Usherwood, R. v

For a third qualifying Class A drug conviction, Powers of Criminal Courts (Sentencing) Act 2000, section 110 requires the statutory minimum sentence unless particular circumstances relating to the offence or offender make that result unjust. Ordinary youth, pressure arising from drug debts, and involvement in gang culture do not amount to such particular circumstances.

On breach of a suspended sentence, activation is ordinarily required unless unjust. Serious similar reoffending and failure to comply with requirements ordinarily support full activation, although totality may justify a reduced or concurrent activation where a substantial sentence is imposed for the new offending.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentence imposed on Wesley Usherwood at Worcester Crown Court.

Usherwood had pleaded guilty to possessing cocaine and heroin with intent to supply, producing crack cocaine, possessing criminal property, and obstructing a constable. The offences involved substantial quantities of high-purity Class A drugs, equipment associated with crack production, drug-dealing cash, and a commercial supply telephone. He committed them while subject to two suspended sentences and had largely failed to comply with the requirements of one of them.

The sentencing judge held that applying the statutory minimum term under section 110 would be unjust and imposed a total of four years’ detention. The central issues were whether that departure was lawful and how the suspended sentences should have been activated.

1. The application was granted. The original total sentence of four years’ detention was unduly lenient and was increased to six years and seven months’ detention in a young offender institution.

2. Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 applied because this was a third relevant drug conviction. It required a minimum term of seven years, subject to the permitted credit for the guilty pleas, unless particular circumstances made that outcome unjust. The judge’s reasons did not meet that standard. Youth, drug debts and the asserted pressure to continue offending were ordinary circumstances and could not justify departure. The court followed R v Lucas [2012] 2 Cr App R(S) 14 on that point. Independently of the statutory minimum, the gravity of the drug offending warranted at least seven years’ custody before plea credit.

3. Under paragraph 8(2) of Schedule 12 to the Criminal Justice Act 2003, a suspended sentence must be activated wholly or partly unless activation would be unjust in all the circumstances. Serious and similar offending during the operational period, combined with substantial non-compliance, would normally justify full activation. Totality nevertheless justified preserving the earlier judge’s activation of only 12 months from the April 2017 suspended sentence, consecutively to the new sentences.

4. The separate May 2017 suspended sentence could not properly receive no separate penalty. It was not unjust to activate it. It was activated in full for 12 weeks, but ordered concurrently to achieve totality. Counts 2, 3 and 4 were each varied to concurrent terms of 67 months’ detention; the consecutive 12-month activation remained in place.

• Court of Appeal (Criminal Division): Granted the Solicitor General leave under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, and varied it to a total of six years and seven months’ detention in a young offender institution.

• Crown Court at Worcester: On 17 April 2018, corrected the form of the custodial sentences under the slip rule and addressed errors concerning an additional suspended sentence and the criminal-property count.

• Crown Court at Worcester: On 23 February 2018, imposed concurrent three-year sentences for the principal drug offences and a consecutive 12-month activation, producing a total of four years’ imprisonment.