R v Erjon Xhaferi

When sentencing within a guideline range, the court must assess the actual scale and features of the offending. An aggravating feature can justify an increase only to the extent that it has not already been reflected in the offence category.

A substantial uplift cannot rest on a speculative aggravating circumstance unsupported by evidence. Significant personal mitigation, including youth, lack of maturity, good character and remorse, must be given appropriate weight and may exert substantial downward pressure on sentence.

The appellant pleaded guilty to producing cannabis on a commercial scale. About 100 plants were found at a house where he had acted as a gardener for approximately three months. He had no previous convictions or cautions in the United Kingdom.

At the Crown Court at Isleworth, the judge placed the offence in harm category 2 and found that the appellant had a lesser role. She imposed 22 months’ imprisonment for the production offence, together with a consecutive one-month sentence for failure to surrender.

The appeal, brought with the leave of the single judge, challenged only the 22-month production sentence. The central issue was whether the judge had placed the case too high within the applicable guideline range and had insufficiently weighed the appellant’s role and mitigation.

1. The appeal was allowed. The court quashed the 22-month sentence for the production offence and substituted 16 months’ imprisonment. The separate consecutive sentence for failure to surrender was not challenged.
2. The judge had correctly selected harm category 2 and the lesser-role starting point of 12 months. However, the commercial operation, although substantial and above the category 3 starting point, was well short of the upper end of category 2. The appellant’s role did not justify an uplift from the starting point.
3. The ongoing nature of the operation was a valid aggravating feature, but only insofar as it had not already been reflected in the chosen offence category. The possibility of unlawful access to utility supplies was unsupported by evidence beyond the intelligence which prompted the police visit. It could not soundly justify any substantial increase, particularly where the appellant was not said to have established the operation or known of any unlawful abstraction of power.
4. The appellant was relatively young, said to lack maturity, of previous good character and remorseful. These were significant personal mitigating features identified by the guideline. Although the judge stated that she had considered all the circumstances, the absence of express reference to those matters showed that they had not received appropriate weight.
5. The scale and duration of the operation justified an uplift from the starting point, but there were no other aggravating features of weight. Proper weight for the personal mitigation required a materially lower sentence.

• Court of Appeal (Criminal Division) Allowed the sentence appeal, quashed the 22-month sentence for producing a controlled drug, and substituted 16 months’ imprisonment: [2024] EWCA Crim 1039.
• Crown Court at Isleworth On 18 June 2024, imposed 22 months’ imprisonment for producing a controlled drug and one month consecutively for failure to surrender.