Ensuring Totality in Rape Sentencing: R v Smith [2025] EWCA Crim 1610 and Uplifts for Multiple Sexual Offences

Ensuring Totality in Rape Sentencing: R v Smith [2025] EWCA Crim 1610 and Uplifts for Multiple Sexual Offences

1. Introduction

The decision in Smith, R. v [2025] EWCA Crim 1610 is a significant Court of Appeal (Criminal Division) authority on how sentencing judges must apply the Sentencing Council’s rape guideline where a single incident comprises multiple sexual offences, and how the totality principle should be reflected by an uplift to the lead offence.

The case came before the Court as an Attorney General’s Reference under the unduly lenient sentence jurisdiction. Mr Smith, a 25‑year‑old repeat offender with previous knife-point robbery convictions, was convicted after trial of:

  • Two counts of rape (s.1 Sexual Offences Act 2003);
  • One count of assault by penetration (s.2); and
  • Two counts of sexual assault (s.3).

The sentencing judge imposed an extended sentence of 15 years 6 months: a custodial term of 12 years 6 months on the lead rape count plus a 3‑year extended licence, with concurrent terms on the remaining counts. The Attorney General contended that the sentence was unduly lenient.

The Court of Appeal, presided over by Lord Justice Dingemans (Senior President of Tribunals), upheld the categorisation of harm and culpability adopted at first instance but held that the uplift to reflect the additional sexual offences was plainly insufficient. The Court increased the custodial term on the lead rape count to 17 years (with the 3‑year extension unchanged), producing a 20‑year extended sentence.

The core importance of the judgment lies in its clear articulation of:

  • How harm categorisation should operate where elements of “sustained incident” and “additional degradation” are themselves separately charged offences; and
  • How the totality principle requires a substantial and reasoned uplift to the lead sentence in such circumstances, rather than merely nominal adjustment.

2. Factual and Procedural Background

2.1 The Offending

In the early morning of 5 July 2024, the 23‑year‑old victim left her home to walk to a nearby bus stop ([4]). Mr Smith, aged 24, grabbed her by the shoulders near a bridge, threatening: “Don’t make any noises or I’ll stab you” ([4]). He dragged her down a path into bushes by the bridge – an abduction into a secluded area ([5], [21]–[22]).

Across a continuous sequence of conduct, Mr Smith:

  • Sexually assaulted the victim by touching and sucking her breast (count 5, 3 years concurrent) ([5]);
  • Assaulted her by penetration with his fingers (count 3, 10 years concurrent) ([5]);
  • Repeated digital penetration and licked her vagina (count 4, 3 years 6 months concurrent) ([6]);
  • Raped her vaginally with his penis (count 1, lead count) ([6]); and
  • Forced her to kneel and orally raped her (count 2, 11 years concurrent) ([6]).

Throughout, he threatened violence (“I’ll stab you”) and, at the end, threatened to kill her mother if she spoke out: “Say anything and your mum’s dead” ([7]). He claimed to have been watching her for six months, indicating prior surveillance and planning. He kissed her with his tongue inside her mouth – a detail which the Attorney General later relied on as contributing to “additional degradation or humiliation” ([7], [18], [22]).

The victim immediately disclosed the rapes to her father. DNA evidence (sperm and saliva) robustly linked Mr Smith to the attack, and CCTV placed him nearby before and after the incident ([8]). When police attended his home two days later, he attempted to flee into the garden but was arrested, saying: “I’m really sorry, I was going to hand myself in” ([9]). He then gave a “no comment” interview and refused to unlock his phone ([9]).

2.2 Procedural History and Trial

Mr Smith was first brought before the magistrates’ court on 11 July 2024, sent to the Crown Court, and ultimately tried in January 2025 ([10]). He pleaded not guilty and advanced a defence of reasonable belief in consent but did not give evidence at trial ([10]). The jury convicted him on all counts on 8 January 2025 ([3]).

