R v Danielle Hubbard [2025] EWCA Crim 614

[2025] EWCA Crim 614Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 10 April 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BRYANHIS HONOUR JUDGE MANSELL KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
DANIELLE HUBBARD_________MR Z HASHMI appeared for Appellant._________APPROVED JUDGMENT
[1]On 9 December 2024, having pleaded guilty before the Uxbridge Magistrates’ Court, the appellant (then aged 29) was committed for sentence pursuant to section 14 of the Sentencing Act 2020 in respect of the offence of being concerned in the fraudulent evasion of a prohibition of a Class B drug, contrary to section 170 (2), (3) and (4) of, and Schedule 1, to the Customs and Excise Management Act 1979.[2]On 14 March 2025, in the Crown Court at Isleworth (Her Honour Judge Balogun), the appellant (then aged 29) was sentenced to 16 months’ imprisonment.[3]The appellant appeals against sentence by leave of the Single Judge.[4]Turning to the facts of the appellant’s offending. On 6 December 2024 the appellant arrived at Heathrow Airport, having flown back from Thailand via Abu Dhabi. She had two checked-in suitcases. She was spoken to by a Border Force agent at the airport and confirmed that she had nothing to declare. She said that the bags had been given to her by somebody else and she did not know what the contents were or the combination of the locks. The bags were found to contain 37.52 kilograms of cannabis with an estimated wholesale value of up to £152,000 and a street value of £1.14 million. The appellant was arrested and gave a largely “no comment” interview. Thereafter she pleaded guilty at the first opportunity in the Magistrates’ Court and was committed for sentence in the Crown Court at Isleworth.[5]The appellant had two convictions for three offences; battery for which she received a Referral Order in 2013 and criminal damage and battery for which she received a fine in 2017. Whilst not an aggravating factor, such previous convictions meant that the appellant was not of previous good character.[6]There was a pre-sentence report. The appellant told the author that she had met a man on Tinder and they had begun dating a few months previously. Her account was that he asked her to bring two suitcases full of designer clothes from Thailand for which all expenses flight costs and accommodation would be paid and she would receive £7,000 on her return. She denied this raised any suspicions with her, and she continued to maintain a lack of knowledge or insight into this operation. Whilst expressing remorse, and in terms of victim awareness, she considered herself to be one herself. She had also suffered with her mental health, though this was not related to her offending. Whilst an actuarial Probation Service tool put her in the low risk of reoffending bracket, the author did not concur with this and placed her into the medium risk bracket for reoffending, and as posing a medium risk of serious harm to the public. The author recognised that the appellant faced a possible custodial sentence, but if the Court considered that such a sentence was avoidable, recommended a community order with unpaid work and a Rehabilitation Activity Requirement. There were also positive character references in relation to the appellant before the Court.[7]The judge in her sentencing remarks noted that it was Category 3 Harm (though close to Category 2 Harm at 37.53 kilograms) and significant role (expectation of significant financial advantage) and, as we have already said, she passed an immediate custodial sentence of 16 months’ imprisonment (after full credit).[8]Before doing so the judge considered whether or not it was appropriate to suspend such sentence, but ultimately concluded that the offending was so serious that only an immediate custodial sentence was appropriate. She stated in this regard:
“This is a very serious offence, and I am satisfied that the custody threshold has been passed in this case. Having taken into account the mitigating factors alongside the seriousness of the offence, had I been sentencing you after the trial, the sentence would have been two years’ custody. With credit of a third, that reduces it down to 16 months’ custody. I have then gone on to consider the issue of suspension and the factors that are relevant to that consideration. I accept that there are reasonable prospects of rehabilitation. I also accept that you are not a risk to the public. There has been no further offending since you have been on electronic tag, which I am told you have not breached. I also take into account R. v Ali and the impact of overcrowding on the burden of custody. Having said all of that, as I say, this is one of the very serious offences and I am nevertheless of the view that this offence is so serious that appropriate punishment can only be achieved by immediate custody.”
[9]The sole ground of appeal, and for which leave was granted, is that the judge fell into error by failing to apply the Imposition Guideline when deciding whether the term of imprisonment should be immediate or suspended.[10]We note, at the outset, as did the Single Judge before us, that there is no issue about the categorisation of sentence and the total term imposed. The only issue is as to whether the judge erred in principle in imposing an immediate custodial sentence rather than making a suspended sentence order or whether the sentence was manifestly excessive.[11]In the grounds of appeal, settled on behalf of the appellant, as developed before us by Mr Hashmi today, it was submitted that the judge erred in principle in failing to suspend the sentence, it being submitted (at [20] of the grounds):
“On the facts of the present case and the mitigation available to the appellant the Learned Judge fell into error in deciding not to suspend the custodial sentence imposed upon Ms Hubbard. There were sufficient mitigating factors to permit the Learned Judge to suspend the custodial sentence and her decision not to do so was wrong in law.”
[12]Reliance was placed on the observations of Spencer J (giving the judgment of the Court) in R v Qureshi [2021] EWCA Crim 831 at [19] to [26] as to the exercise to be performed when weighing the factors identified in the Imposition Guideline, and the case of R v Middleton [2019] EWCA Crim 663 and what was stated by Sweeney J at [27] to [29] (a case where, on the facts, the offending was so serious that only an immediate custodial sentence was appropriate).[13]Reference is also made to the new Sentencing Guideline for the Imposition of Community and Custodial Sentences Definitive Guidelines that was scheduled to come into effect on 1 April 2025. These include further guidance on the sentencing of female offenders and the consideration to be given in this regard to the impact of custodial sentences on female offenders. Like the single judge before us, we do not consider that it is appropriate to have regard to such guidelines and the guidance therein when they were not in force at the time of sentence.[14]We remind ourselves of what was said by this Court in the case of R v Price (Creddick) [2023] EWCA Crim 1060 at [12]:
“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 in so far 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. Weighting 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.”
[15]We are grateful to Mr Hashmi for the quality of his submissions. In the present case, whilst there were factors in favour of suspension including reasonable prospects of rehabilitation and the mitigation available to the appellant including remorse, positive character references and her poor mental health, there was to be set against that the very serious nature of the offending involving the fraudulent evasion of a prohibition of a large amount of cannabis with a street value of some £1.2 million, for financial gain. It was a matter for the judgment of the Judge to assess what weight was to be given to such competing factors.[16]The decision not to suspend the sentence in the present case was neither wrong in principle nor manifestly excessive, and the judge was entitled to conclude that the offending was so serious that only an immediate custodial sentence was appropriate.[17]Accordingly, the appeal against sentence is dismissed.