Remand Time Cannot Be Used to “Engineer” a Suspended Sentence; “Moderate” Custody Can Extend to Four Years in Exceptional Mitigation

1. Introduction

This Solicitor General’s Reference concerned nine sentences imposed for participation in an organised crime group supplying cocaine (Class A) and ketamine/cannabis (Class B) into North Wales (July–December 2024), including cannabis cultivation. Substantial quantities were seized at the operation’s end, but the Court of Appeal emphasised that end-of-conspiracy seizures are not a proxy for the quantity actually supplied during the conspiracy.

The Reference raised three core issues:

• Harm categorisation for Class A conspiracy: whether the sentencing judge erred by treating the conspiracy as at the bottom end of Category 1 (influenced by the seized quantity) rather than applying Category 1 starting points straightforwardly.
• Concurrent sentencing and totality: whether significant Class B conspiracies were effectively left unpunished by being made concurrent with an already-reduced Class A lead sentence.
• Remand time and suspension/community disposal: whether the judge impermissibly reduced custodial terms by time on remand in order to make sentences suspendable; and whether a community order could properly replace a custodial term assessed at four years where there was exceptional mitigation and strong rehabilitation prospects.

2. Summary of the Judgment

The Court of Appeal:

• Granted leave to refer all nine sentences.
• Found undue leniency in the immediate custodial sentences for three Class A conspirators, quashed the sentences on the Class A lead count, and substituted higher terms.
• Held the sentencing approach wrong in principle where the judge reduced sentence length by deducting time on remand to reach a suspendable term; however, exercised discretion not to alter the resulting suspended sentences/community disposals for five offenders (including one with an offence involving permitting premises), despite identifying error.
• Approved the community order imposed on the lesser-role Class A offender (not unduly lenient), endorsing the use of the “moderate sentence” rubric in an exceptional case even where the notional custodial term was four years.

2.1 Disposals (headline)

• Leader: substituted sentence on the Class A conspiracy count to yield a total of 10 years 8 months’ imprisonment (after guilty plea credit).
• Deputy/manager: substituted sentence on the Class A conspiracy count to 7 years 4 months’ imprisonment (after guilty plea credit).
• Significant manager: substituted sentence on the Class A conspiracy count to 9 years’ imprisonment (after guilty plea credit).
• Lesser-role offender (community disposal): community order upheld; not unduly lenient.
• Other Class B offenders (and one offender convicted of permitting premises for Class A supply): sentences criticised as wrong in principle on remand/suspension methodology but left unchanged in the exercise of the court’s discretion.

3. Analysis

3.1 Precedents Cited

(a) R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R(S) 28

White was relied on in two distinct ways:

• What White decided: the court accepted that a sentence “at or around three years’ imprisonment” could fall within the rubric “a short or moderate length custodial sentence”, such that (where guidelines permit) a community order may be a proper alternative.
• How it was argued here: the Solicitor General submitted that White effectively marked the upper end of “moderate” (around three years), so that a four-year term could not be “moderate”.
• How it influenced the outcome: the Court of Appeal rejected a hard ceiling. It treated the phrase as deliberately undefined and held that, in an exceptional case, the “moderate” rubric may apply even where the notional custodial term is four years—but only where there is exceptional mitigation and exceptionally high prospects of rehabilitation, and the offence-specific guideline context supports the approach.

(b) R v Petherick [2012] EWCA Crim 2214; [2013] 1 Cr App R(S) 116

Petherick supplied the governing framework for sentencing where a defendant has primary caring responsibilities. The Court of Appeal applied those principles to a drug conspiracy context, stressing:

• Children affected by sentencing are blameless and their welfare is a mandatory consideration.
• Where immediate custody is unavoidable and lengthy, the child’s interests may carry less weight (because alternative care arrangements must in any event be made).
• Where a non-custodial disposal is realistically available, the court should give significant weight to avoiding unnecessary harm to the child.

In this case, the court considered that the caring-responsibility factor, combined with exploitation by a family member, reluctance to offend, ill-health, remorse, and rehabilitation, justified the exceptional community disposal.

(c) Sentencing Council guidance: “Time remanded in custody… before imposing a suspended sentence order”

This was central to the court’s finding of error of principle: the judge’s “bespoke” method of reducing the custodial term to make it suspendable was contrary to express guideline instruction.

3.2 Legal Reasoning

(1) Drug quantity and harm categorisation in conspiracies

The sentencing judge’s harm assessment for the Class A conspiracy was strongly influenced by the 1.352 kg recovered at the end of the operation. The Court of Appeal held that this was an unrealistic inference because:

• End-of-conspiracy seizures commonly represent unsold stock, not the full scale of distribution over months.
• The operation’s sophistication (safe houses, processing, laundering via a legitimate business front, transport of cash) strongly supported the inference that substantial supply had occurred.
• The court concluded it could not safely fix a figure “substantially more than 5 kilograms”, but equally there was no sound basis for treating the quantity as very much less: the fair approach was to sentence as a Category 1 conspiracy applying the relevant starting points by role.

