R v Subhaan Nazir

On a reference of an allegedly unduly lenient sentence, the Court of Appeal must decide whether the sentence fell outside the range reasonably open to the sentencing judge, applying the relevant Sentencing Council guideline. Guidelines should not be applied mechanically, but consistency is important and any departure from the starting point requires justification. The culpability range remains flexible. Factors not expressly listed may increase culpability where the guideline is non-exhaustive. The appellate court must respect the trial judge’s assessment while scrutinising unexplained reductions and ensuring that aggravating and mitigating factors are not double counted.

The Solicitor General referred a sentence imposed on Subhaan Nazir under section 36 of the Criminal Justice Act 1988. The respondent had been convicted of two counts of possessing class A drugs with intent to supply. The sentencing judge treated the offending as involving a significant role, reduced the guideline starting point, allowed for aggravating factors, and imposed concurrent sentences of three years’ imprisonment.

The reference raised whether the sentence was unduly lenient because the starting point and subsequent adjustments did not adequately reflect the respondent’s culpability, previous similar conviction, offending on licence, sophisticated concealment, use of a drugs line, age and alleged immaturity.

1. The reference was allowed. The concurrent sentences of three years’ imprisonment were quashed and concurrent sentences of five years’ imprisonment were substituted.
2. Under section 36 of the Criminal Justice Act 1988, the question was whether the sentence fell outside the range reasonably open to the sentencing judge. The approach in Attorney General’s Reference (No. 4 of 1989) [1991] WLR 41 remained applicable, subject to reference to the relevant Sentencing Council guideline.
3. The guideline was not to be applied mechanically. Its category range allowed a nuanced approach, but consistency was an important statutory purpose and a departure from the starting point required justification. The sentencing judge gave no adequate reason for reducing the four years and six months starting point applicable to significant-role street dealing.
4. The culpability factors were expressly non-exhaustive. Use of a drugs line increased culpability, even if the telephone might have belonged to the co-offender, because the offending involved a joint operation. The magnetic box showed sophistication and an attempt to avoid detection. These matters, together with the previous similar conviction and offending on licence, warranted more weight, subject to avoiding double counting.
5. The least sentence before mitigation should have been five years and six months. The respondent’s age was relevant, but, given his history, mitigation for age and immaturity should have been modest. The trial judge’s assessment was respected, but her unexplained conclusion on maturity was inconsistent with the nature of the offending and the respondent’s immediate reaction to approaching drugs officers. A reduction of six months, and no more, was justified.

• Court of Appeal (Criminal Division): on a reference under section 36 of the Criminal Justice Act 1988, the court found the sentence unduly lenient, quashed the concurrent three-year sentences and substituted concurrent five-year sentences.