R v Richard Butler

Whether to suspend a custodial sentence capable in law of suspension is primarily a matter for the sentencing judge. The Court of Appeal is a court of review and will rarely interfere where the judge has considered the relevant factors under the Sentencing Council Guideline and reached a non-irrational conclusion. Strong mitigation, rehabilitation prospects, absence of previous offending, delay and lack of ongoing danger may favour suspension, but do not compel it where immediate custody is otherwise appropriate. Serious drug supply may justify a deterrent sentence. Prison overcrowding may be relevant in exceptional circumstances, but it is only one factor and does not require suspension of every custodial sentence capable of suspension.

After pleading guilty to offences involving the supply of Class A, Class B and Class C drugs, the appellant was sentenced by the Crown Court at Kingston upon Thames to concurrent terms totalling two years’ immediate imprisonment. The appellant appealed by leave against sentence. The sole issue was whether the Recorder had erred in principle by refusing to suspend the custodial sentence, having regard to the appellant’s age, good character, rehabilitation prospects, delay, remorse and prison overcrowding.

1. Appeal dismissed. The Recorder had reduced the sentence substantially to reflect the appellant’s role, mitigation and delay before applying the guilty plea discount. The resulting two-year term was already below the normal sentencing range and represented a generous reduction.
2. The decision whether to suspend a sentence capable in law of suspension is primarily for the sentencing judge. The Court of Appeal is a court of review. It will rarely interfere where the judge has properly weighed the factors identified in the Sentencing Council Guideline on Imposition of Community and Custodial Sentences and reached a decision that is not irrational.
3. The appellant’s personal mitigation, good character, lack of previous offending, prospects of rehabilitation, absence of reoffending and lack of evidence of ongoing danger were factors favouring suspension. They did not make suspension compulsory. The Recorder was entitled to conclude that immediate custody remained the only appropriate sentence. The seriousness of supplying a variety of drugs, including several Class A drugs, justified a deterrent element.
4. R v Ali [2023] EWCA Crim 232 established that prison overcrowding may be relevant to suspension in exceptional circumstances. It did not establish an automatic rule that all legally suspendable custodial sentences should be suspended. Overcrowding had to be weighed with the mitigation and the seriousness of the offending.
5. The circumstances were not so exceptional that refusal to suspend amounted to an error of law or rendered the sentence manifestly excessive. The Recorder had neither failed to consider relevant matters nor reached a decision outside the range properly open to him.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed.
• Crown Court at Kingston upon Thames: The appellant was sentenced to concurrent terms totalling two years’ immediate imprisonment following guilty pleas.