R v Ricky Sani Riberio

Lord Justice Singh : Introduction

1. On 12 June 2025 the appellant, now aged 26, was sentenced by HHJ Weekes at the Crown Court at Southwark to two concurrent sentences of 3 years and 2 months’ imprisonment for two counts of being concerned in the supply of a controlled drug of class A, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

2. He now appeals against that sentence with the leave of the single judge. The Facts

3. On 12 September 2024, in different proceedings, the appellant was sentenced by Ms Recorder Livesey to 2 years and 4 months’ imprisonment for his involvement in operating a drugs line know as the “Riley” line between October 2023 and February 2024. This was a drugs line offering Class A drugs. He had been arrested in June 2024 in relation to that matter and released on bail.

4. When he was bailed, he almost immediately began committing the offences in relation to this matter by operating a drugs line known as the “Alfie” drugs line. This was a drugs line sending bulk messages advertising the sale of heroin and cocaine. He was arrested in relation to the Alfie line on 30 July 2024. He was, again, released on bail.

5. He began dealing in drugs almost immediately upon release. This line (not given a name) operated between 1 August 2024 until he was sentenced for the “Riley” line offences on 12 September 2024.

6. The indictment upon which he was sentenced in the present proceedings represented his conduct in operating the Alfie line from early July 2024 until the end of July 2024, and his subsequent operation of the further unnamed line from 1 August 2024 until his sentence for operating the Riley line on 12 September 2024. Accordingly, both counts (one in relation to crack cocaine and the other heroin) covered the period between 30 June 2024 and 11 September 2024.

7. The appellant was postally requisitioned in relation to these matters whilst serving his sentence for the Riley line offences on 25 February 2025, appearing at a plea and trial preparation hearing (PTPH) on 15 May 2025. He did not enter a plea on that date but it was known from 22 May 2025 that he would plead guilty. The sentence

8. In his sentencing remarks the judge first set out the circumstances of the appellant’s involvement in the Riley drugs line.

9. The judge went on to comment that he had not found the earlier Recorder’s sentence “easy to follow” saying that the earlier sentence had been “lenient, even very lenient” whilst noting that no proceedings before this Court had been instigated in relation to that matter. The judge then indicated that, had he been passing sentence for the earlier matter, he would have imposed a sentence of 40 months, not 28 months. He then said that, had he been sentencing for all matters, he would have imposed a total sentence of 5 years and 6 months or, as it was put: “a total of 12 months or so longer than for the first matter alone, to mark the fact of the two cases and that there were some unattractive further additional aggravating features in the second.”

10. After further comment about the level of credit available for the current matters the judge, acceding to a submission that there should be 25% credit, arrived at an overall sentence of 4 years and 4 months (52 months), apparently comprising the notional 40 months which he would have imposed for the original matters and a further 12 months for the current matters. In later remarks he reduced the sentence by a further 2 months. This was said to be: “…as something of an act of mercy, rather than because I consider fairness really dictates it, I am prepared to make an allowance for the period between when you indicated you would plead guilty and today, a period of around six weeks, for which I shall reduce the sentence by two months for round figures.”

11. This gave a final sentence for the Alfie line matters of 38 months’ imprisonment. Although this was described as being concurrent to the sentence imposed for the Riley line offences, as the appellant was due to be released from the Riley line sentence within 24 hours so (by operation of section 5 of the Sentencing Act 2020, or the Sentencing Code) the sentence took immediate effect and was, for practical purposes, consecutive to the earlier sentence.

12. The judge then considered various other submissions which had been made. It had been submitted that the judge should take the earlier sentence as his “base sentence” without reference to his own views that this sentence was “lenient, even very lenient”. It had been submitted that, if the judge felt that a 12 month uplift was sufficient, then 12 months was the appropriate additional sentence for the current matters. The judge did not accept this submission, suggesting that, had all matters been before the Recorder in relation to the Riley matters, that judge would have been likely to treat the Alfie matters as the lead offending and uplifted that sentence by 12 months. We understand the judge to be saying that, because he was sentencing for what turned out to be the lead offence, he was entitled to fix an overall sentence which did not take account of the original sentence. The judge commented that, in his view, the earlier judge “took too low a sentence”. The grounds of appeal

13. In the grounds of appeal and before us, Ms McAddy argued that the judge did not give effect to the principle of totality by failing to make any adjustment to the sentence to reflect that the appellant had already been sentenced for the earlier part of the offending. It is argued that the judge ought to have started with the earlier sentence and then added only that which the earlier judge would have added if he had been aware of both matters.

14. In the alternative, it is contended that the judge should have adjusted the sentence downwards to take account of the fact that both matters should have been sentenced together and that the appellant had been deprived of the opportunity to accrue time in custody for the Alfie matter. This is on the basis that any sentence on the Alfie line matter would have been concurrent with the sentence on the Riley line matter.

