Date: Feb 17, 2026

Totality Cannot Be Used to Correct an Allegedly “Unduly Lenient” Earlier Sentence Absent a s.36 Reference

1. Introduction

Riberio, R. v ([2026] EWCA Crim 87) concerns the correct application of the totality principle where an offender is sentenced on a second occasion for further offending connected in type and time with earlier offending for which he is already serving a determinate sentence.

The appellant (26) had previously received 2 years and 4 months for operating the “Riley” drugs line. While on bail and then again after a further release on bail, he operated the “Alfie” line and then an unnamed line, supplying Class A drugs (heroin and crack cocaine/cocaine). He later pleaded guilty to two counts under section 4(3)(b) of the Misuse of Drugs Act 1971.

The sentencing judge (HHJ Weekes) considered the earlier sentence “lenient, even very lenient” and constructed the new term so as to reflect what he believed the earlier sentence ought to have been. The appeal raised: (i) whether that approach violated totality and unlawfully “re-sentenced” the earlier matter; (ii) whether the new sentence was manifestly excessive; and (iii) whether (and how) the court should address practical consequences of release timing and concurrency.

2. Summary of the Judgment

The Court of Appeal allowed the appeal and reduced the sentence on each count from 3 years and 2 months to 2 years’ imprisonment (concurrent).

The Court held, as a matter of principle, that where the earlier sentence has not been referred as unduly lenient under section 36 of the Criminal Justice Act 1988, the second sentencing court must proceed on the footing that the earlier sentence was the correct sentence and cannot treat it as “unduly lenient” and adjust the new sentence to compensate. The judge’s approach wrongly bypassed the protections applicable to any increase of an earlier sentence.

3. Analysis

3.1 Precedents Cited

R v Thompson [2012] EWCA Crim 1764

R v Thompson [2012] EWCA Crim 1764 addressed a common “later-discovered offences” scenario and endorsed a practical approach: ask what sentence would have been imposed if all matters had been dealt with at the first hearing. In Thompson the error concerned guilty plea arithmetic and overall excess; importantly, there was no attempt to treat the original sentence as “wrong” or “unduly lenient”.

In Riberio, the Court used Thompson to illustrate acceptable totality methodology, while also distinguishing it: Thompson does not license a later judge to “correct” an earlier sentence considered too low. Thus, Thompson informs the totality exercise, but cannot be used as a vehicle for de facto revision of an unchallenged sentence.

R v Pidgeon [2017] EWCA Crim 538; [2017] 2 Cr. App. R. (S.) 43

R v Pidgeon [2017] EWCA Crim 538; [2017] 2 Cr. App. R. (S.) 43 highlighted how early release rules can distort a judge’s intended credit if the judge reduces the pronounced term rather than acknowledging time served in a way that properly reflects custody days. The case demonstrates that, because of release provisions, one must take care in mechanics when “counting” prior custody against a sentence.

In Riberio, Pidgeon was treated as a case about method (how to avoid mathematical error given release provisions), not as authority that release regimes should generally be factored into setting sentence. The Court positioned Pidgeon as consistent with the general rule that early release is ordinarily left out of account when determining the proper sentence length.

Patel [2021] EWCA Crim 231; [2021] 1 WLR 2997

In Patel [2021] EWCA Crim 231; [2021] 1 WLR 2997, Dame Victoria Sharp P reaffirmed binding principle: sentencing judges ordinarily must not take early release provisions into account when assessing the appropriate sentence. Patel summarised authority (via R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932) and gave examples where the principle applied despite harsh or anomalous effects, including Dunn (Tony) [2012] EWCA Crim 419 and Francis [2014] EWCA Crim 631.

That body of authority supported the Court’s rejection of arguments that the “practical consecutiveness” caused by imminent release on the earlier sentence should, as a matter of principle, drive sentencing length. The focus remains the just and proportionate term, with totality applied correctly, rather than tailoring the sentence to anticipated release mechanics.

3.2 Legal Reasoning

(a) The new principle: no “back-door” correction of an unchallenged sentence

The Court identified a gap in express guideline material: the Sentencing Council guideline “Totality” (effective 1 July 2023) does not address whether a later judge may treat an earlier sentence as unduly lenient. The Court therefore stated a clear principle:

Where an earlier sentence has not been referred as unduly lenient under section 36 of the Criminal Justice Act 1988, the second sentencing court must proceed on the basis that the earlier sentence was correct and cannot question it as “unduly lenient”.