2.3 First‑Instance Sentencing

On 30 April 2025 the sentencing judge imposed:

  • On count 1 (vaginal rape): 12 years 6 months’ custody after trial, with a 3‑year extended licence (making a total extended sentence of 15 years 6 months) ([3], [6], [16]);
  • On count 2 (oral rape): 11 years’ imprisonment, concurrent ([6]);
  • On count 3 (assault by penetration): 10 years’ imprisonment, concurrent ([5]);
  • On count 4 (sexual assault by licking the vagina): 3 years 6 months concurrent ([6]);
  • On count 5 (sexual assault to the breast): 3 years concurrent ([5]).

The judge found Mr Smith “dangerous” under the statutory regime for extended sentences; that finding was not challenged on the Reference ([16]).

The sentencing exercise was conducted by reference to:

  • the Rape offence-specific guideline;
  • the Totality Overarching Guideline; and
  • the guideline on Sentencing Offenders with Mental Disorders ([14], [24]).

The judge:

  • Placed the rapes in harm category 2A – high culpability with category 2 harm ([14]);
  • Found culpability A due to a “significant degree of planning” ([20]);
  • Identified category 2 harm through threats of violence beyond the inherent violence of rape and psychological harm, but not sufficiently “extreme” to move to category 1 ([14]);
  • Placed the assault by penetration in category 2A and the sexual assaults in category 1A ([14]).

Mitigating factors included Mr Smith’s youth (25), lack of maturity, ADHD and mental health difficulties, bereavements, and instability in work and relationships ([15]). He had, however, two prior robbery convictions (knife‑point robberies, one against a woman with a child in her car) and was on licence at the time ([2]).

The judge started at 10 years for the lead rape, reflecting category 2A, and then adjusted for aggravation and mitigation, reaching 12 years 6 months’ custody ([14], [16]). The extended licence period was fixed at 3 years ([3], [16]).

2.4 The Attorney General’s Reference

The Attorney General applied to refer the sentence as unduly lenient. Ms Robertson, for the Attorney General, submitted that ([18]):

  • The lead rape should have been placed in harm category 1, not category 2; alternatively, it should have been sentenced at the top of the category 2A range;
  • Additional category 2 harm factors of “sustained incident” and “additional degradation/humiliation” were present;
  • Insufficient regard was paid to aggravating factors, including prior convictions and offending on licence; and
  • The overall sentence failed properly to reflect the full course of criminality.

For Mr Smith, Mr Bernstein argued that ([19]):

  • The trial judge, having presided over the case, was best placed to assess the harm category and seriousness;
  • There was no “extreme nature” of category 2 factors to justify category 1 harm;
  • The judge did take multiple harm factors into account and did reflect aggravating and mitigating factors;
  • At most, the sentence might be considered “lenient” but not “unduly lenient”.

3. Summary of the Judgment

The Court of Appeal:

  1. Upheld the categorisation of the lead rape as culpability A, harm category 2 – that is, category 2A – rather than recategorising it as category 1 ([20]–[23]).
  2. Accepted that several category 2 harm factors were present: threats beyond the inherent violence of rape, abduction, and (if considered globally) a sustained incident with additional degradation/humiliation ([21]–[22]).
  3. Endorsed the judge’s decision not to treat the sustained incident and additional degradation as separate harm factors for the lead rape, because those features corresponded to conduct charged as separate counts and must not be double counted ([22]–[23]).
  4. Criticised the sentencing judge, however, for failing to provide a sufficient uplift to the lead sentence on count 1 to reflect the entirety of the offending – in particular, the second rape, the assault by penetration, and the two sexual assaults ([25]–[26]).
  5. Held that, applying the Totality guideline, it was correct to treat count 1 as the lead offence and make all other sentences concurrent, but the uplift for totality was plainly too low ([26]).
  6. Determined that “the least sentence that could have been imposed after a trial for a determinate lead sentence to reflect the separate offences was a sentence of 17 years” ([27]).
  7. Increased the custodial term on count 1 from 12½ years to 17 years, leaving the extended licence period at 3 years, thereby producing a total extended sentence of 20 years ([27]–[28]).

