Whittle, R v

The provisional reduction of about 15 per cent in custodial sentence length under the Criminal Justice Act 2003 guideline was not confined to offences covered by pre-April 2003 Court of Appeal guideline cases. It applied generally to sentences subject to the new licence regime, but remained an evaluative guide rather than a mathematical rule.

For sentences of four years or more, a court should compare the practical effects of the old and new release regimes. It may conclude that the advantages and disadvantages are broadly balanced and that no reduction is appropriate. A travel restriction order may be imposed only for a statutory drug-trafficking offence; possession of a Class A drug with intent to supply was not such an offence without a designation order.

The appellant was convicted at Bolton Crown Court of two counts of possessing heroin, a Class A drug, with intent to supply. He received concurrent five-year sentences of imprisonment and a two-year travel restriction order.

He appealed his sentence. He contended that the sentencing judge should have reduced the custodial term by about 15 per cent under the Sentencing Guidelines Council’s guidance on the new custodial-sentence regime under the Criminal Justice Act 2003. He also contended that the court had no jurisdiction to impose the travel restriction order.

The Registrar further identified that, because the appellant was aged 20 when convicted, detention in a young offender institution rather than imprisonment was the appropriate form of custodial sentence. The central issues were the effect of the guideline on a five-year drug sentence and the statutory basis for the travel restriction order.

1. The appeal succeeded only in part. The travel restriction order was quashed. The five-year custodial term was not excessive, but the sentence of imprisonment was replaced by five years’ detention in a young offender institution.

2. Section 33 of the Criminal Justice and Police Act 2001 permits a travel restriction order only where the offender is guilty of a drug-trafficking offence as defined by section 34. Possession of a Class A drug with intent to supply was not specified in section 34, and no designation order under section 34(1)(c) had been made. The Crown Court therefore lacked power to impose the order.

3. Under section 172 of the Criminal Justice Act 2003, a sentencing court must have regard to relevant Sentencing Guidelines Council guidelines. The guideline was not binding, although departure required good reason. Its suggested reduction of about 15 per cent was not limited to pre-April 2003 Court of Appeal guideline cases. Such a limit would create an unjustified and irrational distinction between offences.

4. The suggested reduction was, however, a guide and sentencing was not a mathematical exercise. For a sentence of four years or more, the court compared the old and new release regimes. In a drug case, release under the former regime was unlikely at the halfway point, whereas release under the 2003 regime occurred at that point, although licence conditions continued for longer. The benefits and disadvantages were broadly balanced. The recorder was therefore entitled, and right, not to reduce the sentence below the lower end of the Djahit [1999] 2 Cr App R (S) 142 range.

5. As the appellant was aged 20 on conviction, the custodial sentence had to be detention in a young offender institution rather than imprisonment.

• Court of Appeal (Criminal Division): allowed the appeal to the extent of quashing the travel restriction order and substituting detention in a young offender institution; dismissed the challenge to the five-year term.

• Bolton Crown Court: the appellant was convicted of two counts of possessing heroin with intent to supply and sentenced to concurrent five-year terms of imprisonment. A travel restriction order was purportedly imposed under the Criminal Justice and Police Act 2001.