R v Michael Harvey

Small quantity and low value do not determine sentence in isolation for possession of a class A drug. The offender’s previous convictions may be considered as a whole when deciding whether the custody threshold is crossed. A custodial term is permissible where the offending record justifies it and the term falls within the applicable guideline range. Time spent subject to a qualifying curfew does not require a reduction where the custodial term is independently justified. The court upheld a four-week sentence, reflecting a six-week term before full one-third credit for the guilty plea.

The appellant pleaded guilty to possessing cocaine, contrary to section 5(2) of the Misuse of Drugs Act 1971. On 10 November 2022, Ms Recorder Presland sentenced him to four weeks’ imprisonment, treated as time served. He appealed, arguing that the quantity and value of the drug were low, the custody threshold was not passed, and his guilty plea, rehabilitation efforts and 219 days subject to qualifying curfew and electronic monitoring justified a shorter sentence. The central issue was whether the sentence was excessive.

Appeal dismissed. The sentence imposed below was within the proper sentencing range and disclosed no legitimate error.

1. Guideline range and custody threshold. The relevant starting point under the Sentencing Council Guideline for Drug Offences was a Band C fine, with a range extending from a Band A fine to 51 weeks’ custody. The small quantity and low value of the cocaine did not prevent the custody threshold being crossed. The sentencing judge was entitled to consider the appellant’s offending record as a whole, including multiple previous drug offences and other serious offending.
2. Custodial term and guilty plea. The judge was entitled to identify six weeks’ imprisonment as the sentence that would have been imposed after trial. Applying full one-third credit for the guilty plea produced a four-week term. That term was well within the applicable guideline range.
3. Qualifying curfew. The judge reached the custodial assessment independently of the appellant’s time subject to a qualifying curfew and electronic monitoring. The fact that 109 days were ordered to count towards the sentence under the Sentencing Act 2020 did not require a shorter custodial term where the term was independently justified by the appellant’s record.
4. The absence of a pre-sentence report was not criticised. The appeal was dismissed.

• Court of Appeal (Criminal Division): On 15 March 2023, dismissed the appeal against sentence: [2023] EWCA Crim 406.
• Sentencing court: On 10 November 2022, Ms Recorder Presland imposed four weeks’ imprisonment following the appellant’s guilty plea.