Attorney General's Reference No. 110 OF 2004

A sentencing court should not treat a non-custodial sentence imposed for a separate offence as justifying a similar disposal for a serious drug offence where the earlier court dealt exclusively with the separate offence. In particular, no expectation of a non-custodial outcome arises unless the earlier proceedings created one.

Possession of a substantial quantity of heroin with intent to supply warranted immediate custody on the accepted facts. In reassessing an unduly lenient sentence, the court must give effect to the accepted basis of plea and the guilty plea, while recognising the importance of double jeopardy.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, the sentence imposed on Christopher Keylock at Gloucester Crown Court on 30 July 2004.

Keylock had pleaded guilty at the first opportunity to possessing 13.9 grammes of powder containing 39 per cent heroin with intent to supply. He said that he was holding the package for another person because of a debt and threats. The Recorder imposed 40 hours’ community service concurrently with a 120-hour community service order recently imposed at Salisbury Crown Court for theft.

The central issue was whether that non-custodial sentence was unduly lenient, particularly given that the Salisbury court had dealt only with the theft offence.

1. The Attorney General’s reference was allowed. The 40-hour community service order was unduly lenient. The court substituted a sentence of 18 months’ imprisonment.

2. The Gloucester Recorder had erred by linking the drug sentence to the earlier Salisbury sentence for theft. Salisbury Crown Court knew that the drug matter was pending, but had dealt exclusively with theft. Its order created no expectation, reasonable or otherwise, that the later drug offence would receive a non-custodial disposal.

3. The seriousness of possessing heroin with intent to supply required custody on the facts accepted for the guilty plea. The court nevertheless took account of the offender’s early guilty plea and the basis that he had held the package for another person after being threatened over a debt. Although the court expressed concern that the Crown had accepted that basis, it was bound to reflect it when fixing the proper sentence. It also recognised the importance of avoiding double jeopardy.

4. The offender was on conditional bail rather than at large. He was required to surrender at a police station by 4.30 pm that day; on surrender, the custodial sentence would begin immediately.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the sentence was unduly lenient and substituted 18 months’ imprisonment: [2004] EWCA Crim 3287.
• Crown Court at Gloucester: On 30 July 2004, Mr Recorder Still imposed 40 hours’ community service, concurrent with an earlier community service order for theft.