Attorney General Reference No 11 of 2004

On a reference under section 36 of the Criminal Justice Act 1988, a sentence may be unduly lenient without being increased. The court must separately exercise its discretion whether to interfere. It may allow for double jeopardy and the consequences of returning an offender to custody after release. It may also take account of genuine post-release rehabilitation and the difficulty of altering one sentence imposed within a wider, related sentencing exercise.

Repeated involvement in supplying Class A drugs over a month is not merely technical offending, even where the offender is drug-dependent, the quantities are small, and the purpose is to obtain discounted or free drugs.

The offender pleaded guilty at Liverpool Crown Court to being concerned in the supply of crack cocaine and to three further supplies of crack cocaine or heroin. Each supply was to an undercover officer during a police operation. The offences occurred on four occasions over about one month.

The offender was a drug user who acted as an intermediary in pooled purchases. He obtained a discount or free drugs, rather than acting as an ordinary commercial dealer. Judge Holloway imposed concurrent sentences of five months’ imprisonment, deliberately enabling the offender’s immediate release.

The Attorney General obtained leave to refer the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the Court should increase a sentence that was acknowledged to be unduly lenient.

1. Leave was granted and the sentence was held to be unduly lenient, but the Court did not increase it. The repeated supplies of Class A drugs were not cases of merely technical guilt. The offender had participated in four supplies over a month and had obtained a benefit by reduced-cost or free drugs.
2. The sentencing judge had materially relied on R v Denslow, [1998] Crim LR 566. That authority was materially different. It concerned one occasion of possession and did not govern repeated participation in supplying drugs to others. The Court expected that, at first instance, a concurrent custodial sentence of about 18 months to two years would have been appropriate.
3. Nevertheless, the Court retained a discretion under the reference procedure. Any substituted sentence required a reduction for the double-jeopardy element inherent in sentencing the offender again. A further reduction was required because the original sentence had secured his immediate release and an increase would return him to prison.
4. The offender’s constructive progress after release also weighed against intervention. He had engaged with drug-dependency services, received support and counselling, worked diligently at his hostel, and assisted another resident.
5. The Court also attached significance to the wider context. The same judge had sentenced 43 defendants arising from the operation, with sentences ranging from 18 months to five and a half years. Without details of those cases, it was especially difficult to alter this one sentence in isolation.

Accordingly, although the sentence was unduly lenient, the Court exercised its discretion not to interfere.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, but declined to vary it.
• Liverpool Crown Court On 12 January 2004, Judge Holloway imposed concurrent sentences of five months’ imprisonment for four Class A drug-supply offences.