Dalton, R. v

When deciding whether to activate a suspended sentence, the court must give practical effect to credit for time already spent in custody. Where that credit substantially exhausts the suspended term, and the circumstances would otherwise justify only a reduced activation, full activation may be improper and no meaningful lesser term may be available.

A sentence for social supply of a small quantity of a Class A drug must reflect its seriousness. However, an appellate court may exceptionally reduce it where the sentencing structure has distorted the assessment of prompt candour, personal mitigation and the appropriate standalone sentence.

The appellant pleaded guilty in the Crown Court at Chelmsford to possessing two wraps of heroin, totalling 750 milligrams, with intent to supply one wrap to his girlfriend. The Recorder imposed nine months’ imprisonment for that offence.

On the same occasion, the Recorder activated in full a 12-month suspended sentence imposed for an earlier arson offence and made the terms consecutive. The resulting sentence was 21 months’ imprisonment, subject to credit for 154 days previously spent on remand in relation to the arson.

The appellant appealed by leave of the single judge. The central issues were whether activation of the suspended sentence was proper and whether the nine-month term for the drug offence was excessive when considered on its own.

1. Appeal allowed in part. The order activating the 12-month suspended sentence was quashed. The nine-month sentence for possession with intent to supply was also quashed and replaced with six months’ imprisonment.

2. Although activation of a suspended sentence and consecutive terms would normally have been open to the Recorder, three matters required a different approach. The new heroin offence was different in nature from the earlier arson; the arson was old; and the appellant had already spent 154 days on remand for the arson. That custody represented approximately 44 weeks of a 52-week sentence. The Recorder therefore could not properly activate the whole term. Yet a significantly shorter activation would give impracticable effect to the remand credit. The only proper course was not to activate the suspended sentence.

3. Considered as a standalone sentence, nine months was consistent with decisions concerning social supply among friends of small quantities of cocaine, including Branton-Speak [2007] 1 Cr App R (S) 55. Those authorities, rather than Afonso [2005] 1 Crim App R (S) 99, supplied the relevant guidance.

4. The court stressed that its conclusion was exceptional and gave no general indication that nine months was wrong for social supply of a Class A drug in these quantities. However, once activation was removed, the court could not be confident that the Recorder would have imposed the same term. Greater weight should or might have been given to the appellant’s prompt and candid admissions and personal background. The substituted six-month sentence was therefore appropriate. The quashing of the activation order was expected to result in the appellant’s imminent release.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 1855, allowed the sentence appeal in part, quashed activation of the suspended sentence, and substituted six months’ imprisonment for the drug offence.
• Crown Court at Chelmsford: The Recorder imposed nine months’ imprisonment for possession of heroin with intent to supply, activated a 12-month suspended sentence for arson in full, and ordered consecutive terms.