Williams, R v

Time spent on remand before a suspended sentence order cannot be added to the suspended term as a notional aggregate sentence. Under section 240 of the Criminal Justice Act 2003, that remand time must be credited if the suspended sentence is later activated. A court which considers an immediate custodial term appropriate should not instead impose a suspended sentence on that basis.

Importation of a substantial quantity of a Class A drug ordinarily requires an immediate and lengthy custodial sentence. A non-custodial outcome is available only in the most exceptional circumstances, such as where an offender's will has been overborne by another person.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentence imposed on Lee Williams following his conviction for conspiracy to supply cocaine.

Williams had accepted delivery at his home of a parcel containing 988 grams of cocaine hydrochloride, equivalent to 721 grams at 100% purity. The sentencing judge imposed twelve months' imprisonment suspended for two years, with a residence requirement, after taking account of 240 days spent on remand, his poor health, vulnerability and subordinate role.

The central issues were whether the suspended sentence was unduly lenient and whether remand custody could be treated as part of an aggregate sentence with the suspended term.

1. The court granted leave and allowed the Attorney General's reference. It quashed the suspended sentence order and substituted a sentence of three-and-a-half years' imprisonment.

2. The sentencing judge's approach to remand custody was erroneous. Under section 240 of the Criminal Justice Act 2003, the 240 days spent on remand would ordinarily be credited against the twelve-month term if the suspended sentence were activated. That consequence, established in R v Fairbrother [2008] 2 Cr App R(S) 43 and also recognised in Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin), undermined the supposed aggregate sentence. If a sentence of two-and-a-half years or more was appropriate, a suspended sentence should not have entered the judge's consideration.

3. The court accepted the offender's lack of relevant convictions, ill health, vulnerability and subordinate role as substantial mitigation. But the jury's verdict established that he knowingly joined a conspiracy to import Class A cocaine. There was no evidence that another person had overborne his will. The exceptional circumstances in Attorney General's Reference No 8 of 2007 [2008] 1 Cr App R(S) 1, where the offender was manipulated and controlled by an older partner, were absent.

4. The least appropriate sentence after trial was four years' imprisonment. A modest further allowance was justified for the anxiety caused by the prospect of returning to custody after release. The court therefore imposed three-and-a-half years, directed surrender by 4 pm that day, and directed that the 240 days on remand count towards that sentence.

5. The court also repeated that the obligation to have regard to sentencing guidelines applies only to definitive guidelines. A consultation document does not have that status: R v Valentas and Tabuns [2010] EWCA Crim 200.

• Court of Appeal (Criminal Division): The Attorney General's reference was allowed and the suspended sentence was quashed: [2011] EWCA Crim 2126.
• Isleworth Crown Court: Following conviction by a jury for conspiracy to supply cocaine, the offender received twelve months' imprisonment suspended for two years with a two-year residence requirement.