When might a custodial sentence of less than two years be suspended?

R v Kyle Reece Collins [2022] EWCA Crim 1781

In R v KRC, the Court of Appeal gave important guidance as to when a custodial sentence for less than two years might be suspended.


The appellant pleaded guilty to possession with intent to supply a Class A drug and was sentenced to 18 months’ detention in a Young Offender Institution (YOI). He was 18 years old at the time of the offence, he had previous convictions but none were for drug-related offences and he had never received a custodial sentence.

There was no question about the categorisation of the offence and the corresponding length of the sentence imposed. The sole ground of appeal was that the immediate custodial sentence imposed on the appellant should have been suspended.

The judge dismissed the appeal, finding that even though there were mitigating factors in the case, the sentence could not be characterised as wrong in principle. The appellant’s strong mitigation included his relatively young age and maturity and the fact that he had been exploited. It was held that the Crown Court judge was entitled to take the view that the offending was so serious that appropriate punishment could only be achieved by immediate custody.

In its judgment, the Court of Appeal provided guidance as to how the various factors should be weighed when deciding whether to suspend a custodial sentence of under two years as follows:

  • the judge should first consider the definitive guideline of the Sentencing Council on the Imposition of Community and Custodial Sentences;
  • the judge should also take into account all factors available both in favour of and against suspending the sentence; there is no requirement for a formulaic approach;
  • the judge should also consider whether the crime was so serious, that appropriate punishment can only be achieved by immediate custody; and
  • having considered the Sentencing Council guidelines, all available factors and the seriousness of the crime, the judge will reach their conclusion regarding suspending the sentence or sentencing to custody.

In addition, the judge, in their sentencing remarks, is simply required to address the issue without the need to resort to elaborate analysis and/or explanations.


This decision serves as a useful commentary on the use and limits of the Sentencing Council guidelines; the simple fact that a custodial sentence of under two years is imposed, in addition to the existence of certain mitigating factors, does not mean that it is wrong in principle for a judge not to suspend that sentence. Rather, that is for the courts to decide based on all available factors as well as the seriousness of the crime committed.

In the case at hand, despite a number of mitigating factors, the Court of Appeal found that the sentence rendered by the Crown Court could not be characterised as wrong in principle and dismissed the appeal.

Unfortunately, it seems that arguments regarding maturity and exploitation were not sufficient in this instance to persuade the Judge in favour of a suspended sentence.  This judgement demonstrates that there is still a long way to go in terms of the weight that sentencing Courts give to maturity arguments when dealing with young adults.  It seems unlikely that this appellant would have received a significant custodial sentence had it occurred one year earlier, when he was technically a child.  Despite the recognition of the fact that age and lack of maturity are factors that can affect both the offender’s responsibility for the offence and the effect of the sentence on the offender[1] by the Sentencing Council and case law which suggests otherwise[2], turning 18 can still represent a proverbial “cliff edge” for young adults in the criminal justice system. For further information about how to effectively present maturity arguments when representing young adults, please refer to Turning 18 legal guide and this legal update.

Written by

Lorenzo Colombi-Manzi, Associate, Paul Hastings LLP

[1] ‘General Guidance: Overarching Principles’, section entitled ‘Age and/or lack of maturity’, Sentencing Council Guidance

[2] R v Clarke [2018] EWCA Crim 185