurrent determinate sentence or no separate penalty will be appropriate to the remaining offences.17
The extension period is such as the court considers necessary for the purpose of protecting members of the public from serious harm caused by the offender committing further specified offences.18 The extension period must not exceed five years (or eight for a sexual offence). The whole aggregate term must not exceed the statutory maximum.
The custodial period must be adjusted for totality in the same way as determinate sentences would be. The extension period is measured by the need for protection and therefore does not require adjustment.

 

Indeterminate sentences

Circumstance Approach
Imposing multiple indeterminate sentences on the same occasion and using multiple offences to calculate the minimum term for an indeterminate sentence Indeterminate sentences should start on the date of their imposition and so should generally be ordered to run concurrently.If any offence is a serious and specified one and it appears that the defendant is dangerous within the meaning of the dangerousness provisions of the Criminal Justice Act 2003 then:

  1. first assess the notional determinate term for all offences (serious specified or otherwise), adjusting for totality in the usual way;19
  2. ascertain whether the total determinate term would be four years or more, or the offender has previously been convicted of a Schedule 15A offence; if so an indeterminate sentence may be passed; and
  3. the indeterminate sentence should generally be passed concurrently on all serious specific offences, but there may be some circumstances in which it suffices to pass it on a single such offence.
Indeterminate sentence (where the offender is already serving an existing determinate sentence)

 

It is generally undesirable to order an indeterminate sentence to be served consecutively to any other period of imprisonment on the basis that indeterminate sentences should start on their imposition.20
The court should instead order the sentence to run concurrently but can adjust the minimum term for the new offence to reflect half of any period still remaining to be served under the existing sentence (to take account of the early release provisions for determinate sentences). The court should then review the minimum term to ensure that the total sentence is just and proportionate.
Indeterminate sentence (where the offender is already serving an existing indeterminate sentence) It is generally undesirable to order an indeterminate sentence to be served consecutively to any other period of imprisonment on the basis that indeterminate sentences should start on their imposition. However, where necessary the court can order an indeterminate sentence to run consecutively to an indeterminate sentence passed on an earlier occasion.21 The second sentence will commence on the expiration of the minimum term of the original sentence and the offender will become eligible for a parole review after serving both minimum terms.22 The court should consider the length of the aggregate minimum terms that must be served before the offender will be eligible for consideration by the Parole Board. If this is not just and proportionate, the court can adjust the minimum term.
Ordering a determinate sentence to run consecutively to an indeterminate sentence The court can order a determinate sentence to run consecutively to an indeterminate sentence. The determinate sentence will commence on the expiry of the minimum term of the indeterminate sentence and the offender will become eligible for a parole review after serving half of the determinate sentence.23 The court should consider the total sentence that the offender will serve before becoming eligible for consideration for release. If this is not just and proportionate, the court can reduce the length of the determinate sentence, or alternatively, can order the second sentence to be served concurrently.

 

Specific applications: non-custodial sentences

Multiple fines for non-imprisonable offences

Circumstance Approach
Offender convicted of more than one offence where a fine is appropriate The total is inevitably cumulative. The court should determine the fine for each individual offence based on the seriousness of the offence24 and taking into account the circumstances of the case including the financial circumstances of the offender so far as they are known, or appear, to the court.25 The court should add up the fines for each offence and consider if they are just and proportionate. If the aggregate total is not just and proportionate the court should consider how to reach a just and proportionate fine. There are a number of ways in which this can be achieved.

For example:

  • where an offender is to be fined for two or more offences that arose out of the same incident or where there are multiple offences of a repetitive kind, especially when committed against the same person, it will often be appropriate to impose for the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. No separate penalty should be imposed for the other offences.
  • where an offender is to be fined for two or more offences that arose out of different incidents, it will often be appropriate to impose a separate fine for each of the offences. The court should add up the fines for each offence and consider if they are just and proportionate. If the aggregate amount is not just and proportionate the court should consider whether all of the fines can be proportionately reduced. Separate fines should then be passed.

Where separate fines are passed, the court must be careful to ensure that there is no double-counting.26
Where compensation is being ordered, that will need to be attributed to the relevant offence as will any necessary ancillary orders.

