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[2025] EWCA Crim 1812 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT DERBY (HIS HONOUR JUDGE BENNETT (30DI1039523 30DI2126123) CASE NO: 202503016 A5 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE WARBY
MR JUSTICE LAVENDER
HER HONOUR JUDGE DE BERTODANO
REX
v
RACHEL LUCY BERESFORD
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Computer Aided Transcript of Epiq Europe Ltd,
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_________
MR DAVID WATTS appeared on behalf of the Appellant
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JUDGMENT
JUDGE DE BERTODANO:
On 3 January 2025 at Derby Crown Court the appellant pleaded guilty to two offences of being concerned in the supply of Class A drugs, one offence of possession with intent to supply Class A drugs and one offence of simple possession. On 15 August 2025 she was sentenced to a total sentence of 22 months' imprisonment.
She appeals against that sentence with the leave of McGowan J on the single ground that a sentence of immediate imprisonment was manifestly excessive.
Facts
On 19 May 2023 officers executed a warrant at the appellant's home address and found a
small amount of cocaine and cash, and also evidence showing her involvement in the supply of cocaine and heroin since August 2022. She was interviewed and released under investigation.
On 9 October 2023 officers executed a further warrant at the same address and found a quantity of Class A drugs. She was interviewed and again released under investigation.
On 29 October 2024 she received a postal requisition for the 19 May matters, followed a few days later by a postal requisition for 9 October matters. She appeared at the magistrates' court in respect of all matters on 28 November 2024, and at Derby Crown Court on 3 January 2025 she pleaded guilty at the plea and trial preparation hearing to all matters.
A basis of plea was uploaded on 2 April and it reads as follows:
"Rachel Beresford pleads guilty on the following basis:
She has a long-standing addiction to Class A drugs.
She was released from prison owing money and being pressured into continuing to assist with an on-going enterprise.
She was subjected to domestic violence in which the police were involved.
She was issued with an Osman warning by the police.
Many of the texts in the evidence relate to her trying also to feed her own drug habit."
On 15 August 2025 the prosecution indicated they accepted the basis and the appellant was sentenced on the same day.
No issue is taken with the length of sentence passed. The sentencing judge accepted that the offending was correctly characterised as lesser role given that she was low down in the chain and feeding her own habit. The harm was category 3 street dealing, giving a starting point of 3 years' imprisonment with a range of 2 years to 4-and-a-half years. The judge moved this upwards for the length of time over which the offending occurred, the fact there were two separate sets of matters, one of which was committed after she had been released under investigation on the other. He then reduced for significant mitigation to 30 months' imprisonment and gave her just under 25% credit for her plea in reducing it further to 22 months' imprisonment.
He was provided with both a pre-sentence report dated 5 August 2025 and a liaison and diversion report dated 26 June 2025. Details in these reports included the following:
The appellant is a vulnerable individual who had a long battle with drug addiction.
She has a history of being at risk from domestic violence.
She gave birth in February 2024 and her son was taken into care and placed for adoption.
Her father died on 24 December 2024.
She has made progress in terms of drug use.
Her most recent drug tests have produced negative results.
The author of the pre-sentence report assessed her as suitable for a rehabilitation activity requirement and a drug rehabilitation requirement.
In deciding that sentence should be served immediately the judge said as follows:
"That, of course, is a sentence that is capable of suspension, and I have had to exercise my mind as to whether I can suspend it. The factors, of course, that I have to take into account to persuade me to allow me to suspend are a realistic prospect of rehabilitation. It is very early days. There is some prospect. I have seen the letter here, but I know you have also missed appointments as well. You have clearly got some significant personal mitigation, but you do have a poor compliance with court orders and also the fact that you committed identical offences whilst under investigation means in my view appropriate punishment can only be achieved by immediate custody."
Grounds of appeal
The appellant, represented both at sentence and today by Mr Watts, argues that the judge fell into error in assessing the appellant as unable or unlikely to comply with a suspended sentence order. The information provided in both the reports should have led him to the conclusion that, applying the Sentencing Council's Overarching Guideline on the Imposition of Community and Custodial Sentences, it was not necessary for the sentence to be immediate.
Consideration
The Overarching Guideline on the Imposition of Community and Custodial Sentences which applied at the date of sentence has a table of factors for judges to consider when deciding whether a custodial sentence should be served immediately:
"Factors indicating that it may be appropriate to suspend a custodial sentence:
Realistic prospect of rehabilitation
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others "
Conversely:
"Factors indicating that it would not be appropriate to suspend a custodial sentence:
Offender presents a risk/danger to the public
Appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders."
Judges when considering whether to suspend a sentence must also have regard to the very high prison population, as set out in R v Ali [2023] 2 Cr App R (S).