Thus, while the Court did not interfere with the harm categorisation or the concurrency structure, it substantially increased the custodial component to ensure the sentence properly reflected the totality of the offending.

4. Legal Framework

4.1 Attorney General’s Reference and Unduly Lenient Sentences

Although not spelled out in the judgment, this case proceeds under the Attorney General’s statutory power (commonly under s.36 of the Criminal Justice Act 1988) to refer sentences that appear unduly lenient for specified serious offences. The Court may:

  • grant leave;
  • find the sentence unduly lenient if it falls outside the range of sentences reasonably open to the judge; and
  • substitute such sentence as it considers appropriate, subject to the statutory maximum and to overall fairness.

In practice, the Court will not interfere merely because it might itself have passed a higher sentence; the test is whether the original sentence was unduly lenient in light of the applicable guidelines and established sentencing principles.

4.2 The Rape Guideline: Harm and Culpability

The sentencing judge and the Court of Appeal both proceeded by reference to the Sentencing Council’s offence-specific guideline for rape. The guideline operates on two axes:

  • Harm: category 1, 2 or 3, determined by the impact of the offence and aggravating features of the harm; and
  • Culpability: A, B or C, reflecting features such as planning, use of weapons, role, vulnerability of victim, etc.

Key features relevant here include:

  • Category 2 harm may be indicated by factors such as:
    • threats of violence beyond the inherent violence of rape;
    • abduction;
    • prolonged detention/sustained incident; and
    • additional degradation or humiliation.
  • Category 1 harm usually requires either:
    • the “extreme nature” of one or more category 2 harm factors; or
    • an extremely serious overall impact, for example severe psychological harm or particularly grave combination of category 2 factors.
  • Culpability A includes a “significant degree of planning” – which the judge found was present because Mr Smith said he had been watching the victim for six months and had chosen an isolated location to attack her ([14], [20]).

For rape, category 2A produces a guideline starting point of 10 years’ custody, with a range (in the current guideline) around that figure. Aggravating and mitigating factors can move the sentence up or down within or even beyond the range.

4.3 The Totality Overarching Guideline

The Totality guideline addresses how courts should structure sentences where there are multiple offences. Its key principles include:

  • Step 1: Determine the appropriate sentence for each offence, applying the relevant guideline.
  • Step 2: Consider whether sentences should be concurrent (for offences arising out of the same incident or transaction) or consecutive (where they are distinct incidents).
  • Step 3: Ensure that the overall sentence is just and proportionate to the totality of offending. This may involve:
    • selecting a lead offence;
    • imposing concurrent sentences on others; and
    • uplifting the sentence on the lead offence to reflect the additional criminality.

The Court in Smith affirmed that it was “plainly inappropriate to add on each of the other terms for the offending” ([26]) – consecutive sentences would risk over-punishing the same incident – but emphasised that the uplift to the lead offence must still be substantial and transparent where there are multiple serious sexual offences in one continuous episode.

4.4 Sentencing Offenders with Mental Disorders

The guideline on Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments requires courts to consider whether:

  • an offender’s condition contributed to the commission of the offence (which can affect culpability); and
  • the condition affects the offender’s ability to cope with imprisonment or risk in the community.

In Smith, the liaison diversion report noted ADHD, emotional dysregulation, and impulsivity, but no severe mental illness or capacity issues ([13]). The judge concluded ADHD was “not directly linked to the commission of the offence” but nonetheless took it and Mr Smith’s immaturity into account as modest mitigation ([15], [24]). The Court of Appeal endorsed that approach ([24]).

