R v Jaydah Luke-Smith

Where exceptional circumstances justify departing from a statutory minimum sentence, paragraph 14 of the sentencing guideline gives the judge a discretion. It does not require Table 2 to be used or make its range the starting point. The sentence must be appropriate to the individual case. Under the Sentencing Code 2020, the judge must explain the basis of sentence, including whether Table 2 was used and, if not, why. The breadth and variability of exceptional circumstances make general guidance inappropriate. The statutory-minimum starting points may nevertheless remain relevant. The Court of Appeal will intervene only where sentence is manifestly excessive or wrong in principle.

The appellant pleaded guilty in the Crown Court at Birmingham to possessing two prohibited firearms and ammunition. The firearms were loaded and had been left in a bag at her home. The Recorder found that she did not know the bag contained guns, but had suspicions because of her knowledge of the man who had left it there. He found exceptional circumstances, imposed a sentence below the statutory minimum, and sentenced her to two years’ immediate custody.

She appealed on the grounds that paragraph 14 of the sentencing guideline required the judge to use Table 2, and that the sentence should have been suspended. The central issues were the extent of the paragraph 14 discretion and whether immediate custody was wrong in principle.

1. Appeal dismissed. The sentence of two years’ imprisonment was not manifestly excessive, and the decision that it should be served immediately was not wrong in principle.
2. Paragraph 14 of the sentencing guideline is discretionary. It does not oblige a sentencing judge to refer to Table 2 or to use its range as the starting point. The only mandatory direction where exceptional circumstances are found is paragraph 13, requiring a custodial sentence shorter than the statutory minimum.
3. The court applied the approach in Otero [2023] EWCA Crim 981. A judge must explain the basis of the sentence under section 52(2) of the Sentencing Code 2020, including whether Table 2 was used and, if not, why. Whether Table 2 is appropriate depends on all the circumstances of the individual case. The range and variability of exceptional circumstances make it impossible to prescribe when Table 2 should or should not be used.
4. The Recorder was entitled to rely on the dangerousness of the loaded firearms and the heightened culpability as reasons for not applying the Table 2 range. His explanation was sufficient. Returning to the guideline starting point applicable where no exceptional circumstances existed was not erroneous, since those starting points remained relevant to the gravity of possessing a lethal firearm.
5. The Court of Appeal is a court of review and interferes with sentence only where it is manifestly excessive or wrong in principle. The Recorder had considered the relevant guideline and the appellant’s circumstances. His conclusion that appropriate punishment required immediate custody was a sentencing judgment with which the appellate court could not properly interfere.

• Court of Appeal (Criminal Division): granted leave to appeal but dismissed the appeal against sentence.
• Crown Court at Birmingham: following a Newton hearing, the Recorder found exceptional circumstances and imposed two years’ immediate custody.