R v Jason Howells

This is an application by His Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988 ("the 1988 Act"), for leave to refer to this court sentences on the ground that they were unduly lenient.

In brief, the offender was sentenced by His Honour Judge Levett in the Crown Court at Ipswich in 2022 to a suspended sentence order for the offence of affray. Subsequently, the offender pleaded guilty to a number of offences at the Magistrates' Court. They included: driving with drugs in excess of the limit; using threatening and abusive language; shoplifting; and a breach of a Restraining Order. He was committed to the Crown Court for sentence. In addition, he was sent to the Crown Court for trial on drugs offences, including, in particular, the offence of being concerned in the supply of a Class A drug (cocaine), to which he entered pleas of guilty. This was his third conviction for a drug trafficking offence. Accordingly, the statutory minimum provision applied, subject to an exception to which we shall return.

In due course, on 20 June 2025, the offender was sentenced by His Honour Judge Levett at the same Crown Court to a three year community order. The details of the sentences are something to which we shall return in due course. The judge imposed a rehabilitation activity requirement of 25 days and a GPS requirement of 18 months. In relation to the breach of the suspended sentence order, a nominal fine of one pound was imposed. The underlying sentence itself was not activated.

The facts can be taken from the Final Reference which sets them out in summary and then in more detail. For present purposes, the summary will suffice.

Having been sentenced to 15 months' imprisonment suspended for two years on 25 February 2022, the offender went on to commit 11 offences during the currency of that suspended sentence order. Those offences related to three arrests between 7 March 2022 and 7 May 2023. The offender was committed to the Crown Court for sentence in relation to each of those offences.

On 7 March 2022, the offender refused to provide a blood specimen, having been found by police intoxicated with drugs behind the wheel of a car.

On 27 May 2022, the offender was stopped in a car. His 3 year old grandson was in the back of the car without a car seat or booster seat. 11 wraps of synthetic cannabinoids of Class B were found in the car door pocket. Scales, £120 cash and a small amount of cannabis were also found in the car. A mobile phone was next to the driver's seat which was receiving text messages. The offender became abusive to police on arrest. He provided a blood sample at the police station and was found to be over the prescribed driving limit for THC (a derivative of cannabis) and BZE (a derivative of cocaine).

When police opened the offender's phone, there was evidence of being concerned in the supply of cocaine (messages in relation to money owed for cocaine previously supplied) and production of cannabis (photographs of cannabis plants with messages discussing the yield of sale of the product).

As a result of that arrest, the following charges followed: two offences of driving a motor vehicle over the prescribed limit for drugs (summary only); driving a motor vehicle with a child passenger not in a car seat or booster seat (again summary only); section 4A of the Public Order Act 1986 (using abusive language towards the police on arrest); being concerned in the supply of a Class A drug (cocaine, relating to messages on the phone); two charges of possessing a controlled drug of Class B with intent to supply (a reference to the two types of synthetic cannabinoid of Class B found in the 11 wraps in the car); production of a controlled drug of Class B (relating to the photographs of cannabis plants seen on his phone); and possession of a controlled drug of Class B (cannabis found in the car, for personal use).

On 7 May 2023, the offender was seen on CCTV assisting another in the shoplifting of cleaning products worth £40 from a shop.

Significantly, as will become apparent in the course of this judgment, on 22 September 2023, the offender himself was the victim of a serious assault, during which he was stabbed seven times. During this incident, he was stabbed in the eye. He also suffered significant skull fractures which left him with some disabilities. Since the attack, he has given a statement to police and is supporting the prosecution of his attackers. He is the complainant and a witness in a forthcoming trial for attempted murder. The trial is due to take place in 2026.

One further offence was committed after the assault. A Restraining Order was placed on the offender on 30 August 2023, preventing him from attending his ex-partner's address (although contact between them was not prohibited). On 6 August 2024, three weeks prior to the expiry of the Restraining Order, a neighbour contacted police as the offender was banging on the door of that address. He was arrested nearby.

On 20 June 2025, as we have mentioned, the offender was sentenced in the way that we have outlined. We will return to that, as we have said, in greater detail later.

