Introduction

This case is a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988 challenging the leniency of sentences imposed by the Crown Court at Ipswich. The offender had a long criminal history and, while subject to a suspended sentence for affray, committed multiple further offences—including driving with drugs over the limit, public order matters, shop theft, breach of a restraining order, and most significantly, being concerned in the supply of Class A drugs (cocaine). That Class A matter was his third drug trafficking conviction, prima facie engaging the statutory seven-year minimum in section 313 of the Sentencing Code.

In 2025, the sentencing judge imposed a global three-year community order with a GPS requirement and did not activate the earlier suspended sentence, imposing only a £1 nominal fine for the breach. The judge had earlier given a Goodyear indication that the minimum term would not be applied, citing (i) the indictment being confined to a single day with lesser role, (ii) a 12-year gap since the last trafficking offence, and (iii) exceptional personal mitigation following a 2023 near-fatal stabbing that left the offender with serious neurological impairment; he was also a key prosecution witness in an attempted murder trial.

The Solicitor General contended that the resulting community sentence was unduly lenient, that the minimum term should have applied or, if disapplied, that custody remained inevitable under the definitive guideline, and that the suspended sentence should have been activated, with totality addressed across the suite of offences.

The Court of Appeal (Singh LJ giving the judgment) accepted that the sentencing judge had a proper basis to disapply the statutory minimum as unjust in the particular circumstances. However, it held the non-custodial disposal to be unduly lenient, substituted a total of five years’ imprisonment on the lead Class A supply count, activated the 15‑month suspended sentence concurrently, varied the other sentences to short terms of custody (all concurrent), and increased the driving disqualification to five years and six months.

Summary of the Judgment

• Unduly lenient jurisdiction: The Court granted leave and found the community order to be unduly lenient (para 77), applying established principles for s36 references (Egan; AG Ref No 4 of 1989; AG Ref No 132 of 2001).
• Minimum term (s313 Sentencing Code): Although this was the offender’s third trafficking offence, the Court held the sentencing judge was entitled to conclude that imposing the statutory seven‑year minimum would be unjust on the facts (paras 55, 31–33). The Court did not reinstate the minimum.
• Guideline fidelity and custody: Even with the minimum disapplied, the court must still follow the definitive guideline for Class A supply; on these facts, only a custodial sentence was justified (paras 56–60). Post‑offence injuries/mitigation do not reduce culpability for the offence (para 57).
• Re-sentencing: Five years’ imprisonment on the lead count (count 1) of being concerned in supplying Class A (category 3, lesser role, uplifted for overall criminality and breach during SSO), with all other custodial terms concurrent (paras 61–71).
• Suspended sentence activation: The 15‑month suspended sentence for affray was activated in full but made concurrent because its breach was already accounted for in uplifting the lead sentence under totality (paras 62, 70).
• Ancillary orders: Driving disqualification increased to five years and six months, aligning with R v Needham by adding half the custodial term to the base disqualification (para 72). Statutory surcharge ordered (para 73).
• Committal technicality: Apparent committal irregularities did not invalidate sentence; if a lawful route to commit existed, the sentence stands (R v Webb; R v Butt and Jenkins; R v Bills) (paras 74–76).
• Order: The offender was directed to surrender to custody by noon the following day (paras 78–80).

