Agus, R v

Where an offender commits a serious further offence while subject to a suspended sentence, immediate custody may be necessary even where there is strong personal mitigation and imprisonment will substantially affect dependent family members. The court must take account of the interests and human rights of those dependants. Those interests do not, however, ordinarily outweigh the legitimate aim of punishment where custody is necessary and proportionate.

On an appeal against sentence, substantial mitigation does not establish that a short immediate custodial sentence is manifestly excessive where the sentencing judge has already made a very substantial reduction for that mitigation.

The appellant pleaded guilty in the Crown Court at Hull to conveying four tablets of buprenorphine, a class C controlled drug, into a prison for her imprisoned partner. She received two months’ imprisonment. The judge also activated two months of a six-month suspended sentence imposed for assisting an offender after an armed robbery.

She sought to appeal her sentence, relying on her early guilty plea, asserted pressure from others, limited previous offending, and her responsibilities for a daughter with profound medical needs and a grandson with medical difficulties. The central issue was whether those circumstances made immediate custody manifestly excessive and justified a further suspended sentence.

1. Leave to appeal was granted, but the appeal was dismissed. The court held that the sentence was not manifestly excessive.

2. Conveying controlled drugs into prison was serious offending. Drug misuse in prisons presented obvious dangers, and the ordinary sentencing range identified by the authorities was four to eight months’ imprisonment. The two-month sentence imposed for the index offence had therefore already been reduced very substantially to reflect the appellant’s mitigation.

3. The court accepted that the appellant had powerful personal mitigation. She had pleaded guilty early, had little other recent offending, and was an important carer within a family facing unusual challenges. It also accepted that the interests and human rights of her partially dependent daughter and grandchild had to be considered.

4. Those considerations did not make a further suspension appropriate. Appropriate punishment could only be achieved by immediate custody. The appellant’s mitigation did not outweigh that factor, particularly given the pattern identified in the pre-sentence report of committing offences to please her partner.

5. Imprisonment served a legitimate aim and was necessary and proportionate. The existence of dependent relatives did not mean that their rights were infringed by the imprisonment of a close family member for serious criminality, especially where local-authority care was available for the appellant’s daughter. There was also no evidence of an imminent loss of the family home.

6. There was no injustice in activating two months of the suspended sentence consecutively. The application for bail did not arise.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted, but the appeal was dismissed: [2017] EWCA Crim 1273.
• Crown Court at Hull: On 30 June 2017, the appellant received two months’ imprisonment for conveying controlled drugs into prison. Two months of an earlier suspended sentence were activated consecutively.