15. Ms McAddy argued before us that the sentence imposed in relation to the Riley line had not been the subject of a reference by the Attorney General to this court. That being the case, it was not appropriate for the judge to ignore that earlier sentence and, in effect, increase it.

16. Ms McAddy also submitted that the sentence, however it was constructed, was manifestly excessive. A sentence of 5½ years was the equivalent of a notional after trial sentence of 7 years and 4 months, which was simply too long.

17. Ms McAddy asserts that the Crown knew that there were other proceedings pending and failed to tell the court or the Defence. The response

18. In written submissions for which we are grateful, the respondent states that the Crown was not aware of the Alfie line when the Riley line matters were sentenced. They say that, on 19 September 2024 they knew that the appellant was under investigation but did not have evidence upon which to charge, as the drugs expert had not yet reported on the material which had been taken from the appellant. They point out that the appellant could have told his counsel what the examination of this phone seized on 30 July 2024 would have revealed. He could have further accelerated matters by admitting his involvement in the Alfie line at the first opportunity. We do not consider that this is relevant to these proceedings. The appellant does not argue that any conduct on the part of the Crown could justify a reduction in the sentence.

19. The respondent asserts that the sentence passed in this case was a proper reflection of the overall conduct. They challenge the assertion that, had all matters been sentenced together, the Alfie line matters would not have led to a significant increase in the overall sentence. They refer to section 64 of the Sentencing Code, which provides that, where an offence is committed on bail, that must be treated as an aggravating feature.

20. The respondent correctly points out that the Alfie and Riley lines do not overlap. Indeed, there is a gap between February 2024, when the appellant stopped operating the Riley line, and late July or early August 2024 when he began operating the Alfie line. Furthermore, the respondent points out that the Alife line offending was more serious because it offered two different Class A drugs and was committed while the appellant was on Crown Court bail for near identical offending.

21. Thus, the respondent argues, the overall sentence imposed in the present proceedings was neither manifestly excessive nor wrong in principle. Relevant principles

22. Section 36 of the Criminal Justice Act 1988 (“the 1988 Act”) sets out the power of the Attorney General to refer a case to the Court of Appeal, with the leave of this Court, where it appears to the Attorney General that the sentencing of a person in the Crown Court has been unduly lenient. In the present case there was no application made to refer the earlier sentence by the Recorder to this Court under section 36 of the 1988 Act.

23. Unsurprisingly, the Sentencing Council’s sentencing guideline for use in the Crown Court, “Totality”, effective from 1 July 2023, does not include guidance on whether, in applying the principle of totality, a judge may consider that a sentence already being served is unduly lenient.

24. Accordingly, we consider that, as a matter of principle, where there has been no reference to this Court, the sentencing court on the second occasion must proceed on the footing that the sentence passed on the earlier occasion was the correct sentence and cannot question it as being unduly lenient.

25. More generally, with regards to the situation where an offender is serving a determinate sentence and the instant offences were committed after the offences sentenced earlier, the Totality guideline states: “Generally the sentence will be consecutive as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Where a prisoner commits acts of violence in prison custody, any reduction for totality is likely to be minimal.”

26. Where the court is sentencing for offences committed prior to other offences for which an offender has been sentenced, the Totality guideline states: “The court should first reach the appropriate sentence for the instant offences, taking into account totality in respect of the instant offences alone. The court then has a discretion whether to make further allowance to take into account the earlier sentence (whether or not that sentence has been served in full). The court should consider all the circumstances in deciding what, if any, impact the earlier sentence should have on the new sentence. It is not simply a matter of considering the overall sentence as though the previous court had been able to sentence all the offences and then deducting the earlier sentence from that figure. [The guideline then provides a non-exhaustive list of circumstances to be taken into account].”

27. Archbold, Criminal Pleading Evidence and Practice (2026 ed)., at para 5A-198, suggests that, where an offender is already serving a determinate sentence, the court should take the following approach to determining the new sentence to be imposed: “The Sentencing Council guideline on totality (§ SI-31 in the Sentencing Guidelines Supplement) requires that where an offender is already serving a determinate sentence the court consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, an adjustment should be made to the sentence imposed for the latest offence. It is submitted that in this regard the best approach to take will be to calculate the term the court would impose if it had dealt with the offences at the same time, remove the sentence imposed previously and then impose the remaining amount consecutive to the sentence being served. The problems created by imposing sentences concurrently are demonstrated by Pidgeon [2017] EWCA Crim 538; [2017] 2 Cr. App. R. (S.) 43: where imposing a sentence concurrently the court will need to reflect the impact of release provisions; the reduction to the overall sentence should be double the time that has been served since the imposition of the first sentence. Taking an example if the judge would have passed a 5 year sentence if they were to have sentenced both offences at once, and the offender has already served 1 year on the sentence currently being served, the new sentence should be reduced by 2 years and a sentence of 3 years should be imposed.”

