Practice and Procedure


PUBLISHED November 18, 2003

When sentencing drugs offenders, a judge should generally follow the guideline cases, and any reasons for a substantial departure from them should be made clear in the sentencing remarks. Where no such reasons had been identified and lesser sentences extended beyond leniency to undue leniency in all the circumstances, then longer sentences could be substituted.Application for leave under s.36 Criminal Justice Act 1988 to refer sentences as unduly lenient. Four offenders ('H', 'R', 'A', and 'D') were convicted on 18 December 2002 of three offences of conspiring to supply drugs between 1 March 2001 and 17 November 17 2001. The drugs consisted of 26.9 kilos of cocaine (Count 1), 307,419 MDMA (ecstasy tablets) (Count 2), and 34.4 kilos of amphetamine (Count 3) in one consignment with a combined street value of approximately ?5 million. On Counts 1 and 2 H was sentenced to 14 years' imprisonment on each to run concurrently; R to 12 years' imprisonment on each to run concurrently; and both D and A to 11 years' imprisonment on each to run concurrently. On Count 3, each of the four offenders received a sentence of eight years to run concurrently. On a second indictment with three counts - being in possession of a firearm without a firearm certificate, being in possession of a silencer without a firearm certificate, and being in possession of ammunition without a firearm certificate - H was sentenced to two years' imprisonment for each count to run concurrently, making a total of 16 years. The offenders were part of a highly professional organisation in the UK and abroad, and each had played an important part in an operation involving a high degree of planning and sophistication. None had previous convictions for drug offences and A and D were of previous good character. The central figure ('J') had not been apprehended. The judge found H to be the next most important, with R not far below, and A and D one step further away than that. The offenders argued that, although the sentences appeared lenient in the light of guidance cases cited for the Attorney General (R v Aramah (1982) 4 CAR (S) 407 and R v Aranguren & Ors (1994) 99 CAR 347), the decision of a highly respected and experienced judge, practised in the field, who must have had those cases in mind and who must have had good reasons for the more lenient sentences, should not readily be disturbed.HELD: (1) Although the judge had carried out a careful sentencing exercise, and although a degree of flexibility had always to remain in the hands of the judge who had presided over a long trial, this was a field where the guideline cases (supra) had generally been followed as reference points for subsequent appeals. It was appropriate that they should generally be followed at least to the extent that if departed from to a substantial degree the reasons should be made clear in the judge's sentencing remarks. This judge had not identified any such reasons and the offenders had not persuaded the Court of Appeal that any existed. (2) The lesser sentences in this case extended beyond a mere matter of leniency and amounted to undue leniency in all the circumstances. (3) In the light of the element of double jeopardy, which the court took into account, the sentences of all four defendants were quashed and new sentences substituted as follows: for H, 17 years concurrent on Counts 1 and 2 plus the firearms sentences, which remained at two years concurrent, making a total of 19 years; for R, 15 years concurrent; and for A and D, 13 years concurrent in each case.Appeal allowed.

[2003] EWCA Crim 3185