Factual and Procedural Background
This is an application by the Attorney Husbands, under section 36 of the Criminal Justice Act 1988, for leave to refer sentences on the ground that they were unduly lenient.
The Defendant was previously sentenced in 2022 by Judge Levett at the Crown Court to a 15‑month imprisonment term suspended for two years for affray. During the period of that suspended sentence the Defendant committed multiple offences across three arrests between 7 March 2022 and 7 May 2023. Those matters included driving with drugs in excess of the limit, refusing to provide a blood specimen, driving with a child without an appropriate seat, possession and production of Class B substances, being concerned in the supply of a Class A drug (cocaine), abusive behaviour towards police, and shoplifting. The Defendant was committed to the Crown Court for sentence on these matters, and was also sent for trial and later pleaded guilty to being concerned in the supply of Class A drug (a third drug trafficking conviction which engaged statutory minimum sentence provisions unless exceptions applied).
On 20 June 2025 Judge Levett sentenced the Defendant to a three year community order with a 25‑day rehabilitation activity requirement and GPS monitoring for 18 months. A nominal £1 fine was imposed for breach of the suspended sentence order; the underlying suspended custodial sentence was not activated.
The Defendant had been the victim of a serious assault on 22 September 2023 (stabbed several times, including to the eye; skull fractures and ongoing cognitive/neurological issues). He is a complainant and expected witness in a forthcoming attempted murder trial due in 2026. The sentencing court received expert reports (neuropsychology and psychiatric), supervision reports and a pre‑sentence report commenting on longstanding drug addiction, a marked change in engagement since the assault, and memory/cognitive issues.
The Attorney Husbands sought leave to refer the sentences as unduly lenient. The Court reviewed sentencing practice, statutory guidance and the application of the minimum term provisions for a third drug trafficking offence, and considered whether the community order and failure to activate the suspended sentence were unduly lenient.
Legal Issues Presented
- Whether leave should be granted under section 36 of the Criminal Justice Act 1988 to refer the sentences on the ground that they were unduly lenient.
- Whether the sentencing judge erred in law by not imposing the statutory minimum sentence for a third drug trafficking offence (section 313 of the Sentencing Code) or otherwise misapplying the Sentencing Council guideline process.
- Whether, even if the statutory minimum term was unjust in the particular circumstances, the ultimate disposal (a three year community order) was unduly lenient given the overall offending, including the fact many offences occurred during the currency of a suspended sentence order.
- Whether the suspended sentence order should have been activated (Schedule 16 paragraph 14 of the Sentencing Code and the guideline on breaches of suspended sentence orders).
- Whether the principle of totality was misapplied when arriving at the concurrent community order and nominal activation penalty.
- Whether the committals from the Magistrates' Court to the Crown Court (for sentence) were lawfully made.
Arguments of the Parties
Attorney Husbands (on behalf of the Solicitor General)
- The sentencing judge did not apply the Sentencing Council guideline correctly in assessing the applicability of the minimum term for a third drug trafficking offence; the factors relied on did not amount to circumstances making imposition of the minimum term unjust.
- If the minimum term was unjust, the offending remained so serious that neither a fine nor a community sentence could be justified; a custodial sentence was required by section 230 of the Sentencing Code.
- The judge misapplied the principle of totality: having assessed the drugs offending, the judge should then have considered activation of the suspended sentence and imposed a near‑full term in addition to the sentence for the drugs offences, with appropriate adjustments for guilty pleas and totality.
- The judge incorrectly described the applicable test at the indication hearing as “exceptional circumstances” rather than the statutory test that imposition of the minimum term would be unjust.
- The factors relied on by the judge (serious assault occurring after the offences, the 12 year lapse since earlier trafficking offending, mitigation including neurological impairment) should have been addressed within the stepped guideline process (at step 2) and then by any adjustment at step 3, rather than displacing the minimum term without appropriate guideline analysis.
- On the breach of the suspended sentence order, the starting point for that breach was 15 months’ imprisonment and should have been activated given the seriousness and timing of the new offences.
Attorney Dyble (on behalf of the Defendant)
- The sentence was not unduly lenient. Judge Levett was experienced and familiar with the case history and future implications (including the Defendant’s role as an expected witness in a forthcoming attempted murder trial).