(2) Totality and concurrency: ensuring Class B conspiracies are punished

The court accepted that, where Class A is the lead offence, concurrency may often be appropriate. However, it held that in this case concurrency, combined with an already-too-low Class A sentence, meant serious Class B conspiracies were “simply not punished at all”. The corrective approach was not necessarily to make terms consecutive, but to ensure the lead term properly reflected:

• the correct harm category and role; and
• the additional criminality (multi-drug trafficking and associated conspiracies) within a proper totality evaluation.

(3) Remand time and suspended sentences: a clear prohibition on “discounting down” the term

The Court of Appeal held it was “clearly erroneous” to reduce the pre-plea custodial term by reference to time spent on remand so as to arrive at a sentence short enough to be suspended. The court stated this “should not be done in future”, treating it as a principled error justifying intervention in an unduly lenient sentence reference.

Notably, despite that finding, the court exercised restraint and declined to increase the suspended sentences in several cases, reflecting:

• the Reference jurisdiction’s discretionary nature (aimed at correcting sentences “far too low”);
• case-specific justice (including the relatively modest practical difference given remand credit and near release points); and
• the particular mitigation of certain offenders, while making clear they were “extremely fortunate”.

(4) “Moderate length custodial sentence” and the boundary of community alternatives

A key point of wider significance is the court’s refusal to define “moderate” as capped at three years. The court reasoned:

• The guideline intentionally leaves “short or moderate” undefined and states such sentences “may exceed two years’ custody”.
• Parliament’s two-year statutory ceiling on suspending sentences strongly indicates that, generally, sentences above two years are expected to be immediate; therefore, using a community alternative for longer notional terms should be rare.
• Accordingly, before treating a four-year notional custodial term as “moderate” for this purpose, the court should require exceptional mitigation and exceptionally high rehabilitation prospects.

On the facts, the lesser-role offender’s reluctance, financial exploitation by a family member, serious ill-health, genuine rehabilitation, and—critically—primary care of a young child engaged Petherick and justified the exceptional community disposal.

3.3 Impact

• Conspiracy harm assessment: sentencing courts should be cautious about equating seized end-stock with the scale of supply; sophisticated operations over months will ordinarily justify inferences of significant distribution, affecting guideline category selection.
• Totality in multi-drug conspiracies: where multiple conspiracies are charged, concurrency is not a “free pass”; the overall sentence must reflect the full criminality, whether by uplift of the lead sentence or (where appropriate) consecutive terms.
• Suspended sentences and remand: the decision provides a clear appellate warning: do not reduce the custodial term to be suspended by deducting remand time. The correct approach is to set the term independently and explain remand deduction upon activation.
• Community alternatives for longer notional custody: the court confirms that “moderate” can extend beyond three years, potentially to four, but only in exceptional cases—particularly where caring responsibilities (per Petherick) and strong rehabilitation evidence justify departure from immediate custody.
• Attorney General/Solicitor General References: even where an error of principle is found, the Court of Appeal may leave sentences undisturbed to achieve case-specific justice—while still correcting the law for future sentencing.

4. Complex Concepts Simplified

• Unduly lenient sentence: a sentence so low it falls outside the range reasonably open to the sentencing judge, permitting the Court of Appeal to increase it on a Reference.
• Guideline “category” and “role”: drug guidelines combine (i) harm (often driven by quantity/scale) and (ii) culpability (leading/significant/lesser role) to generate a starting point and range.
• Concurrent vs consecutive: concurrent sentences run at the same time; consecutive sentences stack. Even with concurrency, the total must reflect overall criminality (the “totality” principle).
• Suspended sentence order (SSO): a custodial term imposed but not immediately served unless breached; generally only available up to two years’ custody.
• Remand credit: time spent in custody before sentence is automatically credited against any eventual activated custodial term; it is not a tool to reduce the nominal term to make it suspendable.
• “Moderate” custodial sentence (guideline rubric): an undefined band in which, for some offence types and exceptional cases, a community order may replace custody; this judgment confirms it may extend to four years in rare circumstances.

5. Conclusion

Kiernan & Ors, R. v [2026] EWCA Crim 492 clarifies three sentencing propositions of practical importance. First, in drug conspiracies, end-of-operation seizures should not drive harm categorisation where the evidence points to sustained, sophisticated supply. Second, time on remand must not be used to reduce custodial terms to make them suspendable; the guideline prohibits that approach and the Court of Appeal states it should not occur in future. Third, while community alternatives to custody remain exceptional where notional terms exceed two years, the court confirms that “moderate” can extend to a four-year term where mitigation and rehabilitation are exceptional and caring responsibilities (per R v Petherick) strongly justify avoiding immediate custody.