William & Anor, R. v

A sentencing court must follow an applicable guideline unless departure would be contrary to the interests of justice. Strong evidence of rehabilitation, good character, mental-health mitigation and delay may reduce sentence, but they must be weighed against punishment, deterrence and public protection in serious commercial drug supply.

A suspended sentence is not a proper alternative where the guideline-based custodial term is of substantial length and the court has identified no compelling reason for departure. On an Attorney General reference, the Court of Appeal may reflect genuine post-sentence rehabilitation and compliance with a suspended sentence. It must nevertheless increase an unduly lenient sentence where immediate custody remains necessary.

The offender pleaded guilty at Lewes Crown Court to seven offences of possession with intent to supply controlled drugs of Classes A, B and C, and one offence of possession of ketamine. The prosecution case was that he had operated a commercial drug-supply business using local deliveries and postal services.

The judge imposed concurrent suspended sentences, with unpaid work, a curfew and rehabilitation requirements. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central issues were whether the departure from the drug sentencing guideline was justified by rehabilitation and personal mitigation, and whether the sentence should be increased despite the offender’s substantial subsequent compliance with the suspended sentence requirements.

1. The court granted leave, held that the sentence was unduly lenient, quashed the suspended sentences and substituted concurrent custodial terms producing a total of three years’ imprisonment.

2. The offending fell within the category 3 significant role under the applicable drug guideline. It involved Class A drugs, a number of different controlled drugs, a high-purity quantity of cocaine and a sophisticated commercial enterprise. Concurrent sentences were appropriate, but the overall criminality meant that the appropriate sentence after trial, before mitigation, was well above the starting point for a single Class A offence.

3. The offender’s effective previous good character, rehabilitation, voluntary work and previously undiagnosed mental-health conditions were substantial mitigation. The conditions helped explain his personal drug use, but did not explain supplying drugs to others. Even after full mitigation and limited credit for late guilty pleas, the appropriate total sentence at the sentencing date could not have been less than about four and a half years’ imprisonment.

4. Under section 125 of the Coroners and Justice Act 2009, the judge was required to follow the guideline unless satisfied that doing so would be contrary to the interests of justice. She gave undue weight to rehabilitation and delay. The offender was entitled to contest the charges, but could not realistically expect substantial mitigation for delay when he knew that the drugs were intended for supply. Punishment, deterrence and protection of the public carried considerable weight.

5. The court did not discourage leniency in an appropriate case. However, a suspended sentence was not a proper alternative to the substantial custodial sentence required here. No compelling reason showed that rehabilitation so outweighed the public interest in properly punishing serious drug supply as to justify the departure.

6. The court gave significant further credit for the offender’s compliance with the suspended sentence requirements and continued rehabilitation after sentence. Those matters reduced, but could not remove, the need for immediate custody. The offender was directed to surrender to Brighton Custody Centre by 4.00 pm.

• Court of Appeal (Criminal Division): Granted the Attorney General leave to refer the sentence, held it unduly lenient, quashed the suspended sentences and substituted a total of three years’ imprisonment.

• Crown Court at Lewes: On 2 November 2018, imposed concurrent suspended sentences with unpaid work, a curfew and rehabilitation activity requirements following guilty pleas to drug offences.