R v Nassir Andre David Mir

A sentence is unduly lenient only if it falls outside the range reasonably open to the sentencing judge, and intervention remains exceptional. However, sentencing courts must follow applicable definitive guidelines unless justice requires otherwise.

A court cannot evade the statutory maximum for a suspended custodial sentence by imposing a community order which effectively operates as a longer suspended sentence. Where the seriousness of drug supply offending and its aggravating features make immediate custody the only suitable disposal, rehabilitation and substantial mitigation cannot justify a community order.

The Solicitor General referred the offender’s sentences under section 36 of the Criminal Justice Act 1988. The offender had pleaded guilty to two offences of being concerned in the supply of Class A drugs and to breaching a Criminal Behaviour Order.

The Crown Court imposed a three-year community order, although the sentencing judge assessed the appropriate custodial terms as three years for each drugs offence and one year for the order breach, concurrently. The reference also raised procedural questions about the Crown Court’s sentencing powers following committal and remittal between the magistrates’ court and Crown Court.

1. The reference was allowed. The community order was unduly lenient. The court granted leave under section 36 of the Criminal Justice Act 1988, applied the established exceptional-error threshold, and held that the offending could properly attract no sentence other than immediate imprisonment.

2. The court confirmed that a committal under section 18 of the Sentencing Act 2020 was valid despite the absence of a section 18(4) statement. Section 21(5) initially limited the Crown Court to magistrates’ sentencing powers. The Recorder could remit the case under section 25A(2), and the judge could sit as a magistrate under section 66 of the Courts Act 2003, make the requisite section 14 finding, and return the case to the Crown Court with its full sentencing powers.

3. Section 59(1) of the Sentencing Act 2020 required the sentencing judge to follow the relevant definitive guidelines unless contrary to the interests of justice. The court followed R v Hartland, [2023] EWCA Crim 790, holding that it was wrong in principle to circumvent the 24-month statutory limit on a suspended custodial sentence by imposing a community order which effectively preserved a three-year custodial term on breach.

4. The judge’s own assessment showed that the offences passed the custodial threshold by a substantial margin. The aggravating features, including similar previous offending, offending while on licence, prolonged drug supply, and breach of the Criminal Behaviour Order, made a community order unsuitable. Mitigation and rehabilitation justified reducing the custodial term but not replacing custody with a community disposal.

5. The court considered, but declined, to exercise its discretion to leave the unduly lenient sentence undisturbed. It quashed the community order and substituted concurrent sentences of three years’ imprisonment for the drugs offences and one year for the order breach. The total sentence was three years’ imprisonment, subject to credit for 308 days spent on remand.

• Court of Appeal (Criminal Division) — by [2024] EWCA Crim 239, granted leave on the Solicitor General’s reference, found the community order unduly lenient, quashed it, and imposed an immediate total sentence of three years’ imprisonment.

• Crown Court — on 13 December 2023, imposed a three-year community order with rehabilitation activity and unpaid-work requirements.

• Magistrates’ Court — the offender indicated guilty pleas to the two drug-supply offences. The offences were committed and later remitted during an unusual procedural sequence before sentence was ultimately imposed in the Crown Court.