Tame, R. v

A drug rehabilitation requirement may properly be used instead of a short or moderate custodial sentence only where there is a sufficient prospect that it will succeed. The sentencing court must assess both the seriousness of the offending and the evidence bearing on compliance. Serious aggravating features, including a weapon, criminal proceeds and a substantial record, may require a term too long for suspension or for this rehabilitative alternative. A history of recent breaches, reoffending and failed community requirements may demonstrate that the necessary prospect of success is absent.

The Solicitor General referred the offender’s sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient.

The offender had pleaded guilty to two counts of possessing controlled drugs with intent to supply, possessing criminal property, and possessing a bladed article. The sentencing judge imposed concurrent suspended sentences totalling two years, with a drug rehabilitation requirement, rehabilitation activity requirement and unpaid work.

The reference concerned whether the seriousness of the drug dealing and the offender’s record permitted a suspended sentence with rehabilitation, and whether there was a sufficient prospect that a further drug rehabilitation requirement would succeed.

1. The reference was allowed. The court granted leave, quashed the suspended sentences as unduly lenient, and substituted concurrent sentences totalling three years’ imprisonment.
2. The court accepted that the sentencing guideline permits a community order with a drug rehabilitation requirement where drug dependency or misuse is present and there is a sufficient prospect of success. That alternative is confined to a short or moderate custodial sentence. It should not be discouraged in an appropriate case.
3. This was not such a case. In assessing the seriousness of the drug offences, the judge had to give proper weight to the lock knife, the significant cash admitted to be criminal property, and the offender’s extensive previous convictions. The cash also undermined his account to the pre-sentence report writer and indicated that he was not merely at the lowest level of the supply chain.
4. After balancing aggravation and mitigation, the notional sentence after trial could not properly be below the guideline starting point of four years and six months. Even allowing generous credit of 25 per cent for the guilty pleas, the appropriate term was three years and four months. It was therefore too long to suspend and too long to fall within the category for which rehabilitation could replace custody.
5. Independently, the evidence did not justify a finding of sufficient prospects of success. The offender’s recent sequence of breaches, reoffending and failure to comply with prior requirements showed that good intentions had not translated into compliance. The pre-sentence report gave no sound basis for optimism. Allowance was nevertheless made for his partial performance of the suspended-sentence requirements when the substituted total was fixed at three years.

• Court of Appeal (Criminal Division): Allowed the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, quashed the unduly lenient suspended sentences, and substituted concurrent sentences totalling three years’ imprisonment.
• Crown Court: On 12 September 2019, imposed concurrent suspended sentences totalling two years, with a drug rehabilitation requirement and other community requirements.