R v Malik Douglas

A statutory minimum sentence for possession of a prohibited firearm cannot be reduced to reflect a guilty plea unless exceptional circumstances relating to the offence or offender justify a departure. An appellate court may correct an unlawful sentence by restructuring individual terms, provided that Criminal Appeal Act 1968, section 11(3), does not permit an increase in the total sentence.

Under the totality guideline, consecutive sentences may properly recognise distinct drug-dealing and firearms criminality. The resulting aggregate sentence must nevertheless remain proportionate.

The appellant pleaded guilty at the Crown Court at Wood Green to possessing a prohibited firearm, possessing Class B cannabis with intent to supply, and possessing criminal property. On 23 June 2023, the Recorder imposed four years and six months for the firearm, 27 months consecutively for the drugs offence, and six months concurrently for criminal property: a total of six years and nine months.

The appellant challenged the firearm sentence as unlawful, the starting point for the drugs sentence, and the consecutive structure. The central issue was whether the individual sentences could be corrected while preserving the total sentence and complying with the statutory minimum.

1. The court granted an extension of time and leave to appeal. It allowed the appeal in part.

2. The sentence of four years and six months for possession of the prohibited firearm was unlawful. Sentencing Act 2020, section 311 required a minimum term of five years unless exceptional circumstances justified a lesser term. No such finding was made. Credit for a guilty plea could not reduce the statutory minimum.

3. Section 11(3) of the Criminal Appeal Act 1968 prevented the court from increasing the overall sentence. It nevertheless permitted the court to restructure the component sentences so as to correct the unlawful firearms term while leaving the aggregate term unchanged.

4. The 27-month sentence for the drugs offence was individually appropriate. The Recorder was entitled to sentence at the top of the applicable range because of the appellant’s eight relevant previous convictions. A consecutive sentence was also justified: the drugs and firearms offences represented distinct criminality requiring separate recognition under the totality guideline.

5. Having considered totality, the court held that 21 months for the separate drugs offending, consecutive to the five-year firearm term, remained proportionate. The firearm sentence was increased to five years and the drugs sentence reduced to 21 months. The total sentence therefore remained six years and nine months.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1476, the court allowed the sentence appeal in part. It corrected the unlawful firearm sentence and reduced the consecutive drugs sentence so that the total term remained unchanged.

• Crown Court at Wood Green: The appellant pleaded guilty on 26 May 2023 and was sentenced on 23 June 2023 to an overall term of six years and nine months’ imprisonment.