In the Crown Court, on 19 February 2025, an indication was sought as to sentence in respect of counts 1 to 4 on the drugs indictment in accordance with R v Goodyear [2005] 2 Cr App R 20. In giving that indication, His Honour Judge Levett indicated that he would not apply the minimum term on the basis that no drugs had been recovered; that in the intervening period the offender had been stabbed, including in the eye, which had resulted in severe ill-health; and that there had been a 12 year gap between his last drug trafficking offence and the triggering offence in count 1. Further, the judge indicated that due to the way in which count 1 had been indicted, covering a single date, there was not a significant role on that day and the judge would consider the offender as having a lesser role. The judge stated that the imposition of the seven year minimum term would therefore be disproportionate and there were exceptional circumstances. The judge added that the case of R v Clarke (Jewell) [2024] EWCA Crim 1555; [2025] 1 Cr App R (S) 44 had been considered and the lapse of time (12 years) between the drugs offences, the strong personal mitigation and realistic prospect of rehabilitation and the significant impact of custody on the offender had all been considered.

After the indication was given, the offender was re-arraigned and entered guilty pleas on counts 1 to 4 on the drugs indictment. The case was adjourned to 20 June 2025 for sentence, and the court ordered a pre-sentence report to consider GPS monitoring.

The offender was born on 9 July 1975 and is 50 years old.

The sentencing court had before it various documents, including a detailed sentencing note drafted by the Crown; an expert psychiatric report prepared by Dr Raman Deo, dated 27 June 2024, which set out the injuries suffered by the offender, his amnesia, cognitive functioning impairment and prognosis. It also dealt with fitness to plead. In addition, there was an expert neuropsychology report, prepared by Dr Green, dated 11 November 2024. This further set out the injuries suffered by the offender, his reported amnesia, some cognitive impairment and his prognosis, including difficulty living independently and reported memory issues. There were supervision reports and a pre-sentence report, dated 19 June 2025. This, in summary, stated that, having been brought up in care, the offender had been addicted to drugs for many years. As a result, Probation intervention had been problematic. However, the report dealt with the marked difference in the offender's attitude since his injury. Probation officers who knew the offender, had seen a real change. He had motivation to abstain from drugs and to attain justice for the attack upon him. His memory issues were noted, but engagement with Probation was much improved. Whilst his life remained chaotic, he was keeping appointments and wanted meetings kept to regular times in order to maintain his appointments.

In passing sentence the judge considered the Crown's sentencing note but commented that whether he agreed with everything in it was another matter. He indicated that count 1 on the drugs indictment was both the trigger offence and the lead offence. In respect of the particulars of the indictment in relation to count 1, the judge said that he had previously pointed out on three occasions that the charge that was drafted concerned one day and did not necessarily represent the evidence that had been served. He took the view that a Newton would not resolve the problem with the particulars of the indictment.

The judge went on that since the offender's serious attack, blue water was between events prior to and events after that date. Prior to that, he was a recidivous offender. Since that incident, there had been a single breach of a Restraining Order which was in different circumstances to that which might ordinarily occur.

The judge said that what had been going on in this case needed to be set out so that anyone reviewing the case appreciated his thinking and concerns. The judge went on to summarise the attack on the offender in September 2023, and that the offender was to be a witness in his own attempted murder trial. The judge also went on to summarise the offender's serious injuries, and the ongoing effect of them, as set out in the reports of Dr Deo and Dr Green.

The judge referred to the consistency between the applicable assessments required in implementing the minimum term and activating the suspended sentence order. The judge noted that the same three considerations applied: strong personal mitigation, a realistic prospect of rehabilitation and whether an immediate custodial sentence would have a serious impact on others.

The judge again referred to there being a 12 year gap between the last drugs trafficking offence and count 1, and the offender's significant change in behaviour due to life-changing events.

Consequently, the judge took the view that implementation of the minimum term and activation of the suspended sentence would be unjust. Therefore a three year community order was passed in relation to each imprisonable offence, to run concurrently, with the Building Choices programme, 25 Rehabilitation Activity Requirement days and the GPS monitoring for 18 months which should allow for his wellbeing to be monitored and for him to be traced in relation to being a witness next year. It was the judge's intention that the GPS monitoring continue until the date of the attempted murder trial. A nominal fine of one pound was imposed to mark the breach of the suspended sentence order.

As we have been reminded on behalf of the Solicitor General, this court is not bound by an indication which may have been given by a sentencing court: see Attorney General's Reference No 17 of 1998 [1999] 1 Cr App R(S) 407. That continues to apply after the procedure which has now been endorsed by this court in R v Goodyear [2005] and subsequently the Criminal Procedure Rules.