28. R v Thompson [2012] EWCA Crim 1764 concerned sentencing for a second set of offences, where these would have been dealt with at the same time as earlier offences, if they had been known about at that time. The defendant had been sentenced for burglary and theft, and was later sentenced for six more instances of theft and 68 offences taken into consideration. The defendant admitted these offences as part of a police exercise of clearing up unadmitted offences. In a judgment given by Hughes LJ, this Court quashed the sentence passed by the Recorder on sentencing for the later offences, on the basis that it was manifestly excessive. The Recorder’s error was in calculating the reduction for a guilty plea. There was no suggestion (as in the present case)that the Recorder had considered that the original sentence for burglary and theft was wrong. The Court of Appeal held that the best approach was to ask what sentence would have been imposed if all matters had been dealt with on the first occasion. It suggested that the correct approach would be as follows (at para 13): “We think that the best way to approach the rather complicated arithmetic in a case like this is to ask what sentence would have been imposed if this exercise of clearing up unadmitted offences had been done before rather than after he appeared in court on 2nd December 2011. The sentence imposed in December 2011 for the limited offences which were then known was 32 months on a plea of guilty or four years after trial. It seems to us that if he had been dealt with for all the offences at that time, it would have resulted in a sentence of about three years four months — in other words about five years had it been a trial. It might have been up to five-and-a-half years after a trial, but that is about as much as it could have been. What it could not have been is seven-and-a-half years after trial, which is the equivalent of the sentence that the Recorder has passed.”

29. In R v Pidgeon [2017] EWCA Crim 538; [2017] 2 Cr. App. R. (S.) 43an offender had been convicted of conspiracy to steal and was sentenced to four years’ imprisonment. He had served his full custodial term and was then held in prison awaiting trial in respect of conspiracy to rob. When sentencing for the conspiracy to rob, the trial judge sought to deduct the time already spent in custody from that which the offender would serve. However, he did this by taking the time spent in prison into account and pronouncing a lower overall sentence (rather than pronouncing sentence and then acknowledging that the offender had in effect already served part of it). In a judgment given by Langstaff J, this Court held that the judge’s approach was wrong, because of the effect of the early release provisions.

30. The issue in Pidgeon is best demonstrated by the example given by the Court at paras 2-3: “2. Thus, where a sentence is (for the sake of example) one of five years in length and a court decides that two years served in respect of an intervening sentence should count against it, this will leave only six months of time to be served inside prison. By contrast, if the judge were to express the sentence as one of three years’ imprisonment, intending that the two years served should count, and reflecting this by reducing the overall length of the later sentence, then, because the sentence would take effect from the day it was passed, the offender would spend 18 months in actual custody. He would expect to serve half of the three-year sentence inside and the balance on licence.

3. The difference between these two ways of approaching the giving of credit for time already served is clear. So too is the reason: in the first example, where the result is that the offender serves six months in prison, it is as if the two years served in prison counts day-for-day; in the second, the judge has not recognised it as time to be served inside prison but treated it as part of the computation of the years he will pronounce as a sentence, with the result that each year already served inside only counts for six months’ credit against the new sentence.”

31. R v Pidgeon therefore concerns the correct steps to follow when calculating sentence to ensure that time spent in custody serving a different sentence is taken into account as intended, rather than the question whether the early release provisions should be taken into account when determining the correct sentence as a matter of principle. It is therefore consistent with the well established principle that, in general, matters of early release, licence and home detention curfew should normally be left out of account when sentencing.

32. In Patel [2021] EWCA Crim 231; [2021] 1 WLR 2997, in a judgment given by Dame Victoria Sharp P, this Court summarised the case law as follows (at paras 24 to 26): “

24. In R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 the claimant sought judicial review of the early release regime introduced by the Terrorist Offenders (Restriction of Early Release) Act 2020 , contending that it was incompatible with articles 5 , 7 and 14 of the ECHR . The claim was dismissed. At para 121 Garnham J, giving the judgment of the court (Fulford LJ and Garnham J) distilled the following principles from the decisions in Bright and Round :” “(i) The early release arrangements do not affect the judge's sentencing decision. “(ii) Article 5 of the [ECHR] does not guarantee a prisoner's right to early release. “(iii) The lawfulness of a prisoner's detention is decided, for the duration of the whole sentence, by the court which sentenced him to the term of imprisonment. *3013 “(iv) The sentence of the trial court satisfies article 5(1) throughout the term imposed, not only in relation to the initial period of detention but also in relation to revocation and recall. “(v) The fact that a prisoner may expect to be released on licence before the end of the sentence does not affect the analysis that the original sentence provides legal authority for detention throughout the term.”

