In sentencing a defendant following a retrial, a judge should consider, among other things, what the appropriate total sentence was for the offence(s) of which the defendant had been convicted at his retrial. The Court of Appeal, Criminal Division (the court), held that it was not just a question of simple arithmetic and that the entirety of the circumstances at the two sentencing hearings, and any differences between them, had to be borne in mind. Accordingly, on the facts, the court dismissed the defendant’s appeal against an overall sentence of seven years and nine months’ imprisonment, imposed after a retrial in 2020, for sexual offences (with the exception of count 3) committed against his sister (BM). The court rejected the contention that that sentence was unlawful, since it was of greater severity than the seven-year sentence passed at the original trial for the same offending, with the addition of count 3. Following the first trial, the defendant had also been sentenced for sexual offences committed against his former wife (CB). The court noted that, in contrast to the sentencing following the first trial, there had been no need (following the retrial) to reduce the sentence of seven years and nine months’ imprisonment for totality reasons, because the prosecution had not pursued the counts regarding CB.
 All ER (D) 49 (May)
*R v AB
 EWCA Crim 692
Court of Appeal, Criminal Division
Fulford, Holroyde and Edis LJJ
14 May 2021
Sentence – Retrial – Appeal against sentence
In April 2015, the defendant’s (AB’s) former wife (CB) made allegations to the police that he had sexually abused her and that he had raped his biological sister, BM. In 2017, AB was convicted of various historic sexual offences against BM (when she was between 10 and 17 years of age and AB was between 15 and 22 years of age), and against CB.
AB was sentenced (by Judge Kamill) for the offences regarding BM as followed: (i) count 1 (sexual intercourse with BM when under 13 years of age, contrary to s 5 of the Sexual Offences Act 1956 (SOA 1956)): 4½ years’ imprisonment; (ii) count 2 (indecent assault on a girl under 13, contrary to SOA 1956 s 14(1)): 2 years’ imprisonment, concurrent; (iii) count 3 (indecent assault on BM when under 13, contrary to SOA 1956 s 14(1)): 2 years’ imprisonment, concurrent; (iv) count 4 (rape of BM, contrary to SOA 1956 s 1(1)): 4½ years’ imprisonment, concurrent; (v) count 5 (indecent assault on BM, contrary to SOA 1956 s 14(1) on at least 5 other occasions other than in counts 2 and 3): 3 years, concurrent; (vi) count 6 (rape of BM, contrary to SOA 1956 s 1(1)): 7 years’ imprisonment, concurrent. The overall sentence imposed for the offences relating to BM was 7 years’ imprisonment.
The overall sentence on the offences relating to CB was 7 years’ imprisonment, to run consecutively to the 7 years’ imprisonment imposed for the offences relating to BM. The total sentence in 2017, for the offending against BM and CB was 14 years’ imprisonment.
In May 2019, AB’s appeal against all of the convictions was allowed, the convictions were quashed and a retrial was ordered. Thereafter, the prosecution offered no evidence in relation to the offences concerning CB.
In November 2020, AB was convicted of the same offences as regards BM, save that the jury failed to return a verdict on count 3 (a charge of indecent assault), which was ordered to lie on the file, subject to the usual terms.
AB was sentenced (by Judge Hammerton) as followed: (i) for count 1 (sexual intercourse with a girl under 13 years), 4½ years’ imprisonment; (ii) count 2 (indecent assault when BM was aged 10), 2 years’ imprisonment concurrent; (iii) count 4 (multiple incidents of rape), 4½ years’ imprisonment concurrent; (iv) count 5 (multiple incidents of indecent assault) 3 years’ imprisonment, to run concurrently; and (v) count 6 (a single offence of rape when BM was aged 17) 3 years and 3 months’ imprisonment, to run consecutively.
The total sentence imposed in 2020 on the offences relating to BM was seven years and nine months’ imprisonment.
AB’s application for leave to appeal against sentence was referred to the full court by the Registrar of Criminal Appeals.
Whether the sentence of seven years and nine months’ imprisonment for the offences against BM (absent count 3) was unlawful, since it was of greater severity than the seven-year sentence passed at the original trial for the same offending with the addition of count 3.
AB submitted that the judge had acted in contravention of para 2(1) of Sch 2 to the Criminal Appeal Act 1968 (CAA 1968), which provided that: ‘(1) Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorised by law, not being a sentence of greater severity than that passed on the original conviction.’
