[2025] EWCA Crim 1237

In summary, Miss Husbands makes the following submissions on behalf of the Solicitor General. First, it is said that the sentencing judge did not apply the guidelines correctly in approaching the applicability of the minimum sentence for a third offence of drug trafficking; the factors applied were not such as to make the imposition of that minimum term unjust. Secondly, if the imposition of the minimum term was unjust, the offences and the offences associated with them remain so serious that a fine or a community order could not be justified. Thirdly, she submits that the principle of totality was misapplied. Having considered the appropriate sentence for the drugs matters, the activation of the suspended sentence order should have been considered. The factors were such that the near full term should have been imposed in addition to the sentence for the drugs offences. In consequence, she submits that the imposition of a three year community order was unduly lenient in the circumstances of this case.

In more detail, Miss Husbands submits that the judge erred in law by not applying the minimum term provision in section 313 of the Sentencing Code; that the court is required to apply the law as enacted by Parliament and should not be tempted to treat perfectly normal circumstances as particular circumstances justifying a decision not to impose the minimum sentence: see Clarke (cited above).

Miss Husbands submits that the applicable test is not as the judge had expressed it at the Goodyear hearing, as "exceptional circumstances", but required a finding that the imposition of a minimum term would be unjust in all the circumstances: see section 313(2).

The factors set out by the judge for not imposing the minimum term should have been factored into the applicable starting point at step 2 by reference to the definitive guideline. An upward adjustment was then required to take the offender's previous convictions into account and the fact that the offence had been committed during the currency of the suspended sentence order.

Miss Husbands accepts that a downward adjustment was then required in consideration of the mitigating features at step 2 in accordance with the guidance in relation to sentencing offenders with neurological impairment.

Nevertheless, she reminds this court that the injury to the offender, serious though it was, was not capable of affecting his culpability since the injury occurred after the commission of the offence. She submits that this feature was not such as to make the applicability of the minimum term unjust.

Secondly, Miss Husbands submits that even if the judge had found that to impose the minimum sentence was unjust, the offence and the offences associated with it were so serious that neither a fine alone, nor a community sentence could be justified: see section 230 of the Sentencing Code.

Thirdly, in applying totality at step 6, this should have been apparent. Having considered the applicable sentence on count 1, the totality principle required the judge to consider whether the overall sentence was commensurate with the whole criminality of the offender, in light of the other offences for which sentence had to be passed. It was at this point also, she submits, that the activation of the suspended sentence order should have been considered.

The applicable guideline for breach of a suspended sentence order makes it clear that the full term should have been activated where the new offences were serious, and there was little time between the passing of the suspended sentence and the breach. She reminds the court that the first of the new offences was committed within days, and the other relevant offences were also committed during the term of the suspended sentence order.

Accordingly, she submits that the applicable starting point for the breach of the suspended sentence alone was 15 months' imprisonment, in addition to the applicable sentence for a third drug trafficking offence, also with an uplift to account for the other offences, less, she accepts, a reduction for the guilty pleas, and to account for the principle of totality.