Multiple offences attracting fines – crossing the community threshold If the offences being dealt with are all imprisonable, then the community threshold can be crossed by reason of multiple offending, when it would not be crossed for a single offence.27 However, if the offences are non-imprisonable (e.g. driving without insurance) the threshold cannot be crossed.28

 

Fines in combination with other sentences

Circumstance Approach
A fine may be imposed in addition to any other penalty for the same offence except:

 

  • a hospital order;29
  • a discharge;30
  • a sentence fixed by law31 (minimum sentences, EPP, IPP);
  • a minimum term imposed under s 110(2) or s 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000;32
  • a life sentence imposed under section 225 (2) Criminal Justice Act 2003 or a sentence of detention for life for an offender under 18 under section 226 (2) Criminal Justice Act 2003.33
Fines and determinate custodial sentences A fine should not generally be imposed in combination with a custodial sentence because of the effect of imprisonment on the means of the defendant. However, exceptionally, it may be appropriate to impose a fine in addition to a custodial sentence where:

  • the sentence is suspended;
  • a confiscation order is not contemplated; and
  • there is no obvious victim to whom compensation can be awarded; and
  • the offender has, or will have, resources from which a fine can be paid.

 

Community orders

Circumstance Approach
Multiple offences attracting community orders – crossing the custody threshold If the offences are all imprisonable and none of the individual sentences merit a custodial sentence, the custody threshold can be crossed by reason of multiple offending.34 If the custody threshold has been passed, the court should refer to the offence ranges in sentencing guidelines for the offences and to the general principles.
Multiple offences, where one offence would merit immediate custody and one offence would merit a community order A community order should not be ordered to run consecutively to or concurrently with a custodial sentence. Instead the court should generally impose one custodial sentence that is aggravated appropriately by the presence of the associated offence(s). The alternative option is to impose no separate penalty for the offence of lesser seriousness.
Offender convicted of more than one offence where a community order is appropriate A community order is a composite package rather than an accumulation of sentences attached to individual counts. The court should generally impose a single community order that reflects the overall criminality of the offending behaviour. Where it is necessary to impose more than one community order, these should be ordered to run concurrently and for ease of administration, each of the orders should be identical.
Offender convicted of an offence while serving a community order The power to deal with the offender depends on his being convicted whilst the order is still in force;35 it does not arise where the order has expired, even if the additional offence was committed whilst it was still current.
If an offender, in respect of whom a community order made by a magistrates’ court is in force, is convicted by a magistrates’ court of an additional offence, the magistrates’ court should ordinarily revoke the previous community order and sentence afresh for both the original and the additional offence.
Where an offender, in respect of whom a community order made by a Crown Court is in force, is convicted by a magistrates’ court, the magistrates’ court may, and ordinarily should, commit the offender to the Crown Court, in order to allow the Crown Court to re-sentence for the original offence and the additional offence.
The sentencing court should consider the overall seriousness of the offending behaviour taking into account the additional offence and the original offence. The court should consider whether the combination of associated offences is sufficiently serious to justify a custodial sentence.
If the court does not consider that custody is necessary, it should impose a single community order that reflects the overall totality of criminality. The court must take into account the extent to which the offender complied with the requirements of the previous order.

 

Disqualifications from driving

Circumstance Approach
Offender convicted of two or more obligatory disqualification offences (s34(1) Road Traffic Offender Act 1988) The court must impose an order of disqualification for each offence unless for special reasons it does not disqualify the offender.36 All orders of disqualification imposed by the court on the same date take effect immediately and cannot be ordered to run consecutively to one another. The court should take into account all offences when determining the disqualification periods and should generally impose like periods for each offence.
Offender convicted of two or more offences involving either:

  1. discretionary disqualification and obligatory endorsement from driving, or
  2. obligatory disqualification but the court for special reasons does not disqualify the offender

and the penalty points to be taken into account number 12 or more (ss28 and 35 Road Traffic Offender Act 1988)

Where an offender is convicted on same occasion of more than one offence to which section 35(1) Road Traffic Offender Act 1988 applies, only one disqualification shall be imposed on him.37 However the court must take into account all offences when determining the disqualification period. For the purposes of appeal, any disqualification imposed shall be treated as an order made on conviction of each of the offences.38
Other combinations involving more two or offences involving discretionary disqualification As orders of disqualification take effect immediately, it is generally desirable for the court to impose a single disqualification order that reflects the overall criminality of the offending behaviour.