4.5 Dangerousness and Extended Sentences

Where an offender convicted of a specified sexual offence presents a “significant risk” of serious harm to the public, the court may impose an extended sentence, adding an extended licence period to the custodial term to manage ongoing risk. In Smith:

  • The judge found Mr Smith dangerous and imposed a 3‑year extended licence ([16]);
  • The Court of Appeal accepted that finding without criticism; and
  • It left the extended licence period unchanged at 3 years, focusing instead on the adequacy of the custodial term ([27]–[28]).

5. Analysis of the Court’s Reasoning

5.1 Harm Categorisation: Category 2 vs Category 1

A central dispute concerned whether the lead rape (count 1) should have been placed in harm category 1, as the Attorney General argued, or harm category 2, as the sentencing judge held and the defence supported.

The Court accepted:

  • Culpability A was plainly correct – there was a “significant degree of planning” based on Mr Smith’s admission that he had been watching the victim and knew her routine, and his choice of a secluded location ([14], [20]);
  • A category 2 harm factor was present in the form of threats of violence beyond what is inherent in the offence ([21]);
  • There was abduction, because the victim was forced down an isolated path into bushes ([21]);
  • Looked at globally, the course of conduct could properly be described as a “sustained incident” with “additional degradation/humiliation” ([22]).

However, the Court drew an important boundary: where those further features correspond to conduct that is charged and sentenced as separate offences (here, the additional rape count, the assault by penetration, and the two sexual assaults), they should not be double counted as additional harm factors in the categorisation of the lead rape ([22]–[23]).

Accordingly, the Court held that the judge was “entitled to find that this remained category 2 harm” on the findings she had made ([23]). The Attorney General’s argument for harm category 1 was rejected.

This underscores a nuanced point: the existence of multiple category 2 factors does not automatically propel an offence to category 1. Category 1 requires “extreme” characteristics or impact. Where overlapping features are already embodied in separate counts, the Court is reluctant to elevate harm categorisation on the lead count by recasting them as harm factors again.

5.2 Multiple Sexual Offences in a Single Incident: Avoiding Double Counting but Ensuring Totality

The Court’s most important contribution lies in clarifying how courts should treat multiple serious sexual offences arising from one episode.

On the one hand:

  • The judge rightly avoided counting the entirety of the sequence – the multiple penetrative acts and assaults – as harm factors (such as “sustained incident” and “additional degradation”) on the lead rape, because those acts were themselves separately charged and sentenced ([22]–[23]).

On the other hand:

  • The judge then failed to provide a sufficiently robust uplift to the custodial term on count 1 to reflect the presence of those other very serious offences, as the Totality guideline requires ([25]–[27]).

The Court emphasised that:

  • The lead offence must be sentenced with a clear and discernible uplift reflecting the fact that there was:
    • a second rape;
    • an assault by penetration; and
    • two serious sexual assaults;
  • Those additional offences transformed the overall incident into a sustained, degrading attack, and the lead sentence must capture that gravity ([27]);
  • Merely mentioning the existence of other counts without evidently increasing the sentence to account for them is insufficient.

The Court observed that it was:

“not possible from reading the sentencing remarks to work out what additional uplift the judge had given to reflect the separate rape, the separate assault by penetration and the two sexual assaults…” ([25]).

The “structure” of the sentencing remarks suggested that, after weighing aggravation and mitigation on the lead count, any uplift for the additional offending had been only “very minor” ([26]). That was the critical error.

Thus, the new emphasis from this case is that:

  • When multiple serious sexual offences occur in one incident and are sentenced concurrently, the uplift to the lead offence must be both substantial and explicable so that the sentence clearly reflects the totality of criminality; and
  • Appellate courts will scrutinise sentencing remarks for evidence of this uplift, and will intervene where it is lacking or inadequately reasoned.

5.3 Aggravating and Mitigating Factors

The Court was broadly content with the judge’s identification of aggravating and mitigating factors ([24]).