- The judge was entitled to find it unjust to impose the statutory minimum term and to decline activation of the suspended sentence given the particular circumstances: the very serious assault on the Defendant after the offences, resulting disabilities and cognitive impairment, the change in behaviour and improved engagement with probation and services, and the lapse in offending history prior to the triggering offence.
- The judge was entitled to treat the pleaded drugs count as limited to a single day with a lesser role and to give weight to mitigation (including neurological impairment) and to practical concerns about the Defendant’s welfare and safety in custody while he is a witness at an upcoming trial.
- The overall disposition (community order with GPS, rehabilitation requirements and a nominal fine) was a reasonable exercise of sentencing discretion and not a case for interference under section 36.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Goodyear [2005] 2 Cr App R 20 |
Procedure for sentencing indications and related practice (indication procedure). |
Referenced to explain the indication sought and the sentencing judge’s indication at interlocutory stage; noted that this procedure has been endorsed and sits alongside the Criminal Procedure Rules. |
| Attorney General's Reference No 17 of 1998 [1999] 1 Cr App R (S) 407 |
Proposition that the appellate court is not bound by an indication given by a sentencing court. |
Invoked to remind that this court is not bound by any indication given at first instance. |
| R v Clarke (Jewell) [2024] EWCA Crim 1555; [2025] 1 Cr App R (S) 44 |
Warning that courts must apply Parliament's enacted law and not treat normal circumstances as "particular circumstances" to avoid statutory minimums; requirement to follow guideline steps. |
Relied upon to stress the correct approach to the minimum term provisions and to caution against treating ordinary circumstances as qualifying for exception from minimum term. |
| R v Woolfe [2019] EWCA Crim 2249; [2020] 2 Cr App R (S) 6 |
The question whether particular circumstances make imposition of a minimum term unjust is fact-sensitive. |
Cited for the proposition that the determination of whether minimum term imposition would be unjust depends on the facts of the case. |
| R v Marland [2018] EWCA Crim 1770 |
Passage of time alone is not necessarily sufficient to avoid imposition of a statutory minimum sentence. |
Referenced to show that significant weight given to lapse of time between qualifying offences was insufficient in that case to avoid minimum term. |
| R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R (S) 28 |
Caution that passing the custody threshold does not make custody inevitable. |
Used to remind that even when custody threshold is crossed other disposals may be appropriate depending on circumstances. |
| Attorney General's Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R (S) 16 |
Summarises principles governing references under section 36 (role of sentencing judge, what constitutes unduly lenient sentence, exceptional circumstances for leave). |
Quoted to set out the limited role of this court on a section 36 reference and the principles to apply when determining whether a sentence is unduly lenient. |
| Attorney General's Reference No 4 of 1989 (1990) 90 Cr App R 366 |
One of the seminal authorities on the appellate court's role in section 36 references. |
Relied upon (via summary in Egan) to underline the limited scope for intervention on sentence. |
| Attorney General's Reference No 132 of 2001 (R v Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R (S) 41 |
As above, authority on principles for section 36 references. |
Referred to in the summary of principles this court must apply on a section 36 application. |
| R v Needham [2016] EWCA Crim 455 |
Guidance on calculating disqualification periods where custodial sentence is imposed (including adding part of custodial term to period of disqualification). |
Cited as authority for increasing driving disqualification to three years plus half of the custodial term imposed (resulting in five years and six months disqualification). |
| R v Webb [2024] EWCA Crim 1699 |
Committal for sentence is lawful where a power to commit was available even if an incorrect power was used. |
Used to support the conclusion that any procedural doubt about committals did not invalidate the Crown Court's jurisdiction to sentence. |
| R v Butt and Jenkins [2023] EWCA Crim 1131 |
Affirms that a sentence is not invalidated where an incorrect statutory power was used to commit a case to the Crown Court. |
Relied upon in the assessment of the lawfulness of committals from the Magistrates' Court. |
| R v Bills [2025] EWCA Crim 794 |
Reiterates Butt on committal error and invalidity of sentence. |
Cited to show recent authority sustaining sentences despite technical committal errors. |
Court's Reasoning and Analysis
The court began by restating its limited and established role on an application under section 36: the sentencing judge at first instance is especially well placed to weigh competing factors; a sentence is only unduly lenient if it falls outside the range that the sentencing judge might reasonably have adopted; and leave to refer should be granted only in exceptional cases. The court relied on the case law summarising these principles.