 

Compensation orders

Circumstance Approach
Global compensation orders The court should not fix a global compensation figure unless the offences were committed against the same victim.39 Where there are competing claims for limited funds, the total compensation available should normally be apportioned on a pro rata basis.40

The court may combine a compensation order with any other form of order.

Compensation orders and fines Priority is given to the imposition of a compensation order over a fine.41 This does not affect sentences other than fines. This means that the fine should be reduced or, if necessary, dispensed with altogether, to enable the compensation to be paid.
Compensation orders and confiscation orders A compensation order can be combined with a confiscation order where the amount that may be realised is sufficient. If such an order is made, priority should be given to compensation.42
Compensation orders and community orders A compensation order can be combined with a community order.
Compensation orders and suspended sentence orders A compensation order can be combined with a suspended sentence order.43
Compensation orders and custody A compensation order can be combined with a sentence of immediate custody where the offender is clearly able to pay or has good prospects of employment on his release from custody.

 


Notes

[1] R v Lawrence (1989) 11 Cr App R (S) 580
[2] R v Poulton and Celaire [2002] EWCA Crim 2487; Attorney General’s Reference No 21&22 of 2003 [2003] EWCA Crim 3089
[3] Attorney General’s Reference Number 21 and 22 of 2003
[4] Attorney General’s Reference No1 of 1990 (1990) 12 Cr App R (S) 245
[5] R v Millen (1980) 2 Cr App R (S) 357
[6] R v Kastercum (1972) 56 Cr App R 298
[7] R v Poulton and Celaire [2002] EWCA Crim 2487; Attorney General’s Reference No 21&22 of 2003 [2003] EWCA Crim 3089
[8] R v Fletcher [2002] 2 CAR (S) 127
[9] R v Jamieson & Jamieson [2008] EWCA Crim 2761
[10] R v Raza [2010] 1 Cr App R (S) 56
[11] R v Ralphs [2009] EWCA Crim 2555 [12] R. v Ali [1998] 2 Cr.App.R. 123
[13] R. v Costello [2010] EWCA Crim 371
[14] s.116 of the PCC(S)A 2000 was repealed by s.332 of the Criminal Justice Act 2003 Act and Part 7 of Schedule 37. However, the effect of the saving in paragraph 29 of Schedule 2 to the Commencement No.8 and Transitional and Savings Provisions Order 2005 was that s.116 continued to apply where the earlier sentence was imposed for an offence committed before 4 April 2005, or was for a term of less than 12 months
[15] ibid
[16] bid. The Criminal Justice & Immigration Act 2008 contains a further transitional provision. Paragraph 4 of Schedule 26 inserts an exclusion into s116 which prevents prisoners released under s.33(1A) of the 1991 Act (i.e eligible discretionary conditional release prisoners, who are released automatically at ½ point of their sentence, rather than on a recommendation from the Parole Board) from being returned to prison under s116
[17] R. v Pinnell [2010] EWCA Crim 2848
[18] R v Cornelius [2002] EWCA Crim 138
[19] R v Rahuel Delucca [2010] EWCA Crim 710
[20] R. v O’Brien [2006] EWCA Crim 1741
[21] R v Hills [2008] EWCA Crim 1871; R v Ashes [2007] EWCA Crim 1848
[22] s.28(1B) Crime (Sentences) Act 1997
[23] s.28 ibid
[24] s.164(2) Criminal Justice Act 2003
[25] s.164(3) ibid
[26] R. v Pointon [2008] EWCA Crim 513
[27] s.148 (1) Criminal Justice Act 2003
[28] s.150A ibid (in force since 14 July 2008) restricts the power to make a community order by limiting it to cases where the offence is punishable with imprisonment.
[29] s.37(8) Mental Health Act 1983
[30] R. v McClelland [1951] 1 All ER 557
[31] s.163 Criminal Justice Act 2003
[32] ibid
[33] ibid
[34] s.148(1) ibid
[35] Paragraphs 21-23 of Schedule 8 ibid
[36] s.34(1) Road Traffic Offender Act 1998
[37] s.35(3) ibid
[38] ibid
[39] R. v Warton [1976] Crim LR 520
[40] R. v Miller [1976] Crim LR 694
[41] s.130(12) Powers of Criminal Courts (Sentencing) Act 2000
[42] R v Mitchell [2001] Cr, L. R239
[43] s.118(5) Powers of Criminal Courts (Sentencing) Act 2000