McGuiness & Anor, R. v

Sentence severity must be assessed in substance as well as form. A court may replace a suspended sentence with an immediate custodial term where the latter is not, in practical effect, more severe, even though it may appear so formally. A consecutive sentence for separate drug offences may be justified, particularly where the offences involve different classes of drug and relevant antecedents. The overall term must nevertheless remain proportionate, and a consecutive component may be reduced where excessive in all the circumstances.

The appellants pleaded guilty to drug offences and were sentenced in the Crown Court. McGuiness received consecutive terms totalling 28 months’ imprisonment for possession of amphetamine with intent to supply and possession of ecstasy. Hartin received 52 weeks’ imprisonment suspended for two years, with supervision and unpaid work, for possession of amphetamine with intent to supply.

Both appealed with leave. McGuiness challenged the consecutive ecstasy sentence. Hartin contended that, having already spent about seven months on remand, the suspended sentence left him in a worse practical position than the 14-month immediate custodial sentence which the judge had said would otherwise have been appropriate.

1. The appeals were allowed. McGuiness’s appeal was allowed to the extent of reducing the consecutive sentence for possession of ecstasy from 12 months to six months. His sentence therefore became 22 months’ imprisonment, less 213 days spent on remand.

2. The 16-month sentence for possession of amphetamine with intent to supply was neither wrong in principle nor manifestly excessive. McGuiness had a significant previous conviction for possession of a class A drug with intent to supply. A consecutive sentence for the separate ecstasy offence was not wrong in principle. Ecstasy was a class A drug and the quantity, though not large, was not minimal. However, 12 months consecutively was excessive in all the circumstances.

3. Hartin’s suspended sentence was quashed and replaced with an immediate custodial sentence of 14 months, less 213 days spent on remand. Although replacing a suspended sentence with immediate custody might formally appear to increase the sentence contrary to section 11(3) of the Criminal Appeal Act 1968, the court assessed its real effect. Hartin had already served about seven months on remand. An immediate 14-month sentence would effectively have been completed when imposed, subject to compliance with licence conditions. The suspended sentence instead imposed obligations and the risk of activation for two years. The substituted sentence did not require Hartin to return to custody.

• Court of Appeal (Criminal Division): The appeals against sentence were allowed in [2008] EWCA Crim 1956. McGuiness’s total sentence was reduced to 22 months. Hartin’s suspended sentence was quashed and replaced with 14 months’ imprisonment, less time on remand.

• Crown Court: The appellants pleaded guilty at Preston Crown Court on 30 January 2008 and were sentenced at Burnley Crown Court on 6 March 2008.