R v Oleksandr Hranatyr

In sentencing a lesser-role offender for direct street supply of Class A drugs, the court must adjust the guideline starting point to reflect the actual quantity involved. A quantity far below the guideline’s indicative quantity requires a downward adjustment, followed by proper allowance for personal mitigation.

Immediate custody is highly likely for Class A drug supply but is not inevitable. Where a limited offender receives a custodial term, the court must conduct the balancing exercise required by the Imposition Guideline before deciding whether suspension is appropriate. An appellate court will ordinarily defer to that evaluative judgment, but may resentence where the judge failed to undertake it.

The applicant pleaded guilty to possession of Class A drugs with intent to supply and possession of criminal property. He had undertaken a short period of street dealing after responding to an advertisement for delivery work, having been given a car containing cocaine and cash. He had no previous convictions, had supplied only a small number of customers, and had substantial personal mitigation.

At the Crown Court at Guildford, he received two years’ immediate imprisonment for the drugs offence and six months’ concurrent imprisonment for the criminal-property offence. He appealed on the grounds that the judge had failed to adjust for the small quantity of drugs, give sufficient mitigation, and consider suspension under the Imposition Guideline.

1. Appeal allowed. The court quashed the two-year immediate custodial sentence for possession with intent to supply and substituted a term of 16 months’ imprisonment, suspended for two years from the original sentencing date. It also quashed the concurrent six-month sentence for possession of criminal property and imposed no separate penalty.

2. The sentencing judge correctly treated the applicant as having a lesser role. However, the relevant drug-supply guideline required an adjustment from its starting point by reference to quantity. The applicant possessed about seven grams of cocaine and the total quantity could not have been much more than 10 grams, compared with the guideline’s indicative quantity of 150 grams for Category 3 harm. A downward adjustment was therefore required.

3. There were no aggravating factors. The applicant’s lack of previous convictions, positive good character, remorse and isolated offending required a further reduction. The proper sentence before credit for the guilty plea was 24 months; a one-third reduction produced a term of 16 months.

4. Immediate custody for Class A drug supply is very likely, but it is not mandatory in every case. A sentencing judge dealing with limited involvement must consider suspension under the Imposition Guideline. Appellate interference with that balancing exercise is exceptional, but was justified here because the judge had undertaken no balancing exercise. Given the limited offending and strong mitigation, appropriate punishment did not require immediate custody.

5. The criminal-property offence fell in the lowest harm category and was closely connected with the drug offence. It added nothing to the applicant’s criminality. The immediate custodial sentence for that count was wrong in principle, and no separate penalty was appropriate.

• Court of Appeal (Criminal Division): Leave was granted and the sentence appeal was allowed. The court substituted a 16-month sentence suspended for two years for the drugs offence, and imposed no separate penalty for possession of criminal property: [2023] EWCA Crim 1684.
• Crown Court at Guildford: On 2 October 2023, the applicant was sentenced to two years’ immediate imprisonment for possession of Class A drugs with intent to supply, with six months’ concurrent imprisonment for possession of criminal property.