Practice and Procedure


PUBLISHED October 29, 2003

Sentences of five years' and 30 months' imprisonment were unduly lenient and did not adequately reflect the offence of offering for supply Class A drugs, sentences had to reflect the sentences that would have been passed had the drugs actually been supplied.Application by the Attorney-General to refer under s.36 Criminal Justice Act 1988, sentences of five years' imprisonment for the first defendant ('R'), following conviction for supplying Class A controlled drugs, namely cocaine and ecstasy and offering for supply Class A controlled drugs, namely cocaine, and 30 months' imprisonment for the second defendant ('V') following conviction for offering for supply Class A drugs. The defendants pleaded guilty and were sentenced at Maidstone Crown Court on 15 April 2003. Police officers had mounted an undercover operation targeting the supply of drugs. They were introduced to R and V and between November 2001 and March 2002, R supplied cocaine and ecstasy tablets on four separate occasions. It was suggested by R that larger quantities of cocaine could be made available and it was at that stage that V became involved. There was an agreement that R and V would supply four kilos of cocaine at ?29,000 per kilo. R and V were subsequently arrested. R pleaded guilty on the basis that he was acting as a go between and was only paid £100 for each supply. The offering of drugs for sale was mere bravado, he had pretended to be in the position to supply the four kilos. V admitted assisting in trying to find the drugs to make good the offer. The Attorney-General referred the sentences as unduly lenient and contended that the sentence of five years appeared to be appropriate for the four offences of supplying drugs but took no account of the offer to supply cocaine. The starting point should have been the appropriate sentence had the offer been carried out and drugs supplied. Supply of four kilos of cocaine would have resulted in a sentence of between ten to fifteen years' imprisonment.HELD: (1) There could be no hesitation in saying the sentences were unduly lenient. The starting point for offering to supply drugs had to reflect the fact that, if carried out, the quantity of drugs provided would have been four kilos. Accordingly the starting point was a sentence in excess of ten years imprisonment. (2) That starting point should be discounted for pleas of guilty and reduced as the transaction was not completed. The extent of discount was dependent on the particular circumstances of the case and in the present case the evidence indicated the two defendants did not have ready access to quantities of cocaine but had to seek it out on the market. However, it was clear that they were prepared to find the cocaine and went to the market to do so. (3) It was necessary to provide significant deterrent sentences in cases such as the present one to prevent those who might be tempted to find drugs on the market in the first place and then supply them. (4) The sentence of five years reflected the offence of supply but provided no reflection of the criminality involved in the offence of offering the cocaine for sale. Taking into account the principle of double jeopardy the sentence of R would be increased to one of seven years' imprisonment and V's sentence would be increased to four years' imprisonment.Leave to refer granted, application allowed.

[2003] EWCA Crim 3202