When Separate Proceedings Should Not Mean Additional Punishment:

A Note on Totality and R v Riberio

by Liam O’Brien

Notwithstanding that every effort is made to avoid piecemeal sentencing exercises, most criminal practitioners will occasionally encounter cases in which offences committed during the same period are sentenced at different times. When this does occur, the consequences can be significant.

Sometimes the position arises because separate investigations progress at different speeds. One case may be ready for sentence while another offence committed at around the same time remains under investigation. This can result in a defendant finding themselves sentenced for one group of offences only to find themselves brought back before the court months later for further offences committed during the same period.

In those circumstances, there is a risk of real prejudice to the Defendant. Offending which could and should have been sentenced together becomes fragmented across separate proceedings. It is then all too easy for a subsequent sentencing court to view the offences before it in isolation, artificially compartmentalising offences that, in reality, formed part of an amorphous course of conduct and thereby impose a sentence which sits uneasily with the principle of totality.

This is a risk which is not confined to the Crown Court and those practising in the magistrates’ courts should be aware that the same principles apply whenever a court is required to sentence offending which could and should have been dealt with together as part of a single sentencing exercise.

The Court of Appeal recently considered how to correctly deal with this situation in R v Riberio [2026] EWCA Crim 87

In Riberio, the Appellant was initially sentenced in September 2024 to 28 months’ imprisonment for drug dealing which occurred between October 2023 and February 2024. He later appeared before a different judge for further similar offending between June 2024 and August 2024 while the Defendant was on bail awaiting sentence.

While the second sentencing judge was conscious of the principle of totality he approached the sentence in a way which demonstrates another risk defendants in this position find themselves, that of the second sentencing judge deciding that the earlier sentencing judge was too soft!

The sentencing judge indicated that had he been passing sentence for the earlier offending he would have imposed 40 months, not 28 months. He then said that, had he been sentencing all matters together, he would have imposed a total sentence of 5 years and 6 months. Accordingly, the sentence he imposed for the offences before him was 5 years 6 months (66 months) minus the 2 years and 4 months (28 months) previously, that is 3 years 2 months (38 months).

The appeal was allowed and the sentence reduced to just two years.

The judgment in Riberio is genuinely interesting. It is particularly noteworthy because it addresses an assumption many practitioners would instinctively make when confronted with this type of case. It is intuitive to assume that the correct approach is to ask what sentence would have been imposed had all of the offending been sentenced together and then work backwards from that figure. Indeed, that is what Counsel for the Appellant suggested was the correct approach.

The Court of Appeal, though, held that a slightly more nuanced approach should be taken. This, it seems, is to avoid the risk of a second judge re-conducting a sentencing exercise that has already been completed and reaching a different result.
The Court held that the subsequent sentencing court must proceed on the basis that the sentence imposed by its predecessor was correct. It must then identify the sentence that would be appropriate for the offences before it viewed in isolation. Having done so, it must take proper account of the sentence already imposed and apply the principle of totality so as to ensure that the overall punishment remains just and proportionate.

That is a subtly different exercise from attempting to reconstruct the sentence that would have been imposed had all matters been before the first court.

In Riberio, that resulted in a significant reduction in sentence. Having considered the totality guidelines, the Court held that given “the close association in time and type between these two sets of offences the discount must be very considerable”.
The practical significance of Riberio was recently illustrated in proceedings in which I appeared on behalf of a defendant facing sentence for two dwelling-house burglaries and an associated fraud offence.

Several months earlier, the defendant had received an immediate sentence of 32 months’ imprisonment following guilty pleas (four years before credit) for a series of acquisitive offences committed over a period of approximately six weeks. Those offences included an attempted dwelling-house burglary, a series of commercial burglaries, thefts from motor vehicles, interference with a motor vehicle and associated offences of criminal damage.

The offences before the court occurred only days later and were plainly of a similar character. Viewed objectively, all offending formed part of the same relatively short period of sustained criminality.

The chronology was unusual. The defendant had been identified from CCTV shortly after the offences and forensic evidence linking him to one of the burglaries was available within weeks. Despite that, and for reasons that were never made clear, the offences were not charged until after the Defendant had been sentenced for the earlier offending and, in fact, had served the majority of the custodial portion of his sentence.

The defence submission was straightforward. Had all matters been progressed with reasonable expedition, they would almost certainly have been sentenced together. The defendant should not be placed in a materially worse position because that did not occur. Taking into account the principles addressed in Riberio and totality the sentence for the instant offences should be so dramatically reduced that a compelling argument could be made for suspension.

The sentencing judge accepted that submission. He indicated that, had the burglary and fraud offences been sentenced in isolation, the appropriate sentence would have been four years’ imprisonment, reduced to 32 months to reflect credit for guilty pleas. Applying the principle of totality, and taking account of both the chronology and the guidance in Riberio, the judge reduced the sentence to 12 months’ imprisonment. Following full credit for guilty pleas, the sentence became one of eight months’ imprisonment and was suspended.

The above illustrates how important it is to get to grips with the chronology of a defendant’s recent offending. The chronology of offending is often treated as background but cases of this kind demonstrate that it can be of central importance. While the type of situation that arose in Riberio and the case I was instructed in are relatively uncommon, practitioners who take the time to get to grips with the chronology may identify a powerful totality argument capable of making a very substantial difference to the sentencing outcome.

Liam is an experienced criminal practitioner regularly instructed to prosecute and defend in cases involving criminal allegations of the most serious nature. If you wish to instruct Liam or any member of the criminal team, their clerks can be contacted here.