On the statutory minimum term for a third drug trafficking offence (section 313 of the Sentencing Code and the relevant Sentencing Council guideline), the court accepted that the sentencing judge had been entitled to find that, in the particular circumstances, imposition of the minimum term would be unjust. The judge had placed emphasis on (i) the 12‑year gap between a prior drug trafficking conviction and the triggering offence, (ii) strong personal mitigation and an evident change in behaviour since a serious assault on the Defendant, and (iii) the significant likely impact of immediate custody on the Defendant. The appellate court held that the sentencing judge’s assessment on that narrow point was an evaluation the judge could properly make and that intervention on that discrete point was not appropriate.
However, the court proceeded to examine whether the ultimate disposal — a three year community order with GPS monitoring and rehabilitation requirements — was adequate. Applying the Sentencing Council guideline for being concerned in the supply of Class A drugs, the court observed that the relevant count concerned dealing directly with users (harm category 3) and that, even on the judge’s view that the Defendant had a lesser role for a single day, the guideline’s notional starting point after trial for such an offence is three years' custody with a category range of two to four and a half years. The court emphasised that the appropriate stepped guideline process (steps 1–3 and beyond) should be followed and that mitigating factors (including neurological impairment) can be addressed within the guideline steps rather than displacing the guideline outcome in an ad hoc way.
The court accepted that the post‑offending assault and resulting injuries could not reduce the Defendant’s culpability for offending that pre‑dated the assault; those factors were relevant mitigation for sentence, and for consideration by prison authorities in managing the Defendant, but did not make custody inappropriate per se. The court further noted that many of the offences were committed during the currency of an earlier suspended sentence order, a factor that needed proper reflection in the overall sentence.
Taking account of the guideline starting points, the gravity of the lead offence and the additional offending (but respecting totality), the court concluded that a custodial sentence was necessary. The court then explained the adjustments it considered necessary to reach a just and proportionate total sentence: it increased the sentence for the lead count to five years' imprisonment, activated the previously suspended 15‑month sentence but ordered it to run concurrently, adjusted sentences for the other counts (specifying custodial terms for each), ensured concurrency so that the total effective sentence remained 5 years, and increased the period of driving disqualification to five years and six months (the judge’s original three years plus half of the custodial term imposed by the court).
On the procedural issue of committals, the court agreed with the submissions in a note prepared by Attorney Husbands and held, relying on recent authorities, that any potential technical error in the statutory power used by the Magistrates' Court did not invalidate the committal where a power to commit was available; therefore no procedural invalidity required interference with the substituted sentences.
Holding and Implications
Holding: The application under section 36 of the Criminal Justice Act 1988 is granted. The court found that the original sentences were unduly lenient in the respects identified, quashed those sentences to the extent set out in the judgment, and substituted the new sentences as described below.
Direct consequences implemented by the court:
- The sentence for the lead offence (being concerned in the supply of a Class A drug) is substituted with a sentence of five years' imprisonment.
- The previously imposed 15‑month custodial sentence (the suspended sentence) is activated in full but ordered to run concurrently with other sentences; all other specified sentences are adjusted as set out by the court and run concurrently so that the total sentence is five years' imprisonment.
- Individual replacements or variations of sentence imposed by the court (summarised as in the judgment): shorter custodial terms for specified road traffic and drug counts, concurrent custodial terms for theft, breach of restraining order, and other relevant counts, and no separate penalty for certain minor counts where appropriate.
- The period of disqualification from driving is increased from three years to five years and six months and an extended re‑test is required.
- The Defendant is ordered to surrender to custody at The City by 12 noon the day after the order (direction as to surrender).
- Payment of the appropriate statutory surcharge is directed.
Broader implications: The court reiterated established principles on the limited scope of appellate intervention under section 36 and the correct application of statutory minimum provisions and Sentencing Council guidelines. It confirmed that post‑offence personal injury and disability, while important mitigation, do not negate culpability for earlier offending; such mitigation must be applied within the guideline process. The court also reiterated that technical procedural errors in committal do not necessarily invalidate a Crown Court sentence where a power to commit existed.
Note: This summary is confined to the information contained in the provided opinion and does not add or infer facts beyond that source.