Strugnall, R. v

A sentencing court must follow an applicable guideline unless it is contrary to the interests of justice to do so. If it departs from a guideline, it must clearly explain why. A drug rehabilitation requirement may properly replace custody only where the sentence would otherwise be short or moderate and there is a sufficient prospect of successful rehabilitation.

Serious supply of class A drugs, particularly repeated offending while on bail, ordinarily requires custody. Employment, accommodation and a wish to address addiction are relevant mitigation, but without a realistic prospect of treatment success they do not justify a non-custodial sentence which fails to reflect the offending’s seriousness.

The offender pleaded guilty at Norwich Crown Court to two offences of possessing heroin with intent to supply. The first involved almost 30 grams of heroin and associated drug-supply equipment. The second, involving further heroin, was committed while she was on bail for the first offence.

The judge imposed a 12-month community order with a six-month drug rehabilitation requirement and 15 rehabilitation activity days. The Attorney General referred the sentences as unduly lenient under section 36 of the Criminal Justice Act 1988.

The central issues were whether the judge had lawfully departed from the relevant sentencing guideline, whether rehabilitation could properly replace custody, and whether the community order was unduly lenient.

1. Reference allowed. The community-order sentences were unduly lenient. The court quashed them and substituted consecutive sentences of two years four months’ imprisonment on each count, making a total of four years eight months.

2. The applicable guideline placed each offence in category 3 with a significant role, carrying a starting point of four and a half years’ custody. The seriousness was substantial: the first offence concerned a significant quantity of heroin, and the second was committed while the offender was on bail for the first. The latter was a gravely aggravating feature.

3. Under section 125 of the Coroners and Justice Act 2009, a court may depart from a relevant guideline only where the interests of justice require it. The sentencing judge neither stated that this threshold was met nor gave reasons capable of establishing it. The statutory obligation to explain such a departure promotes consistency and enables the offender, public and appellate court to understand the distinction made.

4. A drug rehabilitation requirement can be an alternative to a short or moderate custodial sentence only where there is a sufficient prospect of success. This was not such a case. Previous community orders had been breached; the offender had reoffended on bail; she had made false claims about the drugs; and the reports disclosed continuing reluctance to engage with treatment. The judge placed insufficient focus on the antecedent question whether successful compliance and rehabilitation were realistically likely.

5. The court took account of the guilty pleas and did not impose a term longer than the offender had heard the judge indicate. Custody was nevertheless unavoidably necessary.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentences unduly lenient, quashed the community orders and substituted a total of four years eight months’ imprisonment.

• Crown Court at Norwich: On 17 September 2018, following guilty pleas to two offences of possessing heroin with intent to supply, the court imposed a 12-month community order with a drug rehabilitation requirement and rehabilitation activity requirement.