We have also been reminded on behalf of the Solicitor General of the definitive guideline issued by the Sentencing Council for offences of being concerned in the supply of Class A drugs.

There is no dispute in this case that count 1, which is the relevant offence, was about being concerned in supplying drugs directly to users. The harm was therefore necessarily within category 3 in the guideline.

If one takes the position, which the judge did, that the indictment referred to only one day, and therefore the offender's role was a lesser one, the guideline recommends a sentence with a starting point of three years' custody, within a category range of two years up to four years and six months.

As is common with Sentencing Council guidelines, a stepped approach is required if the guideline is to be applied properly. In the course of that stepped approach, having gone through steps 1 and 2, it is only at step 3 that the guidelines states that consideration should be given to the imposition of the seven year minimum term which is otherwise required under section 313 of the Sentencing Code, and to consider whether the imposition of that minimum term would be unjust in the particular circumstances of the case.

There is no dispute that in the circumstances of the present case, other things being equal, the facts are such that the third drug trafficking offence did trigger the minimum sentence provisions. Count 1 was committed on 27 May 2022.

It is accepted on behalf of the Solicitor General that the question of whether there are particular circumstances which made the imposition of the minimum term unjust is inherently a fact sensitive exercise: see R v Woolfe [2019] EWCA Crim 2249; [2020] 2 Cr App R(S) 6.

Our attention is drawn to the decision of this court in R v Clarke (Jewell) in particular at [16], where Edis LJ said that the court is required to apply the law that Parliament enacted; it should not be tempted to treat perfectly normal circumstances as particular circumstances justifying a decision not to impose the minimum sentence.

Further, at [28] Edis LJ said that the judge was required to follow the guideline which set out a process by which if he had followed it faithfully he would also comply with his legal obligation under section 313 of the Sentencing Code. The proper way of approaching that case was to go through the steps in the guideline which applied, in the order in which they are set out in the guideline. That involves dealing with step 1 first, step 2 second and step 3 third.

According to the guideline, in considering the offence at step 3, a provisional assessment is made as to the seriousness of the triggering offence. Against that, the seriousness of the earlier offences and the period of time that has elapsed between offences, may determine whether the imposition of the seven year term would be unjust. However, in Attorney General's Reference (R v Marland) [2018] EWCA Crim 1770, the sentencing judge had given considerable weight to the passage of time between the commission of the offence with which they were dealing and the second qualifying offence, this court held that that was not a sufficient reason not to impose the minimum sentence required by the statute.

We should also mention the more general provisions of section 59 of the Sentencing Code, which required a sentencing court to follow any relevant sentencing guideline, unless satisfied that it would be contrary to the interests of justice to do so.

Turning to the question of breaches of the suspended sentence order, we are reminded on behalf of the Solicitor General that paragraph 14 of Schedule 16 to the Sentencing Code requires a court to activate a suspended sentence order unless it is of the opinion that it would be unjust to do so.

The guideline on breaches of a suspended sentence sets out the predominant factor in determining whether activation is unjust which relates to the level of compliance with the original order, and the facts and nature of the new offence. Where the breach involves multiple or more serious new offences being committed, the penalty would usually be full activation of the original custodial term.

The guideline makes clear that only new and exceptional factors or circumstances not present at the time the suspended sentence order was imposed, should be taken into account.

We are also reminded on behalf of the Solicitor General that merely passing the custody threshold does not mean that a custodial sentence is inevitable: see, for example, R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R(S) 28.

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.

On behalf of the offender, Mr Dyble submits that the sentence was not unduly lenient. He reminds this court that the judge is a very experienced judge; indeed it is his second term as resident judge at Ipswich. He submits that the judge was intimately familiar with all the history of this case and its likely future, given the forthcoming attempted murder trial.

