R v Olgert Murataj

In sentencing for drug supply, the court must assess the guideline category and role, adjust for the actual quantity and mitigation, and apply full credit for a guilty plea. Where that exercise leaves a custodial term vanishingly small, the custody threshold is not reached and a community order should be imposed. Time already served may make a punishment requirement inappropriate, but a rehabilitation activity requirement may still be suitable. It is not normally appropriate to suspend a custodial sentence where time spent on remand would swallow the term if activated.

The appellant pleaded guilty in the Magistrates’ Court to possession of a Class B drug with intent to supply and was committed to the Crown Court for sentence. The Crown Court at Briston imposed six months’ imprisonment. The appellant had no previous convictions, admitted the offence in interview, expressed remorse and had already served the sentence by the time of the appeal. A pre-sentence report assessed him as low risk and proposed a community order. With leave, he appealed against sentence, arguing that the custody threshold was not reached and that the sentence should be replaced by a community order. The central issues were whether custody was justified and what requirements could properly accompany a substituted order.

The appeal was allowed to the limited extent stated below.

1. The single judge’s suggestion that the custodial sentence should have been suspended assumed that the custody threshold had been reached. In any event, with reference to R v Rakib [2012] 1 Cr App R (S) 1, the court noted that suspension is not normally appropriate where time already spent on remand would entirely swallow the custodial period if activated.
2. The six-month sentence implied a term of nine months before credit for the guilty plea. The significant mitigation, including previous good character, substantial delay, acceptance of guilt at the police station and remorse, was then considered. The definitive guideline indicated six months’ custody for six kilograms of cannabis and a culpability role on the cusp between significant and lesser. The actual quantity was only two kilograms, and full credit for the guilty plea also had to be given. The resulting custodial term would therefore be vanishingly small.
3. The custody threshold was not reached. A community order could and should have been imposed. In view of time already served, it would be wrong to impose a requirement for the purposes of punishment, but the rehabilitation activity requirement proposed in the pre-sentence report was appropriate, with reference to R v Coates [2023] 2 Cr App R (S) 4.
4. The six-month sentence was wrong in principle. It was quashed and replaced with a community order for 12 months, including a rehabilitation activity requirement lasting up to ten days. The appeal was allowed to that extent only.

• Court of Appeal (Criminal Division) — [2024] EWCA Crim 334: appeal against sentence allowed to the extent that the six-month custodial sentence was quashed and replaced by a 12-month community order with a rehabilitation activity requirement.
• Crown Court at Briston — on 11 December 2023, His Honour Judge Longman sentenced the appellant to six months’ imprisonment following his guilty plea.
• Magistrates’ Court — on 7 November 2022, the appellant pleaded guilty to possession of a Class B drug with intent to supply and was committed to the Crown Court for sentence.