Aggravating factors included:

  • Threats of serious violence (“I’ll stab you”; “your mum’s dead”) ([4], [7]);
  • Abduction to an isolated location ([5], [21]);
  • Presence of multiple sexual offences including two rapes and an assault by penetration ([5]–[6]);
  • Previous convictions for serious knife-point robberies, one involving a mother and child ([2]);
  • Commission of the offences while on licence for those robberies ([2], [14]);
  • Steps taken to prevent reporting (threats to kill the victim’s mother) ([14]);
  • Lack of remorse and continued denial of responsibility, as recorded in the pre-sentence report ([13]).

Mitigating factors were more constrained:

  • Mr Smith’s age (25) and lack of maturity ([15], [24]);
  • His ADHD diagnosis and broader mental health struggles, although not causally linked to the offending ([13], [15], [24]);
  • Some positive aspects of his character and behaviour reported in references and in custody (e.g. supporting staff during an incident, enhanced prisoner status) ([12], [17]);
  • Recent bereavements, relationship breakdown and associated instability ([15]).

The Court stressed that the judge was entitled under the Mental Disorders guideline to treat mental health issues as modest mitigation even without a direct causal link, and to give some weight to immaturity, particularly having seen the offender during trial ([24]).

The appellate intervention therefore did not concern the balance of aggravation and mitigation as such, but specifically the failure adequately to translate the additional criminality into an enhanced lead sentence.

5.4 The Totality Principle and the Required Uplift

The Court accepted that:

  • It was right to treat count 1 as the lead offence and make all other sentences concurrent ([26]); and
  • It would have been “plainly inappropriate” simply to stack the sentences consecutively, given the single incident of offending ([26]).

However, applying the Totality guideline, the Court concluded that:

  • After a 10‑year starting point for a category 2A rape, the serious nature of the additional offences meant that the least17‑year custodial term on the lead count ([27]);
  • This represented an increase of about 4½ years over the 12½‑year custodial term imposed at first instance ([27]);
  • The extended licence period of 3 years was appropriate and remained unchanged ([27]).

This quantitative adjustment is itself instructive: the Court signals that where a single incident includes:

  • two separate rapes;
  • an assault by penetration; and
  • two further sexual assaults,

the uplift required to reflect totality may be measured not in months but in years, particularly when the offender is dangerous, has a relevant and serious criminal history, and has offended on licence.

5.5 Dangerousness and the Extended Sentence

The finding of dangerousness was “not an issue on this Reference” ([16]), and the Court did not disturb the 3‑year extended licence.

Implicitly, the Court accepted that:

  • The combination of previous violent offending, the predatory and planned nature of the sexual attack, continued denial, and a high assessed risk of “seriously harmful further offending” ([13]) justified the extended sentence;
  • The risk management rationale for the extended licence was properly served by the existing 3‑year period, and the appellate exercise should focus on the punitive and deterrent adequacy of the custodial element.

6. Precedents and Guideline Authorities Engaged

The judgment does not cite earlier cases by name, but it operates squarely within a framework established by prior authority and the Sentencing Council’s guidelines.

6.1 Unduly Lenient Sentence Jurisprudence

Appellate authority has long emphasised that in Attorney General’s References the Court:

  • Respects the sentencing judge’s primary discretion and proximity to the case;
  • Intervenes only if the sentence falls outside the range reasonably open to a judge applying the proper principles; and
  • Will not substitute its own view merely because it might have imposed a different sentence.

Smith reflects this approach: the Court carefully preserves:

  • The trial judge’s harm and culpability categorisation;
  • Her decision to keep the extended licence at 3 years; and
  • Her identification of aggravating and mitigating factors.

The intervention is narrowly targeted at the degree and explanation of uplift applied to the lead count, demonstrating deference to fact‑sensitive decisions but insisting on conformity with the Totality guideline.

6.2 Sentencing Council Guidelines as a Framework

The judgment explicitly refers to:

  • the Rape offence-specific guideline ([14]);
  • the Totality Overarching Guideline ([14], [25]–[27]); and
  • the guideline on Sentencing Offenders with Mental Disorders ([14], [24]).

