Ferreira, R. v

The Court of Appeal may review, under section 36 of the Criminal Justice Act 1988, a final sentence imposed after a period of deferred sentence has expired. That jurisdiction should be exercised sparingly in the interests of justice. A short deferment without specific requirements does not create a reasonable expectation that an unduly lenient sentence will not be corrected.

A suspended sentence is inappropriate where the seriousness of a significant role in street-level supply of Class A drugs requires a custodial term well above two years. Time served following recall for an earlier offence does not reduce the proper sentence for the new offences.

The Attorney General sought leave to refer as unduly lenient the sentence imposed on Lewis Ferreira at the Crown Court at St Albans.

Ferreira pleaded guilty to two conspiracies to supply Class A drugs and two substantive Class A drug-supply offences. He had controlled a county-lines operation, using a dedicated drugs telephone number and deploying local addicts to conduct street deals. The Crown Court deferred sentence briefly and then imposed concurrent terms of two years’ imprisonment, suspended for two years, without requirements.

The reference raised a preliminary question whether the Court of Appeal retained jurisdiction under section 36 of the Criminal Justice Act 1988 after the period of deferment had expired. On the merits, the issue was whether the suspended sentence was unduly lenient.

1. The Attorney General’s application was granted. The suspended sentence was quashed and replaced with four years’ imprisonment on each of the four drugs counts, to run concurrently.

2. The court had jurisdiction under section 36 of the Criminal Justice Act 1988. The statutory definition of sentence and the authorities established that an order deferring sentence is itself a sentence. More importantly, the final sentence imposed after the deferment plainly fell within section 36. Attorney-General's Reference No 22 of 1992 (R v Thomas) (1993) 14 Cr App R(S) 434 and Attorney General’s References Nos 36 and 38 of 1998 (R v Dean L and Jones) [1999] 2 Cr App R(S) 7 supported that conclusion. Although Attorney General’s Reference No 118 of 2004 (R v Barrett) [2004] EWCA Crim 3220 had left the precise jurisdictional issue open, it supported the need for prompt references and sparing exercise of the power.

3. The short intended period of deferment and absence of specified conditions meant that the offender could not reasonably expect that an unduly lenient final sentence would be immune from correction.

4. The sentence was so far below the minimum reasonably available that it was unduly lenient. The offender had at least a significant role in the street-level supply of heroin and crack cocaine. A custodial term well above two years was required, so a suspended sentence order was not available. Custody served after recall on licence punished the earlier offence and did not mitigate the appropriate sentence for the new offending. The sentences received by co-defendants did not determine whether this sentence was unduly lenient.

5. The court allowed for personal mitigation and for the increased distress caused by replacing a non-custodial sentence with immediate custody, consistently with Attorney-General's References Nos 14 and 15 of 2006 (R v Webster and French) [2006] EWCA Crim 1335. It set the minimum proper sentence at four years, rather than the four-and-a-half-year maximum indicated before the guilty pleas. The pandemic guidance in R v Manning [2020] EWCA Crim 592 could have had no significant part in sentencing such serious offending. Ferreira was directed to surrender to Newport Central police station by noon on 19 March 2021.

• Court of Appeal (Criminal Division): Attorney General’s reference allowed; the suspended sentence was quashed and replaced with concurrent terms totalling four years’ imprisonment ([2021] EWCA Crim 537).
• Crown Court at St Albans: On 18 January 2021, following a short deferral of sentence, imposed two years’ imprisonment on each drugs count, suspended for two years and without requirements.