He submits that the judge was entitled to exercise his discretion not to impose either the minimum term for the drugs offence or to activate the suspended sentence order, given the particular circumstances which would have made it unjust to do so. Mr Dyble accepts that the offender has a very bad record and that drug addiction has blighted his life; but he submits that the overwhelming majority of the offences for which the offender fell to be sentenced were committed in March or May 2022, and thus the period of three years from the date of sentence in respect of most of the offences. He submits that it was open to the judge to find that the offender was a fundamentally changed man at the date of sentence; that there had been a remarkable cessation in his offending – there had been only one offence since that time (the breach of the Restraining Order). Moreover, the offender was engaging positively with the Probation Service, in contrast with his virtually entire previous years of offending. Mr Dyble submits that the offender's known engagement with the police de facto excludes him from further operating in drug dealing. He submits that the attack has left the offender with profound physical disabilities and neurological impairment. He was blinded in one eye and suffered a serious skull fracture causing head injury. As a consequence, he has significant issues with amnesia and cognitive functioning, as borne out by the medical reports to which we have referred. He submits that there are real issues for the offender living independently, therefore.

Further, Mr Dyble submits that the judge was entitled to have regard to the relatively low seriousness of the count of being concerned in the supply of cocaine. He had repeatedly raised at the interlocutory hearings that the count was restricted to one day, and so the Crown was confined to the way it had pleaded the charge.

Finally, Mr Dyble has submitted at the hearing before us that, as a matter of common sense, one should have regard to the fact that there will be security issues raised if the offender is to serve a sentence in prison, given that he is to be a witness at the forthcoming trial for attempted murder.

In all the circumstances, therefore, Mr Dyble submits that the sentence is not one with which this court should interfere on a reference under section 36 of the 1988 Act.

We remind ourselves of the important but relatively limited role of this court on an application under section 36 of the 1988 Act. The principles are well established and were summarised, for example, in Attorney General's Reference (R v Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16 at [3] to [6], where this court cited the seminal decision of this court in Attorney General's Reference No 4 of 1989 (1990) 90 Cr App R 366 at 371; and the decision of this court in 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 the court there summarised, the principles are as follows:

Turning to the circumstances of the present case, in our judgment the judge was entitled to take the view that it would be unjust in the particular circumstances of this case to impose the statutory minimum term for the offence of being concerned in the supply of a Class A drug. That was very much a matter for his assessment and evaluation and it would not be appropriate for this court to interfere with that judgment.

However, when it comes to the question of whether a community order was an adequate sentence in this case, we do, with respect, consider that it was necessary to impose a custodial sentence. A sentence needed to be passed in accordance with the usual approach in the guideline, even if one were to put to one side any question of a minimum sentence. In our judgment, it was not reasonably open to the sentencing court to take the view that it would be contrary to the interests of justice not to follow that guideline.

The main factor which clearly influenced the sentencing judge was the serious attack on the offender in September 2023 and the consequent impact on his life. Nevertheless, as Miss Husbands has submitted, that cannot affect the culpability of the offender at the time of this serious drug offending. It can be taken into account in other ways. In particular, it is an important feature of the mitigation available to the offender and no doubt those who have to deal with the offender – for example, the prison authorities – will have to take steps to make sure that he can be properly looked after in the context of prison. But there are, with respect, people with disabilities who do have to serve custodial sentences in prison.

If the definitive guideline were to be applied, for a category 3 offence (that is, dealing directly with customers), and even taking the judge's position that the offender had played a lesser role, the starting point recommended is three years' custody, with a category range of two years to four and a half years. That is for a single offence and is the notional sentence after a trial. Account must be taken of both aggravating and mitigating features. Guilty pleas also need to be taken into account.

In addition, the other offences which were committed need to be taken into account. But, in our view, count 1 can properly be taken as the lead offence, and the other sentences ordered to run concurrently with the sentence imposed upon it. Very importantly, the fact that many of these offences were committed while there was a suspended sentence order in operation needs to be reflected in the overall sentence.

It follows that the sentence for count 1, which should be treated as the lead offence, needs to be increased so as to reflect the overall gravity of the offending, while respecting the principle of totality, so that the total sentence is just and proportionate.

We have reached the conclusion that the sentence on count 1 should be one of five years' imprisonment.

We also consider that the 15 month sentence imposed for the suspended sentence order needs to be activated, but should be made concurrent, as we have already taken it into account in arriving at the total sentence.

The sentences on the various other matters cannot be left untouched and also need to be varied. But we make it clear that they will all be made concurrent.

The new sentences in relation to each count or matter are as follows.

The first matter, with the reference URN 36CJ1256022, is an offence of failure to provide a specimen of blood, contrary to section 7(6) of the Road Traffic Act 1988. The sentence is altered so as to be eight weeks' custody.

