R v Rayon Wheatley

In sentencing appeals, an error in selecting the guideline starting point for a concurrent lesser count does not necessarily invalidate the overall sentence. The court must consider totality and determine whether an uplift or adjustment is needed to reflect the offender’s overall criminality. The error may be immaterial where the lead sentence already determines the overall term and no additional uplift was made.

Evidence of steps taken to address addiction or offending behaviour may amount to personal mitigation, but the sentencing judge may attach little weight to limited evidence, particularly where the offender has recently committed similar offences. An appellate court may activate an overlooked suspended sentence, provided the resulting sentence is no more severe than that imposed below.

The appellant pleaded guilty in the Crown Court at Woolwich to conspiracies to supply cocaine and cannabis and to possessing criminal property. He was sentenced to concurrent terms of 63 months, 36 months and 14 months’ imprisonment.

He appealed against sentence, arguing that the judge had used an excessive starting point for the cannabis conspiracy and had failed to give sufficient weight to personal mitigation, including his conduct in custody and steps addressing addiction. The Criminal Appeal Office also identified an earlier suspended sentence which had not been addressed. The central issues were whether the sentencing errors made the overall sentence manifestly excessive and what order should be made concerning the suspended sentence.

Appeal dismissed. The court accepted that the Recorder appeared to have applied the starting point and range appropriate to a leading role, although he had found that the appellant’s role was significant. That was an error in relation to the cannabis conspiracy.

It did not, however, make the overall sentence incorrect. The sentence for that count was concurrent with the substantially longer sentence for the cocaine conspiracy. The lead count had properly been placed at the upper end of the applicable range, producing a notional sentence of 84 months before the 25 per cent guilty plea reduction and a sentence of 63 months.

The court explained that totality requires the sentencing judge to consider the overall criminality arising from multiple counts. Any necessary adjustment may be made by uplifting the lead sentence or aggravating the individual concurrent sentences. The sentence for a lesser offence may affect the level of uplift. Here, the sentencing remarks showed that the Recorder had imposed separate concurrent sentences and had not considered whether an uplift to the lead sentence was required. That omission meant that the count 2 error had not produced a longer sentence than would otherwise have been imposed.

The Recorder was entitled to treat the appellant’s recent similar offending as a serious aggravating feature. Evidence of determination or steps taken to address addiction or offending behaviour could provide personal mitigation, but the evidence was limited and related in part to a period before the index offending. Any reduction would have been very small and likely offset by a proper totality adjustment. The sentence was therefore not manifestly excessive.

Finally, the court activated the 12-month suspended sentence imposed for dangerous driving on 12 April 2021, from 9 February 2023, concurrently with the other sentences. The overall term of 63 months remained unchanged because the appellate court could not deal with the appellant more severely than the court below.

• Crown Court at Woolwich: The appellant pleaded guilty and was sentenced on 9 February 2023 to concurrent terms of 63 months, 36 months and 14 months’ imprisonment.
• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. The court activated the earlier suspended sentence concurrently, leaving the overall sentence unchanged.