Analysis

A. Precedents and Authorities Cited and Their Role

• Attorney General’s Reference No 17 of 1998 [1999] 1 Cr App R(S) 407: Reaffirmed that sentencing indications (now “Goodyear indications”) are not binding on the Court of Appeal in unduly lenient references (para 24). The CA thus assessed sentence afresh.
• R v Goodyear [2005] 2 Cr App R 20: Procedural backdrop for indications; the CA emphasised that any indication does not immunise a sentence from s36 scrutiny (para 24).
• Sentencing Council Guideline: “Supply of drugs” (Class A): The Court insisted on the stepwise approach—Step 1 (harm/role), Step 2 (aggravation/mitigation), Step 3 (minimum term consideration under s313) (paras 25–29, 32). The court treated the offence as Category 3 (direct to users) with lesser role and a three-year starting point after trial, range two to four and a half years (paras 26–28, 58).
• Section 313 Sentencing Code (third-strike minimum): The Court accepted the minimum was triggered (para 29) but that the judge could find it unjust to impose (paras 30–33, 55). The court referenced:
  • R v Woolfe [2019] EWCA Crim 2249; [2020] 2 Cr App R(S) 6: “Unjust” is fact-sensitive (para 30).
  • R v Clarke (Jewell) [2024] EWCA Crim 1555; [2025] 1 Cr App R (S) 44: Courts must apply Parliament’s law and avoid treating “perfectly normal” circumstances as “particular” to avoid the minimum; must follow guideline steps faithfully (paras 31–32).
  • AG’s Ref (R v Marland) [2018] EWCA Crim 1770: Passage of time alone is not enough to avoid the minimum (para 33).
• Section 59 Sentencing Code: Guidelines must be followed unless contrary to the interests of justice; the CA held that standard guideline application still led to custody (para 56).
• Breach of suspended sentence: Schedule 16 para 14 Sentencing Code requires activation unless unjust; guideline focuses on compliance and seriousness of breach. Multiple serious new offences committed soon after imposition usually mean full activation (paras 35–37). The CA activated the full 15 months, but made it concurrent to respect totality after uplifting the lead count (paras 62, 70).
• R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R(S) 28: Custody threshold principle—passing the threshold does not make custody inevitable; the CA nevertheless found custody plainly required on these facts (para 38, applied at paras 56–60).
• Unduly lenient references generally: AG’s Ref (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16; AG’s Ref No 4 of 1989; AG’s Ref No 132 of 2001: The ULS framework—deference to trial judge, intervention only for sentences outside the reasonable range, not borderline, and aimed at gross error (para 54). The CA invoked these in deciding to intervene.
• R v Needham [2016] EWCA Crim 455: Driving disqualification should account for time the offender will be in custody; the CA increased disqualification to base period plus half of the custodial term (para 72).
• Committal law: R v Webb [2024] EWCA Crim 1699; R v Butt and Jenkins [2023] EWCA Crim 1131; R v Bills [2025] EWCA Crim 794: Committal is lawful if a power to commit existed, even if the wrong statutory route was cited (paras 74–76).

B. The Court’s Legal Reasoning

The Court parsed the sentencing exercise into its constituent parts and applied the relevant statutory and guideline frameworks:

1. Minimum term analysis (Step 3): The case engaged the “third-strike” seven‑year minimum. Consistently with Woolfe and Clarke (Jewell), the CA emphasised that the “unjust” test is fact-sensitive and that routine features cannot justify disapplication. On the unusual facts—serious post-offence injuries producing lasting neurological disability; the offender’s status as a cooperating complainant in an attempted murder; a 12‑year gap to the prior trafficking offence; and changed post-attack behaviour—the Court held it was open to the judge to find the minimum unjust (para 55). Crucially, the CA accepted this without endorsing any departure from the stepwise guideline method or expanding “unjust.”
2. Guideline fidelity and sentence type: Having disapplied the minimum, the Court returned to the guideline’s structure. For a Category 3, lesser role Class A supply (single day as charged), the post-trial starting point is three years (range two to four-and-a-half). Aggravating features included the commission of the offence during a suspended sentence and the offender’s prior record; mitigating features included the post-offence injuries and progress towards rehabilitation. The CA stressed that post-offence injuries do not reduce culpability for the offence, though they may temper the length of the custodial term and require management in custody (para 57). It held that a community order was outside the reasonable range: in the face of the guideline, section 59 did not permit departure on “interests of justice” grounds (para 56).
3. Totality and structure of the overall sentence: Count 1 (Class A supply) was properly treated as the lead offence. The Court uplifted that count to five years to reflect the whole criminality and the fact of breach while on a suspended sentence (paras 59–61). It then activated the 15‑month suspended sentence in full—as the breach guideline and Schedule 16 ordinarily require—but made it concurrent, because the uplift to the lead count already captured the breach’s gravity (paras 62, 70). All other short custodial terms were also concurrent (paras 63–71). This sequencing delivers totality: a just and proportionate total sentence avoiding double-counting.
4. Ancillary orders and practicalities: Applying Needham, the Court extended the driving disqualification to five years and six months to reflect the custodial term (para 72). It ordered the surcharge (para 73) and directed surrender (paras 78–80). On committal technicalities, following Webb, Butt and Jenkins, and Bills, it confirmed that sentences are not invalidated where a lawful power to commit existed, even if the magistrates invoked the wrong route (paras 74–76).

C. Why the Crown Court’s approach was wrong in part

The Crown Court was entitled to disapply the minimum, but erred in transmuting that conclusion into a non-custodial outcome. The stepwise guideline requires first fixing harm and role, then adjusting for aggravation/mitigation, and only then asking whether the statutory minimum would be unjust. Disapplying the minimum simply returns the sentencer to the ordinary guideline calculus. Given the gravity of Class A dealing, the offender’s history, and the fact of offending while under a suspended sentence, a custodial sentence was plainly called for. The community order, even accompanied by GPS monitoring tailored to witness-management concerns, fell outside the reasonable range.

