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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hajdaraj, R. v [2025] EWCA Crim 443 (12 March 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/443.html
Cite as: [2025] EWCA Crim 443

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Neutral Citation Number: [2025] EWCA Crim 443
CASE NO 202403009/A3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LUTON
MR RECORDER JOHN LAW 40AD1104223

Royal Courts of Justice
Strand
London
WC2A 2LL
12 March 2025

B e f o r e :

LORD JUSTICE EDIS
MRS JUSTICE STACEY
HIS HONOUR JUDGE LOCKHART, K.C.
The Honorary Recorder of Coventry
(Sitting as a judge of the Court of Appeal Criminal Division)

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REX

- v -

SHKELZEN HAJDARAJ

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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MS L WILLOCX appeared on behalf of the Appellant.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MRS JUSTICE STACEY:

  1. With leave of the single judge, the appellant appeals the sentence imposed on 24 July 2024 by Mr Recorder John Law in the Crown Court at Luton of an 18-month community order with a 180 hours' unpaid work, 25 rehabilitation activity requirement days and 6 months of GPS trail monitoring. The appellant had pleaded guilty three weeks before trial to the offence he had been charged with of being concerned in the production of the Class B drug of cannabis.
  2. On 18 February 2023, the police searched a property in Sundon Park Road, Luton, and found it was being used as a cannabis factory with 42 separate plants in bud. Three men fled the property, including the appellant and his brother, Shpetim Hajdaraj, who both jumped out of a first floor window. The police officers gave chase but did not initially catch them. The appellant was apprehended in an alleyway after a short chase. His brother too was apprehended an hour and a half later when he returned to the property and attempted to drive off in a silver BMW 3 series vehicle parked outside the house.
  3. The cannabis plants found in the property had a wholesale value of between £6,000 and £20,000. The appellant's basis of plea, which was accepted by the prosecution, was that he had been brought to the house three to four days prior to his arrest and had been put under pressure by others to cut the cannabis but beyond that had had no further involvement in the operation. He was 31 years old at the time of the offence and had been in the UK for 3 to 4 months prior to his arrest. He had arrived in a small boat across the channel. He did not have any form of leave to remain in the United Kingdom, no right to work in this country nor recourse to public funds and, prior to his arrest, had not applied for asylum or immigration status in this country and, as far as we know, that remains the case.
  4. He was initially on bail with a number of conditions including a qualifying tagged curfew from 9.00 pm to 6.00 am daily. 228 days later, in November 2023, bail was withdrawn and he was remanded in custody as he had been arrested for driving whilst disqualified, driving without insurance, failing to provide a specimen and possession of the Class A drug of cocaine. For those offences he was sentenced to 28 days' imprisonment by East Kent Magistrates' Court in Margate on 25 January 2024. He then remained in custody after completing that sentence awaiting trial for these offences.
  5. He had been remanded in custody in respect of this offence for a total of 247 days at the date of sentence and pursuant to section 325 of the Sentencing Act 2022, would normally expect to receive credit of 114 days in respect of the qualifying tagged curfew and had thus served the equivalent of a 23-month sentence at the date of sentence.
  6. A pre-sentence report proposed an alternative to immediate custody of an 18-month community order, with 25 Rehabilitation Activity Requirement ("RAR") days, 200 hours' unpaid work and a GPS trail monitoring for 6 to 9 months.
  7. The Recorder found that under the Sentencing Council Guidelines, given the quantity of cannabis plants the offence was at the higher end of category 3 Harm, with a lesser role category C culpability as the prosecution accepted that the appellant had performed a limited role under direction for a period of only a few days and had become involved under pressure. The guidelines provide a post-trial starting point of a high-level community order with a range from a low-level community order to 26 weeks' imprisonment.
  8. The Recorder found that there were aggravating features of the previous convictions of both driving matters and possession of cocaine but since they were committed after these offences he considered it made them less of an aggravating feature. There were no mitigating features but he noted the pre-sentence report author's view that the appellant would benefit from assistance with rehabilitation. He also noted the qualifying curfew days and time spent on remand. However, he did not make a downward adjustment to the starting point for mitigation and remained of the view that a high-level community order would be appropriate and then gave 15 per cent credit for the late guilty plea. The recorder reached a final sentence and imposed a community order of 18 months with three requirements - 25 RAR days to assist with rehabilitation and the appellant's stated desire to live an honest and legal life in this country; 180 hours' unpaid work and the GPS trail monitoring for 6 months to enable probation to monitor his movements and support his rehabilitation and as a deterrent to deter him to a return to criminality.
  9. His brother, Shpetim, was due to be sentenced on the same day but did not attend court. A warrant for his arrest was issued and the case transferred to Snaresbrook Crown Court where he faced other matters. There is no record of the warrant ever being executed or of his yet having been sentenced.
  10. The grounds of appeal

  11. In admirably clear and succinct written and oral submissions, Ms Willocx argued that the sentence was either manifestly excessive or wrong in principle, since by spending over 7 months on remand and 228 days on qualifying curfew, the appellant had already served the equivalent of more than a 22-month prison sentence which, bearing in mind the early release provisions, is four times longer than the top end of the range for category 3C offences of 26 weeks' imprisonment under the guidelines.
  12. Analysis and conclusions

  13. Although time spent on remand does not automatically count towards a sentence consisting of a community order (see section 149 of the Criminal Justice Act 2003), a community order is a form of punishment and has a real impact on the offender's liberty (see R v Hemmings [2007] EWCA Crim 2413 at [6]). Where a defendant has already spent significant time on remand it may be inappropriate to impose further punitive elements in a community order (see, for example, R v Pereira-Lee [2016] EWCA Crim 1705 at [22] and Hemmings above). The issue is more nuanced when it comes to the rehabilitative requirements as opposed to punitive requirements of a community order: a court is not precluded from imposing the former in a community order where a defendant has already spent significant time on remand (see R v Rakib [2011] EWCA Crim 870). Cases will always be specific to their facts and context.
  14. In this case the unpaid work is a punitive measure. So too is the GPS trail monitoring, since it restricts his privacy and freedom of movement. All requirements of the community order are mandatory and failure to comply with any aspects risks breach proceedings and further sanctions. The appellant has already experienced a punishment which greatly exceeded the maximum for the offence, some punitive measures inb the community order and risked further punishment from any breaches.
  15. We accept Ms Willocx's submissions that the sentence was manifestly excessive. One might think that in light of the time spent on remand and the qualifying tagged curfew, the proper sentence would have been a short period of imprisonment - perhaps 22 weeks (calculated as a notional 26 weeks after trial, at the top of the range for 3C, less 15 per cent credit for guilty plea). That would have been time served by the date of sentence. We also note that it would have attracted post-sentence supervision which would have provided rehabilitative support and a degree of monitoring by the Probation Service post-release.
  16. However, if we were to quash the high-level community order and substitute a short term of imprisonment, we would be dealing with the appellant more severely than he was dealt with by the Crown Court, which is prohibited by section 11(3) of the Criminal Appeals Act 1968. We have recently received an update from the Probation Service, which shows that the appellant's response to the community order has been lamentable. Disappointingly he has not taken advantage of the rehabilitative opportunities and assistance presented to him by the Probation Service. Given his poor compliance there will be no disadvantage to him for his RAR days to be cancelled.
  17. We therefore allow the appeal, quash the sentence imposed and substitute it with a conditional discharge for a period of 6 months, pursuant to section 80 of the Sentencing Act 2020 which has thus now expired. The correct figure for the victim surcharge for a conditional discharge is now £26.


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