It is well established that this court will be slow to interfere with decisions of this sort made by sentencing judges who have weighed up the appropriate factors. The general approach is helpfully summarised in the case of R v Bond [2024] EWCA Crim 406. The court in that case reviews the authorities and in particular quotes the case of R v Price [2023] EWCA Crim 1060 in which Lavender J, giving the judgment of the court, said at (12):
"We acknowledge that the decision whether or not to suspend a custodial sentence is often the most difficult decision which a sentencing judge has to make. In many cases, and certainly in most cases which come before this court, there are things to be said for and against suspending the sentence. The guideline is helpful insofar as it identifies relevant factors, but it is not simply a matter of counting the factors on one side or the other which apply in a particular case. Moreover, the competing factors are incommensurable. Weighing the competing factors can never be an arithmetical exercise. The question of which factor or factors should prevail in any particular case is necessarily a question of judgment and, moreover, a judgment of the kind which sentencing judges are experienced in addressing. This court will not lightly interfere with judgments of that nature. Appellants in such cases will not succeed unless they can show that the decision not to suspend their sentence was either manifestly excessive or wrong in principle."
The judge in sentencing in this case makes no explicit reference to the Guideline, although he clearly had it in mind. He refers to the fact the appellant had a poor history of compliance with court orders which reduced her chances of rehabilitation and the fact that one offence was committed whilst she was released under investigation for others, which in his view meant that appropriate punishment could only be achieved by immediate custody.
The following factors are relevant to our decision:
The judge refers to "the factors that I have to take into account to persuade me to allow me to suspend". This is not a correct characterisation of the process. It implies that there is a presumption in favour of immediate imprisonment. There is not.
The judge made no reference to any factors which should be particularly borne in mind when sentencing female offenders. We recognise that the specific guidance on sentencing female offenders which is now included within the Overarching Guideline on the Imposition of Community and Custodial Sentences was not effective at the date of sentence. It became effective on 1 September 2025, 17 days later. However, even before the guidance was effective, when a court was considering whether to pass a sentence of immediate custody on a female defendant, there are gender-specific matters which should have been taken into account. In this case the appellant is a woman whose offending is linked to mental ill-health, including trauma, substance misuse and being a victim of domestic abuse. She is clearly vulnerable. She has been receiving support in the community which has helped her to get clean of drugs, and the impact of a prison sentence on breaking that continuity is likely to be considerable. She is a woman who has lost her only child and has few close family relationships so has no ready network to provide her with support on release which may make her vulnerable to further abuse. The increased impact of prison on female offenders is in her case highly relevant.
Both the reports available to the judge concluded that there was a realistic prospect of rehabilitation. The appellant had not been subject to the requirements of a court order since 2014. The probation officer wrote:
"Her last occasion of drug treatment as part of a court order was in 2014 when her circumstances were different and her motivation was low. She presents now with a high level of motivation to improve her life."
The view of the probation officer was that "her motivation appears to be genuine", and while he acknowledged concerns with her capacity to maintain progress, he noted that "only with external provision and support has she been able to make progress". The liaison and diversion report details periods of poor engagement but also describes her as cheerful and motivated, and concludes, "Her care and treatment are best met by her continued engagement with substance misuse services". The judge, therefore, made the assessment that there was a risk of poor compliance on the basis of historic evidence without sufficient regard to the more up-to-date assessments.
The judge appears to have approached sentence on the basis that there is a presumption that supply of Class A drugs, repeated when under investigation for a similar offence, will mandate immediate imprisonment. In fact it is always a case-specific balancing exercise.
This is a 36-year-old woman with a long history of addiction and offending. Her sentence hearing happened, through no fault of her own, over 22 months after the last offence for which she was charged. In that time she had not committed any further offences - a significant achievement for a woman with her previous history. She was at the time of sentence engaging with the assistance provided and she provided evidence of recent negative drug tests – again a significant achievement given her history. In short, this was a woman for whom at the time of sentence there was a realistic prospect of rehabilitation in the community who had demonstrated that she did not currently present a high risk of offending or harm and who had, as the judge acknowledged, strong personal mitigation.
When considering all the factors in this appellant's favour, in our judgment this was not a case in which appropriate punishment could only be achieved by immediate imprisonment. The decision to impose an immediate sentence of imprisonment was manifestly excessive.
The sentence of 22 months' imprisonment and all the other concurrent sentences will be suspended for 24 months from the date of sentence, with the following requirements as set out in the pre-sentence report: a 20-day rehabilitation activity requirement, a 6-month drug rehabilitation requirement, and 6 months of electronically monitored trail monitoring.
To that extent the appeal succeeds.
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