It reinforces well-established propositions that:

  • Guidelines are to be followed unless it would be contrary to the interests of justice;
  • Harm and culpability categorisation is a structured exercise, not an impressionistic one;
  • The Totality guideline is mandatory in multi-count cases; and
  • The Mental Disorders guideline must be considered whenever such issues are raised, with careful attention to causation and culpability.

Smith develops the practical application of those guidelines in a context where:

  • multiple penetrative and non‑penetrative sexual offences occur in a single episode; and
  • some of the features that might operate as harm factors also constitute separate counts.

7. Clarification of Complex Concepts

7.1 Harm Categories and Culpability Bands in the Rape Guideline

Harm reflects the gravity of consequences and manner of the offence. In rape:

  • Category 1 is reserved for the most serious cases, such as those involving:
    • particularly severe physical or psychological harm;
    • abduction with extreme violence or terror;
    • prolonged detention or repeated rapes over time; or
    • extreme degradation or humiliation.
  • Category 2 covers serious cases with aggravating features (e.g. some threats, abduction, some degradation) but not rising to the extreme level of category 1.

Culpability concerns the offender’s blameworthiness, considering factors like:

  • Planning or premeditation;
  • Use of a weapon;
  • Exploitation of vulnerability (e.g. victim’s age, intoxication);
  • Role in group offending.

In Smith, the Court affirmed culpability A and harm category 2. The offence was very serious but, because the additional penetrative acts were charged separately and the evidence on psychological harm fell short of “severe”, it did not cross the threshold into category 1 ([14], [23]).

7.2 The Totality Principle and Concurrent Sentences

The totality principle means that where an offender is sentenced for multiple offences, the overall sentence:

  • Must reflect the total criminality; but
  • Must not be “crushing” or disproportionate to the combined seriousness.

For offences arising from the same incident, it is usually appropriate to:

  • Identify the most serious offence as the lead offence (here, count 1, the vaginal rape);
  • Impose concurrent sentences for offences forming part of the same incident; and
  • Uplift the sentence on the lead offence to reflect the fact that there were additional serious offences.

In Smith, the error was not in using concurrency, but in failing to apply a sufficiently strong and explained uplift to the lead count.

7.3 Dangerousness and Extended Sentences

A finding of dangerousness allows the court to impose an extended sentence where:

  • The offender has committed a specified violent or sexual offence; and
  • There is a significant risk that they will commit further such offences and cause serious harm.

An extended sentence has:

  • a custodial term (the “tariff”), and
  • an extended licence period after release, beyond what would normally apply.

The licence extension is to manage risk to the public after release, allowing recall to custody if necessary. In Smith, the 3‑year extended licence remained constant; only the custodial term was increased.

7.4 Sentencing Offenders with Mental Disorders

The guideline on mental disorders stresses:

  • Mental disorders may reduce culpability where they impair judgment, impulse control, or understanding of consequences; but
  • Not every disorder has a direct causal link to offending; and
  • Even absent causation, such conditions may bear on how an offender will cope with custody or supervision and may justify some leniency.

Here:

  • ADHD, impulsivity and difficulty regulating emotions were noted ([13]);
  • There was no evidence of severe mental illness or capacity issues ([13]);
  • The judge and the Court treated these factors as modest mitigation only ([15], [24]).

7.5 Abduction, Degradation and Sustained Incidents

The guideline treats as harm-enhancing:

  • Abduction: moving the victim to an isolated or non‑public place by force or coercion; here, dragging her to bushes by a bridge ([5], [21]).
  • Sustained incident: a course of conduct involving repeated or prolonged sexual acts during the same episode.
  • Additional degradation/humiliation: conduct beyond the intrinsic indignity of the sexual act, such as forced acts (e.g. oral sex under threats, forced kissing) that particularly humiliate or degrade.

In Smith, the Court:

  • Accepted that abduction and threats were properly treated as category 2 harm factors on the lead rape ([21]);
  • Recognised that the overall episode was sustained and degrading ([22]);
  • But declined to use those latter features as harm factors on the lead count because they corresponded to separate counts (the second rape, assault by penetration, etc.) ([22]–[23]).

