Totality

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 the effective date of this guideline, regardless of the date of the offence.

Section 59(1) of the Sentencing Code provides that:

“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.

• a single incident of dangerous driving resulting in injuries to multiple victims
• robbery with a weapon where the weapon has been taken into account in categorising the robbery
• fraud and associated forgery or possessing or making an article used in fraud
• separate counts of supplying different types of drugs of the same class as part of the same transaction

• repetitive small thefts from an employer
• repetitive benefit frauds of the same kind, committed in each payment period

Examples of concurrent custodial sentences 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 offence to run concurrently to avoid the appearance of under-sentencing in respect of the robbery

• 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
• where one of the offences is a Bail Act offence
• offences committed within a prison context should be ordered to run consecutively to any sentence currently being served

• an assault on a constable committed to try to evade arrest for another offence also charged
• where the offender is convicted of drug dealing and possession of a firearm offence. The firearm offence is not the essence or an intrinsic part of the drugs offence and requires separate recognition
• where the offender 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

• 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

• other offences sentenced alongside possession of a prohibited weapon (which attracts a five year minimum term) – any reduction on grounds of totality should not reduce the effect of properly deterrent and commensurate sentences. The court should not reduce an otherwise appropriate consecutive sentence for another offence so as to remove the impact of the mandatory minimum sentence for the firearms offence.

• more than one offence of causing serious injury in a single incident of dangerous driving
• possession of several prohibited weapons and/or ammunition acquired at the same time

The court should first reach the appropriate sentence for the instant offences, taking into account totality in respect of the instant offences alone. The court then has a discretion whether to make further allowance to take into account the earlier sentence (whether or not that sentence has been served in full). The court should consider all the circumstances in deciding what, if any, impact the earlier sentence should have on the new sentence. It is not simply a matter of considering the overall sentence as though the previous court had been able to sentence all the offences and then deducting the earlier sentence from that figure.

A non-exhaustive list of circumstances could include:

1. how recently the earlier sentence had been imposed, taking account of the reason for the gap and the offender’s conduct in the interim
2. the similarity of the offences sentenced earlier to the instant offences
3. whether the offences sentenced earlier and instant offences overlapped in time
4. whether on a previous occasion the offender could have 'cleaned the slate' by bringing the instant offences to the police's attention
5. whether taking the earlier sentences into account would give the offender an undeserved bonus - this will particularly be the case where a technical rule of sentencing has been avoided or where, for example, the court has been denied the opportunity to consider totality in terms of dangerousness
6. whether the instant offence qualifies for a mandatory minimum sentence
7. the offender's age and health, and whether their health had significantly deteriorated
8. whether, if the earlier and instant sentences had been passed together as consecutive sentences, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence.

If the offender is still subject to the previous sentence:

1. Where the offender is currently serving a custodial sentence for the offences sentenced earlier, consider whether the new sentence should be concurrent with or consecutive to that sentence taking into account the circumstances set out above and the general principles in this guideline.
2. Where the offender is serving an indeterminate sentence for the offences sentenced earlier, see also the guidance in the section ‘Indeterminate sentences’ below.
3. Where the offender has been released on licence or post sentence supervision from a custodial sentence for the offences sentenced earlier, a custodial sentence for the instant offences cannot run consecutively to that earlier sentence, including where the offender has been recalled to custody – see the relevant guidance in the section below ‘Existing determinate sentence, where determinate sentence to be passed’.