Applying that principle, the sentencing judge’s approach was “wrong in principle” because it effectively re-sentenced the “Riley” matter by building a notional longer “proper” sentence for it into the new term. That bypassed the statutory and procedural safeguards attached to any increase of sentence via the Attorney General’s unduly lenient reference scheme.

(b) What the second judge should do instead

The Court rejected two polar approaches:

The appellant’s proposed approach—asking what the earlier judge would have added if sentencing both cases—was considered undesirable (and often impractical), as it requires speculative reconstruction of another judge’s sentencing decision.
The respondent’s approach—simply sentencing for overall offending—risked the same impermissible effect: using the second sentencing to increase the practical punishment for the earlier, un-referred sentence.

The correct approach was articulated as follows: the sentencing judge must determine the just and proportionate sentence for the instant (“Alfie line”) offending, while taking proper account of the earlier sentence already passed, by applying totality so that the overall time to be served remains just and proportionate.

(c) Application to the facts (guideline, plea credit, then totality)

The Court assessed the “Alfie line” offending as within category 3 / significant role under the definitive drugs guideline (starting point 4½ years; range 3½–7 years). Aggravating features included: offending on bail (the Court noted section 64 of the Sentencing Code) and offering two Class A drugs. The Court’s estimate was 5 years and 4 months after trial, reduced by 25% credit to 4 years.

The Court then applied totality after guilty plea credit (consistent with the guideline sequence) and emphasised that consecutive arithmetic rarely produces a proportionate overall term without downward adjustment. Because the two sets of offences were closely associated in time and type, the discount had to be “very considerable”, yielding a final term of 24 months.

3.3 Impact

Constrains second sentencing courts: Courts must not use totality to “correct” an earlier sentence regarded as too low unless the statutory unduly lenient procedure under section 36 of the Criminal Justice Act 1988 has been invoked.
Protects finality and procedural safeguards: The decision reinforces that sentence increases must pass through the Law Officers’ reference route, preserving time limits and the defendant protections intrinsic to that regime.
Refines totality practice for sequential sentences: Even where consecutive sentencing is the ordinary response to later offending, where the conduct is closely related in time/type, substantial totality reduction may be required to achieve a just overall term.
Clarifies relationship with release mechanics: Consistent with Patel, early release provisions generally remain irrelevant to setting the proper term, though Pidgeon continues to warn against mechanical errors when trying to give credit for time already served.

4. Complex Concepts Simplified

Totality: A sentencing principle requiring the court to ensure that the overall sentence for multiple offences (or multiple sentencing occasions) is just and proportionate to the total criminality—often requiring a reduction from the simple sum of individual sentences.
Concurrent vs consecutive sentences: Concurrent sentences are served at the same time; consecutive sentences are served one after another. A sentence described as “concurrent” may be “practically consecutive” if the earlier sentence is about to end, but that practical effect does not permit a court to inflate the new term to compensate.
Unduly lenient reference (section 36 of the Criminal Justice Act 1988): A mechanism allowing the Attorney General to refer certain Crown Court sentences to the Court of Appeal if they are arguably unduly lenient. Without such a reference, later courts must not treat the earlier sentence as wrongly low.
Offending on bail (section 64 of the Sentencing Code): A statutory aggravating feature: committing an offence while on bail must be treated as increasing seriousness. It can raise sentence—but it does not allow a judge to “repair” an earlier sentence thought too low.
“Lead offence”: When sentencing multiple offences together, the court commonly identifies the most serious as the “lead” and adjusts to reflect the whole picture. When sentencing is split across occasions, the court cannot recreate a single lead-offence structure by re-writing the earlier sentence.

5. Conclusion

Riberio, R. v establishes a clear boundary: totality is not a lawful device for increasing the effective punishment of an earlier, un-referred sentence regarded as lenient. Absent a section 36 reference, the earlier sentence must be treated as correct. The second sentencing court must instead (i) determine a proportionate sentence for the new offending, and (ii) apply totality to ensure the combined term is just—often requiring a meaningful downward adjustment where offences are closely connected.