Attorney-General v Forsythe-Wilding

A sentencing guideline must be followed unless departure would be contrary to the interests of justice. A court may exceptionally decline to alter a sentence found unduly lenient where compelling, up-to-date evidence shows that continued drug rehabilitation in the community is more consistent with the interests of justice than immediate custody.

The availability of a drug rehabilitation requirement depends on the circumstances of the individual case. No fixed custodial term defines a short or moderate sentence for this purpose. Departure from the usual guideline sentence for a significant role in Class A drug supply will remain very rare, and a sentencing judge’s refusal to take that course will not ordinarily provide a ground of appeal.

On a reference under section 36 of the Criminal Justice Act 1988, the Attorney-General challenged as unduly lenient an 18-month sentence of imprisonment, suspended for two years, imposed at Southampton Crown Court.

The respondent had pleaded guilty to possession of heroin with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. The offence was a category 3, significant-role Class A drug-supply offence. The sentencing judge had relied on the respondent’s developing drug dependency, youth and assessed suitability for a drug rehabilitation requirement.

The central issue was whether the sentence was unduly lenient and, if so, whether the Court of Appeal should intervene despite subsequent favourable evidence of rehabilitation.

1. The court granted leave and held that the sentence was unduly lenient. Having regard to the respondent’s significant previous drug-supply convictions, the commission of the offence during the operational period of an earlier suspended sentence, the concealment of the drugs, and the applicable guideline, the usual sentence would have fallen well within the range of three years and six months to seven years’ custody.

2. Section 125(1) of the Coroners and Justice Act 2009 requires a sentencing court to follow a relevant guideline unless that would be contrary to the interests of justice. The court declined to define what constitutes a short or moderate custodial sentence in the guideline provision concerning drug rehabilitation. That question depends on all the circumstances.

3. The material supporting the suspended sentence did not fit precisely within the guideline’s rehabilitation rubric. Nevertheless, this was an exceptional case. The court could take account of the favourable, up-to-date probation evidence and the respondent’s satisfactory engagement with the order. It would not then be in the interests of justice to return him to prison.

4. The court therefore gave limited flexibility to the rigour of the guideline within section 125(1). It stressed that this course would be very rare. A future sentencing judge’s refusal to adopt it should not be treated as a viable ground of appeal.

5. The court declined to interfere with the suspended sentence. If the respondent failed to comply with the rehabilitative course opened by the order, he would be liable to serve the custodial sentence that had been suspended.

• Court of Appeal (Criminal Division) — On the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988, the court found the sentence unduly lenient but declined to interfere.
• Crown Court at Southampton — On 28 February 2018, Judge Burrell QC imposed 18 months’ imprisonment, suspended for two years, with rehabilitative requirements for possession of heroin with intent to supply.