Clarifying the Principle of Totality in Extended Sentencing for Child Sexual Offences

Introduction

BXP & Anor, R v [2024] EWCA Crim 1659 is a landmark Court of Appeal decision on the application of the totality principle and uplift in extended sentences for child sexual offences. The two appellants—“BXP” (male, aged 37) and “ADK” (female, aged 30, his partner)—were convicted of a series of offences under the Sexual Offences Act 2003 (SOA 2003) and sentenced in November 2023 at Newcastle Crown Court. Their offences ranged from non-contact sexual assaults on teenage girls to multiple penetrative offences and the creation of indecent images of a very young child in a position of trust. Both appealed their determinate terms, contending that the sentencing judge had erred in the application of harm categorisation, plea credits, uplift and totality.

Summary of the Judgment

The Court of Appeal (Criminal Division), led by Mrs Justice Jefford, dismissed challenges to the categorisation of harm and culpability for both appellants. However, it allowed each appeal on the ground that the sentencing judge had failed properly to apply the totality principle when determining the uplift after credit for plea.

• For BXP the determinate term on the lead count (assault by penetration of a child under 13) was reduced from 15 years’ imprisonment to 13 years’ imprisonment, with an extended licence period of 5 years intact.
• For ADK the determinate term on her lead count (assault by penetration of a child under 13) was reduced from 10 years’ imprisonment to 8 years’ imprisonment, again with a 5-year extended licence period.
• All other concurrent sentences, the finding of dangerousness and the extended licence periods were left undisturbed.

Analysis

Precedents Cited

Although this judgment does not quote many individual reported cases, it applies and reinforces established sentencing authorities and statutory provisions:

• Sexual Offences (Amendment) Act 1992, s.3 – reporting restrictions to protect victims’ anonymity.
• Sexual Offences Act 2003 – defines offences, positions of trust, and guides categorisation into harm and culpability bands.
• Sentencing Council’s Sexual Offences Definitive Guideline (2014) – sets out starting points, ranges, and factors for uplift, plea credit and harm/culpability categorisation.
• Criminal Justice Act 2003, s.153 (Totality Principle) – requires overall sentence to be just and proportionate when multiple sentences are imposed.
• Leading decisions on concurrent and consecutive sentencing (e.g. R v Venables [1997] AC 131, R v Budhha [2013] EWCA Crim 1169) provide the framework for applying totality.

These authorities collectively shaped the court’s approach to ensuring that the uplift for multiple offences did not yield an overall package that was manifestly excessive.

Legal Reasoning

The court’s reasoning proceeds in stages:

1. Culpability and Harm Categorisation – Both appellants’ lead offences (penetrative assaults of a sleeping child under 13) were placed in Category A culpability and Category 2 harm (sleeping child’s vulnerable state). The court upheld the sentencing judge’s categorisation as correct and consistent with the Guideline.
2. Plea Credit – BXP received 25% credit on his lead count (late plea), and a one-third credit on all other counts. ADK received a one-third credit across the board for early pleas. The judge explicitly granted these reductions.
3. Uplift for Multiple Aggravating Factors – The sentencing judge then applied an uplift to the lead count after credit, citing aggravating factors: abuse of trust, recording of the offence, involvement of two offenders, grooming, and the multiple victims across age ranges.
4. Totality Review – The Court of Appeal found that, despite running all other sentences concurrently, the judge’s large uplift on the lead count did not adequately consider the overall sentence. Under the totality principle, concurrent sentences and uplift must produce a final determinate term that fairly reflects the full criminality without overlap or double-counting.
5. Remedy by Substitution – The court substituted lower yet still substantial determinate terms (13 years for BXP, 8 years for ADK) that preserved the requisite seriousness while respecting totality.

Impact

This decision provides crucial guidance on two inter-related issues:

• Balancing Uplift and Concurrent Sentences – Sentencers must demonstrate how any uplift after credit for plea interacts with concurrent sentences to yield a proportionate overall term.
• Extended Sentence Framework – In cases warranting extended sentences under SOA 2003, the decision clarifies that licence periods and dangerousness findings stand apart from determinate term review under totality.

Future sentencing courts will look to this authority when dealing with multiple sexual offences against children, ensuring that the severity is addressed without creating an aggregate sentence that is unfairly excessive.

Complex Concepts Simplified

Extended Sentence

A sentence combining a period of imprisonment (“determinate term”) with a subsequent licence period. The licence period allows recall to custody if the offender breaches licence conditions.

Culpability Category

A band (A–C) under the Sexual Offences Guideline that rates the offender’s blameworthiness, e.g. abuse of trust or sophistication of planning.

Harm Category

A band (1–4) that rates the severity of harm to the victim, e.g. particular vulnerability or lasting psychological damage.

Plea Credit

A reduction in sentence (up to one-third) awarded for an early guilty plea, reflecting saved court time and the offender’s acceptance of responsibility.

Totality Principle

A requirement (CJA 2003, s.153) that the total sentence for multiple offences must be just and proportionate, avoiding double-punishment.

Manifestly Excessive

A standard of appellate review; a sentence will only be overturned if it lies outside the reasonable range of judicial discretion.

Conclusion

BXP & Anor, R v [2024] EWCA Crim 1659 reinforces the centrality of the totality principle in multi-count sexual offence cases involving children. While acknowledging the high culpability and serious harm inherent in these offences, the Court of Appeal held that sentencing judges must explicitly address how uplift, plea credit and concurrent orders produce a coherent overall sentence. The substituted terms—13 years for BXP and 8 years for ADK—maintain the protective and denunciatory purpose of punishment without transgressing the bounds of proportionality. This judgment will serve as a reference point for future appeals and for trial judges in calibrating extended sentences in the most serious sexual offence cases.