Mandishona, R v

For possession of Class A drugs with intent to supply, immediate custody will be appropriate in most cases, including for an offender at the bottom of the supply chain who acted under another’s direction. It is not inevitable. A sentencing court must not treat suspension as available only in exceptional circumstances, or adopt a rigid offence-based rule. It must assess the offender’s actual role, exploitation, personal mitigation, rehabilitation and the circumstances of the particular case. Where those matters justify suspension, an immediate custodial term may be manifestly excessive although the offending warrants a custodial sentence.

R v Tawona Mandishona was an appeal against sentence from the Crown Court at Maidstone. The appellant, aged 20 and of previous good character, had pleaded guilty to two counts of possessing Class A drugs with intent to supply.

He was sentenced on 17 June 2019 to concurrent terms of 18 months’ immediate detention in a young offender institution. The prosecution accepted that he was to be sentenced as a lesser-role offender acting under direction. His case was that he had been exploited by others after receiving gifts and had performed a limited function in their drug activity.

The appeal concerned whether the custodial terms should have been suspended, having regard to the appellant’s role, mitigation, rehabilitation prospects and time already served.

1. Appeal allowed. The court quashed the immediate detention terms and substituted concurrent terms of 18 months’ detention, suspended for two years from 17 June 2019.

2. Possession of Class A drugs with intent to supply will usually merit immediate custody. That remains so for offenders operating at the bottom of the supply chain and acting on others’ instructions. The court also identified as aggravating the association with a London group travelling to a smaller town to supply drugs.

3. However, the sentencing judge erred by treating immediate custody as the only possible sentence for Class A drug dealing and by invoking an abolished threshold of exceptional circumstances before a sentence could be suspended. The question was what sentence was appropriate in the particular case, not whether the case met a rigid exception.

4. The judge should have engaged more closely with the accepted basis of plea and the appellant’s mitigation. The appellant had a limited role, had been exploited and set up by others, had strong personal mitigation, no prior offending, and realistic prospects of rehabilitation. His educational progress had resulted from his own efforts despite a disadvantaged background. Those matters justified suspension of the custodial terms.

5. The appellant had already served more than nine weeks in detention. In those circumstances, the court imposed no curfew, unpaid-work or other requirements. The original immediate sentence was manifestly excessive because of the judge’s unduly rigid approach.

• Court of Appeal (Criminal Division) — allowed the sentence appeal and varied the immediate detention terms: [2019] EWCA Crim 1526.
• Crown Court at Maidstone — on 17 June 2019, imposed concurrent terms of 18 months’ immediate detention in a young offender institution for two counts of possession of Class A drugs with intent to supply.