This illustrates the distinction between:

  • Using facts as harm factors within a single count (where no separate counts exist); and
  • Relying on separate counts to reflect those features, requiring an uplift in the lead sentence under totality rather than recasting them as guideline harm factors.

8. Impact and Future Significance

8.1 Guidance for Sentencing Judges in Multi‑Offence Sexual Cases

Smith provides clear guidance for judges sentencing multiple sexual offences arising from a single incident:

  • Where distinct penetrative acts and sexual assaults are separately charged, sentencers must avoid double counting those acts as harm factors on the lead count.
  • However, they must then ensure a substantial uplift to the lead sentence to reflect that:
    • the incident was sustained; and
    • the victim was subjected to additional degradation and humiliation by multiple acts.
  • Sentencing remarks should make that uplift transparent, so that it is “possible… to work out” what increase was applied to capture the additional criminality ([25]).

8.2 Structuring Sentencing Remarks

The judgment implicitly reinforces the importance of structured, reasoned sentencing remarks. When dealing with guidelines, judges should make clear:

  1. The selected harm and culpability categories and the reasons for them;
  2. The starting point and guideline range;
  3. The effect of aggravating and mitigating factors;
  4. The fact and magnitude of any uplift to the lead sentence to reflect multiple offences and totality.

Failure to articulate these steps exposes the sentence to challenge on unduly lenient grounds, particularly in serious sexual cases.

8.3 Mental Health and Maturity as Mitigation in Serious Sexual Offending

The Court’s treatment of ADHD, immaturity and mental health difficulties reflects a measured approach: such factors remain relevant and can reduce culpability or justify some leniency, even in grave sexual cases, but they will generally carry limited weight absent a clear causal nexus to the offending.

Sentencers must:

  • Consider the Mental Disorders guideline; but
  • Be cautious about allowing non‑causal conditions to overshadow strong aggravating features, especially where the offending is predatory, violent, and repeated.

8.4 Reinforcing the Role of the Attorney General’s Reference

Smith exemplifies the proper use of the Attorney General’s Reference to correct under‑punishment in serious sexual cases while respecting the sentencing judge’s front‑line assessment. It sends a signal that:

  • Where multiple penetrative offences are effectively absorbed into a single sentence without adequate uplift, the sentence may well be unduly lenient;
  • The Court of Appeal will be prepared to increase sentences significantly (here by 4½ years in custody) to ensure that the totality of offending is reflected; and
  • Extended sentences will not automatically be increased in licence length; the focus may appropriately be on the custodial element where that is plainly too low.

9. Conclusion

R v Smith [2025] EWCA Crim 1610 is a noteworthy authority on sentencing for multiple sexual offences within a single incident. Its key contributions are:

  • Confirming that where additional penetrative acts and sexual assaults are separately charged, they should not be double counted as harm factors on the lead rape count;
  • Emphasising that the existence of multiple category 2 harm factors does not automatically compel a move to harm category 1; the “extreme nature” threshold remains meaningful;
  • Clarifying that the totality principle requires a clear and substantial uplift to the lead sentence where there are multiple serious sexual offences, even though the sentences are concurrent;
  • Reinforcing the need for transparent, structured sentencing remarks that show how guidelines and totality have been applied; and
  • Illustrating how mental health and immaturity can operate as limited mitigation in very serious sexual cases, without undermining the imperative of robust protection of the public.

By increasing the custodial term on the lead rape from 12½ years to 17 years, while maintaining the 3‑year extended licence, the Court of Appeal ensured that the sentence genuinely reflected the gravity of a sustained, degrading, multi‑offence sexual attack by a dangerous offender with a serious criminal history. The decision will be of practical importance to sentencing judges and practitioners in calibrating sentences for complex sexual offending and in understanding how the Sentencing Council’s guidelines operate in conjunction with the totality principle.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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