The next matter, with the reference URN 37CJ1431822, consists of four matters. First, for driving a motor vehicle with a proportion of a specified controlled drug above the specified limit, contrary to section 5A(1)(a) of the Road Traffic Act 1988, the sentence will be one of four weeks' custody. Second, for driving a motor vehicle with a proportion of a specified controlled drug above the specified limit, again there will be a sentence of four weeks' custody. Third, for driving a vehicle with a child passenger under the age of 14 not wearing a seatbelt, contrary to section 15(3)(b) of the Road Traffic Act 1988, the judge imposed no separate penalty, and we leave that unchanged, so there will be no separate penalty. Fourth, for using threating words or behaviour, contrary to section 4A of the Public Order Act 1986, there will be a sentence of four weeks' custody.

We turn next to the indictment, which has the reference URN 37CJ1446222. It contains five counts and the sentences will be as follows: on count 1, which is the lead offence of being concerned in supplying a controlled drug of Class A to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, we impose a sentence of five years' imprisonment; on count 2, possession of a controlled drug of Class B with intent, contrary to section 5(3) of the 1971 Act, there will be a sentence of ten months' custody; on count 3, possession of a controlled drug of Class B with intent, again there will be a sentence of ten months' custody; on count 4, producing a controlled drug of Class B with intent, contrary to section 5(3) of the 1971 Act, there will be a sentence of three weeks' custody; and on count 5, possessing a controlled drug of Class B, contrary to section 5(2) of the 1971 Act, there will be no separate penalty.

Next, with the reference URN 37CJ1453723, for an offence theft, contrary to section 1(1) of the Theft Act 1968, there will be a sentence of four weeks' custody.

Lastly, with the reference URN 37CJ1710824, for breach of a Restraining Order, contrary to section 363(1) of the Sentencing Act 2020, there will be a sentence of eight weeks' custody.

We also need to deal with the suspended sentence order, which was imposed on 22 February 2022 for an offence of affray. We activate the custodial sentence in full, that is 15 months. But, as we have said, all of the sentences will run concurrently with each other.

That results in a total sentence of five years' imprisonment.

We need to deal with the period of disqualification from driving. The judge imposed a period of three years' disqualification and ordered the offender to take an extended re-test. We maintain the order that there has to be an extended re-test, but we increase the period of disqualification from three years to five years and six months. That represents the initial three years which the judge had imposed, but in addition includes half of the total sentence of imprisonment which this court is imposing. That accords, in our judgment, with the decision of this court in R v Needham [2016] EWCA Crim 455.

There are two ancillary matters that arise. First, in relation to the statutory surcharge, we direct that the appropriate statutory surcharge is payable.

Finally, the Criminal Appeal Office has raised a procedural issue, on which we have received helpful submissions from counsel. In particular, there is a very helpful note from Miss Husbands, on behalf of the Solicitor General.

The issue concerns whether the matters that were committed by the Magistrates' Court to the Crown Court were committed lawfully. Suffice to say that the note from Miss Husbands, with which Mr Dyble takes no substantial issue, sets out reasons why either the committals were lawful, or, if there is any doubt about them, there was an alternative way in which they could have been properly committed to the Crown Court for sentence.

It is unnecessary to prolong this judgment to deal with this technical issue, important though it is, because it has been made clear by this court in a number of recent decisions that a committal for sentence is lawful where there was a power available to commit, even though the magistrates sought to use another, unlawful power: see R v Webb [2024] EWCA Crim 1699 at [13]. That is clear from the judgment of this court in R v Butt and Jenkins [2023] EWCA Crim 1131. See also R v Bills [2025] EWCA Crim 794 at [5], where again Butt is cited, for the proposition that a sentence is not invalidated in cases in which an incorrect statutory power was used to commit a case to the Crown Court.

For the reasons we have given, we grant the application by the Solicitor General under section 36 of the 1988 Act. We give leave to refer the sentences to this court on the ground that they were unduly lenient. We find that they were unduly lenient in the respects with which we have dealt. We quash the sentences below to the extent that we have mentioned and we substitute the new sentences which we have set out above.

We direct that the offender must surrender to custody at Martlesham Police Station by 12 noon tomorrow, 12 September 2025. I am sure that he will understand the consequences if he does not surrender according to that order.

MR DYBLE: Certainly, my Lord.

LORD JUSTICE SINGH: Thank you all very much.