D. Impact and Significance

• Three-strike Class A cases: Howells clarifies that a finding of “unjust” under s313 does not open the door to community disposals. Sentencers must still apply the drug supply guideline with care; custody will ordinarily follow for Category 3 supply even at lesser role, subject to mitigation affecting length, not type.
• Post-offence hardship and cooperation: Serious post-offence injuries, disability, and cooperation with law enforcement are weighty mitigation. They may justify disapplying the minimum and reducing the term. But they do not reduce culpability at the time of the offence and will rarely justify avoiding custody for Class A supply.
• Totality with suspended sentences: The judgment models a principled approach: uplift the lead count to capture the breach and overall criminality, then activate the suspended sentence concurrently. This avoids double counting and secures a proportionate total term.
• Goodyear indications: An indication does not constrain the Court of Appeal on an unduly lenient reference and should not be treated as precluding a custodial outcome if the guideline demands it.
• Practical sentencing craft: The case underscores the importance of properly pleading “course of conduct” in concerned-in-supply counts, or the factual matrix at sentence may be confined to a single day, with consequences for role assessment.
• Ancillary orders during custody: Needham remains the touchstone for adjusting driving disqualification to reflect custodial time, ensuring the protective effect of disqualification is not diluted by incarceration.
• Committal defects: Continuing the Webb/Butt/Bills line, technical flaws in committal do not invalidate sentences if a lawful power existed.

Complex Concepts Simplified

• Section 36 reference (unduly lenient sentence): Allows the Law Officers to refer a sentence to the Court of Appeal if it falls outside the range a reasonable judge could impose. The Court intervenes sparingly, focusing on gross error or sentences plainly outside the range.
• Three‑strike minimum (s313 Sentencing Code): A statutory seven-year minimum for a third Class A trafficking offence, unless “in the particular circumstances” imposing it would be unjust. The “unjust” exception is narrow and fact‑sensitive; ordinary mitigation will not suffice.
• Stepwise guideline method: For drug supply, the court must determine harm (by supply type/scale) and role (leading, significant, lesser), then adjust for aggravating/mitigating features. Only then does it consider the statutory minimum (Step 3). Departures from the guideline are permitted only if following it would be contrary to the interests of justice (s59).
• Goodyear indication: A judge may indicate likely sentence on a guilty plea. It guides the defendant’s plea decision but does not bind the Court of Appeal on a s36 reference.
• Newton hearing: A procedure to resolve factual disputes relevant to sentence where a defendant pleads guilty but contests the prosecution’s version. Here, because the indictment was confined to a single day, the judge considered a Newton hearing would not cure the charge’s narrow particulars.
• Totality: The overall sentence must reflect the total criminality fairly. Courts may uplift a lead count and run other terms concurrently, or impose consecutive terms, to achieve a just and proportionate whole.
• Suspended sentence activation: If an offender commits further offences during a suspended term, the court must activate the suspended term unless unjust, focusing on compliance and the nature of new offending. “New and exceptional” post‑sentence factors are needed to avoid activation.
• Concurrent vs consecutive: Concurrent terms run at the same time; consecutive terms run back‑to‑back. The court chooses the structure that best reflects totality and avoids double counting.
• Driving disqualification post‑custody (Needham): Disqualification should often be extended by part of the custodial term so that the intended period off the road is meaningful despite time spent in prison.
• Committal for sentence validity: Even if magistrates cite the wrong power when committing a case to the Crown Court, the sentence is not invalid if a correct power existed (Webb; Butt and Jenkins; Bills).

Conclusion

Howells is a focused and practical restatement of sentencing orthodoxy in third‑strike Class A supply cases. It draws a clear line between two analytically distinct questions: (i) whether the statutory minimum is unjust on the particular facts; and (ii) what sentence the guideline then requires. The Court accepts that genuinely unusual, compelling circumstances—here, a catastrophic post‑offence assault causing lasting disability, long abstention from trafficking, and cooperation as a key prosecution witness—can justify disapplying the seven‑year minimum. But it emphatically holds that such a conclusion does not warrant a community order where the guideline points firmly to custody.

The judgment also offers an instructive template for totality: uplift the lead count to capture overall criminality and breach of a suspended sentence, then activate the suspended term concurrently to avoid double counting. Ancillary orders must be calibrated to the custodial term (Needham), and technical defects in committal will not derail otherwise lawful sentences (Webb/Butt/Bills).

The key takeaways are these:

• Disapplying the s313 minimum does not relax guideline fidelity; custody will ordinarily remain appropriate for Category 3 Class A supply, even for lesser role.
• Post‑offence hardship and cooperation mitigate length but not culpability and rarely justify non‑custodial disposal in serious drug supply cases.
• Suspended sentences should be activated unless unjust; totality can be achieved by uplifting the lead count and making activation concurrent.
• Goodyear indications do not insulate sentences from unduly lenient review.

In sum, Howells refines the practical application of Clarke (Jewell) and the drug supply guideline by confirming that the “unjust” exception to the third‑strike minimum is not a bypass around the ordinary custodial consequences of Class A supply. It will be a touchstone for future sentencing where severe post‑offence events intersect with serious drug offending and suspended sentence breaches.