R v Oris Tomney

When deciding whether particular circumstances make it unjust to impose a statutory minimum sentence, the court may consider the offender’s realistic prospect of rehabilitation and whether public protection would be better served by the proposed sentence than by immediate custody. A suspended sentence may therefore be justified where custody risks disrupting genuine rehabilitation, even though the resulting sentence is substantially below the custodial sentence otherwise appropriate. A sentencing judge who departs from the minimum should explain the particular circumstances in sufficient detail. An inadequate explanation may justify granting leave for a sentencing reference, but the reference will be dismissed where the sentence, viewed in context, is lenient but not unduly lenient.

The Solicitor General referred a sentence under section 36 of the Criminal Justice Act 1988 as allegedly unduly lenient. Following convictions at Portsmouth Crown Court for domestic burglary, possession of class A drugs with intent to supply and possession of a bladed article, the respondent received two years’ imprisonment suspended for two years, together with rehabilitative requirements. The prosecution argued that the three-year burglary minimum under section 314 applied and that the drug offending warranted a higher category. The sentencing judge considered the respondent’s long-term drug addiction, criminal record and recent progress in becoming drug-free. The central issue was whether departure from the minimum sentence and suspension of imprisonment made the sentence unduly lenient.

Reference dismissed. Leave to refer was granted because the sentencing judge’s explanation for finding it unjust to impose the statutory minimum was insufficiently detailed. The reference was nevertheless dismissed on its merits.

1. Under section 314 of the Sentencing Code, the court may find it unjust to impose the minimum term where particular circumstances relate to the offence or the offender. Relevant considerations include whether there is a realistic prospect of rehabilitation and whether the public would be better protected by the sentence imposed than by immediate custody.
2. The respondent had been a drug addict since his teens but had, by the age of 41, stopped taking drugs and engaged with treatment. The Court considered that this created a real prospect of rehabilitation. His previous custodial sentences had not stopped his offending, whereas the suspended sentence provided a strong incentive to remain drug-free and continue rehabilitation.
3. The sentencing judge was entitled to conclude that these circumstances made the three-year minimum unjust and that public protection was better served by the suspended sentence than by immediate imprisonment. The Court accepted that, absent the particular circumstances and related mitigation, an aggregate custodial sentence of about four and a half years would have been appropriate. The sentence was therefore lenient, but it was not unduly lenient.

The reference was dismissed, and the suspended sentence remained in force.

1. Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, leave was granted but the reference was dismissed: [2024] EWCA Crim 101.
2. Portsmouth Crown Court: The respondent was convicted and sentenced to two years’ imprisonment suspended for two years, with rehabilitative requirements.