25. This represents an extensive, consistent and binding body of authority, rooted in principle, that has been considered and endorsed by the Supreme Court. It is based on the different roles played by the judiciary and the executive. It recognises the different considerations that influence, on the one hand, individualised sentencing decisions, and, on the other hand, generally applicable statutory early release provisions that reflect broad government policy. The approach of leaving release provisions out of account when setting the sentence has been applied even where that might be said to cause a harsh effect in an individual case. It has been applied where the results are anomalous, and where (as in Dunn (Tony) [2012] EWCA Crim 419 ) that is directly contrary to the intention of the sentencing judge and contrary to an expectation raised in the offender by the sentencing judge, and where (as in Francis [2014] EWCA Crim 631 ) a delay to the sentencing hearing beyond the control of the appellant has resulted in a change to the applicable provisions.

26. It follows that there is ordinarily no scope for sentencing judges to take account of the early release provisions when assessing the appropriate sentence.” Discussion

33. We acknowledge that the sentencing judge in the present case was faced with a difficult task. This case is an illustration of why it is better, if possible, for all matters to be sentenced at the same time and, if not heard at the same time, to heard by the same judge. We accept that the Crown may not have been aware of sufficient information to seek adjournment of the Riley line matter. We do not know what practical considerations may have made it difficult for the original judge to return to deal with this appellant in relation to the Alfie line matters. We have no doubt that this was considered and acknowledge that the judge was clearly doing his best to get on and deal with this case in difficult circumstances.

34. However, we are concerned about the judge’s approach to the earlier sentence of the Recorder. Having candidly expressed his disagreement with the earlier sentence, the judge set about constructing a sentence which paid no regard to it. That had the practical effect of re-sentencing the appellant for the earlier matter without regard to the sentence already imposed.

35. The judge was not seised of the Riley line matter. However, in deciding what, in his view, the correct sentence would be for both matters and then deducted the previous (in his view) wrongly lenient sentence from the total, in effect he re-sentenced for that earlier matter. This had the effect of increasing a sentence which had not been challenged in an application for leave made to this Court by one of the Law Officers under section 36 of the Criminal Justice Act 1988. The judge thereby by-passed all of the protections which defendants enjoy before a sentence can be increased. That was wrong in principle.

36. So, we ask ourselves, what was the correct approach of the judge? It was not, as the appellant submits, to consider: “what additional sentence the Recorder sentencing on that date would have imposed, had she been aware of both indictments.” It would be undesirable, even if it were practical, for the judge on the second occasion to try to predict what the earlier judge would have done.

37. Neither was it, as the respondent submits, to have regard to the overall offending. This carried the risk, as we have set out, of re-sentencing more harshly a previously imposed sentence which had not been referred to this Court.

38. The judge’s task here was rather to determine what sentence he felt was just and proportionate for the Alfie line offending, taking into proper account the sentence that had already been passed by the Recorder for the earlier offending.

39. Had these matters been sentenced together, there would no doubt have been concurrent sentences with one set of sentences (probably those in relation to the Alfie line) being designated as the lead offence but being suitably adjusted to take account of the overall gravity of the offending as a whole. Here that cannot be done, so we must consider the appropriate consecutive sentence to be imposed for the Alfie line offending without reference to our views of the leniency or otherwise of the previous sentence.

40. Had the Alfie line matters been sentenced separately they would have been within category 3/significant role. By reference to the definitive guideline on drugs offences, this gives a starting point of 4 ½ years custody, with a range of between 3 ½ and 7 years. The aggravating features include that the offences were committed on bail for similar offending and included offering two types of drug for sale. In our view, the sentence after trial would have been of the order of 5 years and 4 months’ imprisonment. Reducing that for 25% credit the sentence would have been 4 years. We note that, according to the guideline, any adjustment for totality is made after credit for a plea so we then consider totality.

41. We remind ourselves of the Totality Guideline and the principle that an overall sentence should: “reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the offender; and be just and proportionate.”

42. The guideline reminds us that if sentences are consecutive to each other, it will usually be: “impossible to arrive at a just and proportionate sentence simply by adding together notional single sentences. Ordinarily some downward adjustment is required.”

43. Given the close association in time and type between these two sets of offences the discount must be very considerable. Taking into account all of the circumstances, and mindful of the credit to be afforded for his guilty plea, the correct sentence is one of 24 months. Conclusion

44. We reduce the sentence imposed on both counts from 3 years and 2 months’ imprisonment to 2 years’ imprisonment (concurrent). To that extent this appeal is allowed.