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Riberio, R. v
Factual and Procedural Background
The Appellant, aged 26 at sentence, was sentenced on 12 June 2025 by Judge Weekes at the Crown Court at The City to two concurrent terms of 3 years and 2 months' imprisonment for two counts of being concerned in the supply of a class A controlled drug contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The Appellant had previously been sentenced on 12 September 2024 by Judge Livesey to 2 years and 4 months' imprisonment for operating a drugs line known as the "Riley" line (October 2023–February 2024). After that arrest and release on bail in June 2024, the Appellant operated other drug lines: the "Alfie" line (early July–end July 2024) and a further unnamed line (1 August–12 September 2024). The indictment in the present proceedings covered activity between 30 June 2024 and 11 September 2024. The Appellant was postally requisitioned while serving the Riley sentence and appeared at a plea and trial preparation hearing on 15 May 2025; it was known by 22 May 2025 that he would plead guilty. The Appellant appealed the sentence imposed on 12 June 2025 with permission.
Legal Issues Presented
- Whether the sentencing judge erred in principle by effectively re-sentencing and discounting an earlier sentence he regarded as unduly lenient, absent a reference under section 36 of the Criminal Justice Act 1988.
- Whether the principle of totality was applied correctly when imposing sentence for the Alfie line offending given the earlier sentence already being served.
- Whether the overall sentence was manifestly excessive.
Arguments of the Parties
Appellant's Arguments (Attorney McAddy)
- The judge failed to give proper effect to the principle of totality by not adjusting the sentence to reflect the earlier sentence already imposed.
- The judge ought to have started from the earlier sentence and added only what the earlier judge would have added if aware of both matters, or otherwise adjusted to reflect the loss of opportunity to accrue time in custody for the Alfie matter.
- The earlier sentence had not been referred to the Court of Appeal under section 36, so it was inappropriate for the second-sentencing judge effectively to increase it.
- The aggregate sentence was manifestly excessive (a notional 5½ years equating to an after-trial equivalent of 7 years 4 months was argued to be too long).
- The Crown knew of other proceedings and failed to disclose this to the court or defence.
Respondent's Arguments
- The Crown was not aware of the Alfie line evidence at the time of the Riley sentence and did not have material to charge then.
- The Appellant could have disclosed the phone material earlier or admitted involvement earlier, but the Appellant does not rely on Crown conduct for sentence reduction.
- The sentence imposed reflected the overall conduct; offending on bail is an aggravating feature (citing section 64 of the Sentencing Code).
- The Alfie and Riley offending do not overlap in time; the Alfie offending was more serious (two Class A drugs and committed while on Crown Court bail for similar offending).
- Accordingly, the overall sentence was neither manifestly excessive nor wrong in principle.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Thompson [2012] EWCA Crim 1764 | Approach of asking what sentence would have been if all matters had been dealt with at the same time. | Used to endorse asking what the combined sentence would have been as the best arithmetic approach when later offences are brought to account. |
| R v Pidgeon [2017] EWCA Crim 538; [2017] 2 Cr. App. R. (S.) 43 | Demonstrates problems created by imposing sentences concurrently and the correct treatment of time already served (and effects of early release provisions). | Relied on to explain why sentencing judges must take care how they deduct time already served so that early release provisions do not distort intended credit. |
| Patel [2021] EWCA Crim 231; [2021] 1 WLR 2997 | Summary of authorities establishing that early release provisions do not affect the judge's sentencing decision and that release expectations should be left out of account. | Applied to confirm that sentencing should not account for early release provisions and to summarise binding principles from case law and the Supreme Court. |
| R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 | Principles concerning early release arrangements and their relationship to sentencing (as cited within Patel). | Referenced via Patel to support the proposition that early release arrangements do not affect sentencing decisions. |
| Dunn (Tony) [2012] EWCA Crim 419 | Example where application of release provisions produced a harsh result contrary to a sentencing judge's intention. | Referenced as an example of issues arising when release provisions affect practical outcomes contrary to sentencing expectations. |
| Francis [2014] EWCA Crim 631 | Example of timing/delay affecting applicable provisions and sentencing outcomes. | Referenced to illustrate consequences when procedural delays change applicable sentencing provisions. |
Court's Reasoning and Analysis
The Court accepted that, ideally, all matters are sentenced together or by the same judge, and acknowledged practical difficulties the Crown may have faced. The Court was, however, critical of the sentencing judge's approach in treating the earlier sentence as "lenient, even very lenient" and constructing an overall sentence that ignored the earlier sentence, thereby effectively re-sentencing the Appellant for the Riley matter without a section 36 reference. The Court held that, in the absence of a reference under section 36 of the Criminal Justice Act 1988, a sentencing judge on a later occasion must proceed on the footing that the earlier sentence was correct and cannot question it as unduly lenient.
The Court rejected the Appellant's suggested method of attempting to predict what the earlier judge would have done and also rejected the Respondent's suggestion that the judge could simply take overall offending into account in a way that risked re-sentencing the earlier matter. The correct task was identified as determining a just and proportionate sentence for the Alfie offending while properly taking into account the sentence already passed for the earlier offending.
The Court applied the Totality Guideline. It determined that the Alfie offending fell within category 3 (significant role) under the drugs guideline, with a starting point of 4½ years and a range of 3½–7 years. The Court assessed that an after-trial sentence would have been about 5 years and 4 months; applying 25% credit for the plea produced a notional 4-year sentence, and after applying the Totality Guideline's requirement for a substantial downward adjustment because the sentences were consecutive and closely associated in time and type, the Court concluded the correct sentence for the Alfie offending was 24 months. The Court therefore reduced the sentence imposed on the Alfie counts accordingly and adjusted the overall sentence outcome.
Holding and Implications
APPEAL ALLOWED IN PART.
Holding: The Court reduced the sentence on both counts from 3 years and 2 months' imprisonment to 2 years' imprisonment (concurrent). The Appellant's appeal is allowed to that extent.
Implications: The direct effect is the reduction in the Appellant's sentence as stated. The Court emphasised the principle that a sentencing court on a later occasion should not treat an earlier unchallenged sentence as unduly lenient or re-sentence the earlier matter absent a section 36 reference. The opinion did not purport to set new precedent beyond applying and clarifying existing guidelines and authorities; its effect is to correct the sentence in this case.
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