Afonso & Ors, R v

For an unemployed Class A drug addict who supplies solely to fund their own addiction, holds no stock, and makes only a few retail supplies to undercover officers, the usual tariff for commercial retail dealing is likely to be disproportionately high. The offender’s reduced culpability and the comparatively limited harm must be reflected in sentence.

If a drug treatment and testing order is unsuitable, a first adult supply offence in that category should ordinarily attract a short custodial sentence. Following an early guilty plea, the appropriate range will generally be about two to two-and-a-half years’ imprisonment; a young offender will usually receive less. Revised tariff guidance does not itself justify an out-of-time sentence appeal or a Criminal Cases Review Commission reference.

Three offenders appealed sentences imposed after guilty pleas to supplying Class A drugs. Each had supplied undercover police officers, was addicted to Class A drugs, and had no previous drug convictions. None wholly fell within the narrow addict-supplier category addressed by the court: Afonso and Sajid had supplied more than one Class A drug, Andrews had access to stock, and Sajid also relied on disparity with his co-accused.

The appeals came respectively from Peterborough Crown Court, Warwick Crown Court and Bury St Edmunds Crown Court. The central issue was the proper sentencing approach to addicted retail suppliers and whether the individual sentences properly reflected the appellants’ roles, addiction, pleas and personal mitigation.

1. All three appeals were allowed. The court gave revised guidance for a confined class of Class A drug supplier. The established sentencing levels for commercial suppliers who hold stock and repeatedly supply drug users remained unaffected.

2. The revised approach applies to an unemployed addict whose sole motive is to finance their own addiction, who holds no stock, and who is proved to have made only a few retail supplies to undercover officers. Such offending ordinarily involves lower culpability than commercial supply. Its demonstrated harm is also comparatively slight because the supplies are confined to police officers. The approximately six-year post-trial level indicated by Djahit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (S) 37 was therefore disproportionate for that category.

3. A drug treatment and testing order may be appropriate in the circumstances addressed in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106. If it is not appropriate, an adult first offender within the defined category should ordinarily receive a short custodial term after trial. An early guilty plea should generally result in a sentence of about two to two-and-a-half years. The term for a young offender is likely to be lower.

4. The court confirmed that a review of sentencing tariffs does not make this judgment a basis for out-of-time sentence appeals or references by the Criminal Cases Review Commission, consistently with Graham [1999] 2 Cr App R (S) 312.

5. Afonso’s concurrent five-year sentences for supply were reduced to three-and-a-half years. Sajid’s concurrent sentences of three years and three months were reduced to two-and-a-half years because of his subsidiary role, limited record and disparity with Jamil. Andrews’ concurrent five-year sentences were reduced to four years, reflecting his late plea, good character and addiction, while recognising his access to stock. A defendant who delays admitting guilt to investigate the strength of the prosecution case cannot expect the same guilty-plea discount as one who pleads at the first reasonable opportunity.

1. Court of Appeal (Criminal Division): In [2004] EWCA Crim 2342 , all three sentence appeals were allowed and substituted concurrent custodial terms were imposed.

2. Peterborough Crown Court: Afonso pleaded guilty and received concurrent five-year sentences for supplying heroin and crack cocaine.

3. Warwick Crown Court: Sajid pleaded guilty and received concurrent sentences of three years and three months for supplying heroin and cocaine.

4. Bury St Edmunds Crown Court: Andrews pleaded guilty on rearraignment and received concurrent five-year sentences for supplying cocaine.