Overarching Sentencing Guideline

Stages of Sentencing

2.5 Stage Seven: Totality

General principles

The principle of totality comprises two elements:

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.

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.

The general approach (as applied to determinate custodial sentences) is as follows:

Consider the sentence for each individual offence, referring to the relevant sentencing guidelines.
Determine whether the case calls for concurrent or consecutive sentences.
Test the overall sentence(s) against the requirement that they be just and proportionate.
Consider whether the sentence is structured in a way that will be best understood by all concerned with it.

Concurrent sentences will ordinarily be appropriate where:

Offences arise out of the same incident or facts. Examples include:

robbery with a weapon where the weapon offence is ancillary to the robbery and is not distinct and independent of it;

fraud and associated forgery;

separate counts of supplying different types of drugs of the same class as part of the same transaction.

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:

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 offence to run concurrently to avoid the appearance of under-sentencing in respect of the robbery.

Consecutive sentences will ordinarily be appropriate where:

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;

a bail offence;

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;

- 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;

- 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.

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 are committed against different people, such as repeated thefts involving attacks on several different shop assistants;

where offences of domestic abuse or sexual offences are committed against the same individual.

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

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.

Examples

Sentencers should refer to Annex Two for some examples of common sets of circumstances and guidance on how sentencers can apply the principles of totality in standard scenarios.

Annex Two: Examples Relating to Totality

The tables below set out some common sets of circumstances and provide guidance on the approach to be adopted when applying the principles of totality.