On the basis of the authorities, following a retrial, the judge should apply the following approach: (i) He or she should consider what was the appropriate total sentence for the offence(s) of which the defendant had been convicted at his retrial. That provisional sentence was to be determined in the usual way, following any relevant guideline, and without regard to the original sentence. (ii) The total provisional sentence and the corresponding total sentence for the same offence(s) at the first trial should be compared. (iii) If the defendant pleaded guilty at one of his trials, but not at the other, it would be necessary, when making the relevant comparison, to take into account any reduction made for the guilty plea. (iv) It would be necessary to consider the effect of the application of the principle of totality by the judge who imposed the original sentence. For that purpose, the judge at retrial should, wherever possible, have regard to the sentencing remarks of the judge who imposed the original sentence. (v) If the provisional sentence was of a different kind from that imposed at the original trial, or attracted different release provisions, a careful assessment would be needed before deciding whether the provisional sentence was more severe than the original sentence for the corresponding offences. The judge had to consider the overall impact of the provisional sentence, which had to involve considering any entitlement to automatic release, parole eligibility and licence. (vi) The judge should assess the punitive effect of non-custodial orders (such as disqualification from driving or sexual offences prevention orders) which were not imposed after the original trial, but which it was necessary or appropriate to impose after the retrial. (vii) If the result of that comparison was that the provisional total sentence was more severe than the corresponding original total sentence, it had to be reduced accordingly (see -,  of the judgment).
It followed that the judge should consider, with care, the circumstances of what had occurred on the two occasions when the accused had been convicted. In that context, the words of the schedule did not preclude a ‘longer’ sentence – they, instead, prohibited a ‘sentence of greater severity’. If, for instance, on a conviction following a retrial the defendant did not have the benefit of an earlier guilty plea, the court was entitled to pass a longer sentence than at the conclusion of the first trial, taking into account the lack of credit for a guilty plea (see  of the judgment).
Applying those principles to the circumstances of the present case, the court had had regard to two principal factors. First, the totality of the matters in respect of which the defendant had been originally sentenced were to be contrasted with the more limited indictment when he had come to be resentenced. It was necessary to reflect the fact (as had the judge) that the original sentence of 14 years’ imprisonment was the result of offending against CB and BM, rather than BM alone. The totality of the matters in respect of which the defendant had been dealt with when originally sentenced and when resentenced were, therefore, markedly different and it would have been overly simplistic and wrong to suggest that a sentence of 7 years 9 months’ imprisonment was ‘less severe’ in those circumstances than a sentence of 14 years’ imprisonment for the purposes of CAA 1968 Sch 2 Para 2 (see  of the judgment).
Second, as Judge Hammerton had observed, he had been ’satisfied that when Judge Kamill had passed sentence she had had regard to the principle of totality and that she had, therefore, reduced the aggregate sentences for the (BM) and (CB) offences by an appropriate amount to reflect that principle (see  of the judgment)
With those two factors in mind, when considering the detailed circumstances of the two sentencing hearings, the critical change was that, on the first occasion, the sentence, which otherwise would have been imposed for the offences concerning BM, had been ameliorated to ensure that the overall sentence had been proportionate, since those sentences were imposed as part of the same exercise for the offences concerning CB. In contrast, the sentence of seven years and nine months’ imprisonment had not needed to be reduced for totality reasons because the prosecution had not pursued the counts regarding CB. That had undoubtedly been a ‘longer’ sentence, but it had not been a sentence of ‘greater severity’ than that passed on the original conviction, because a sentence, at least, of that length would, undoubtedly, have been imposed at the first sentencing hearing, had it not been for considerations of totality. The later sentence had not, therefore, been of greater severity because it had not required adjustment to ensure the overall sentence imposed for the two victims had been proportionate. It followed that it was not just a question of simple arithmetic; instead, the entirety of the circumstances at the two sentencing hearings and any differences between them had to be borne in mind. Additionally, it was noted that the lack of a conviction on count 3 was of no material significance, given it had resulted in a short concurrent sentence of two years’ imprisonment (see  of the judgment).
It was important to observe, given the approach set out at , that the court was unpersuaded by the somewhat adventurous submission that all prison sentences were of equal severity in the present context, wholly regardless of length. None of the authorities supported that proposition (see  of the judgment).
The principal ground of appeal merited consideration by the present court. Leave would be granted and the appeal would be dismissed (see  of the judgment).
R v Scanes  EWCA Crim 2309 applied; R v Robson  EWCA Crim 1472 applied; R v Dobson  EWCA Crim 1416 applied; R v Bett  EWCA Crim 1909 applied; R v Thompson and other appeals  EWCA Crim 639 applied; R v KPR  EWCA Crim 2537 applied.
Trevor Siddle (assigned by the Registrar of Criminal Appeals) for the defendant.
A Collings (instructed by CPS Criminal Appeals Unit) for the Crown.
Carla Dougan-Bacchus Barrister.