Attorney General's Reference Nos 83 & 85 of 2004

In sentencing substantial commercial supply of Class A drugs, the court should assess the quantity proved by the evidence and should not permit deliberate destruction of drugs to reduce the offender’s culpability. A plea tendered only after the prosecution abandons charges against another person does not attract full plea credit.

A commercial retailer dealing in a substantial quantity of cocaine is not a low-level addict dealer. A sentence around ten years before plea credit may be appropriate where aggravating features are present. On an Attorney General’s reference, however, serious and unexplained delay, coupled with an offender’s release, may make a custodial increase wrong despite the original sentence being unduly lenient.

The Attorney General sought leave under section 36 in relation to sentences imposed at Maidstone Crown Court on Matthew Gardner, Nadim Butt and Mohammed Afzal for Class A cocaine supply offences. The court adjourned Butt’s reference pending a proposed application for leave to appeal his conviction.

Gardner pleaded guilty on the first day of trial to four counts of possession with intent to supply. Butt and Afzal were convicted after trial of supplying, and being concerned in supplying, cocaine. The sentencing judge imposed four years’ concurrent imprisonment on Gardner and three years each on Butt and Afzal.

The central issues were whether the sentences were unduly lenient, the quantity of cocaine properly attributable to the transaction, the proper sentencing category for Gardner, and whether delay after Afzal’s release should prevent an increase.

1. The court granted the Attorney General leave to make the reference. The reference concerning Butt remained adjourned. Gardner’s reference succeeded: his concurrent four-year sentences were increased to six years. Afzal’s three-year sentence was unduly lenient, but the court declined to increase it.

2. For the supply transaction involving Butt, Afzal and Gardner, the proper finding was approximately 500 grams of cocaine at 100% purity. The £24,000 payment and the wholesale evidence supported that conclusion. It would be wrong for the washing away of part of the consignment to reduce the gravity of the offending.

3. Gardner was a commercial retailer, not a low-level dealer funding his own addiction. His possession of substantial quantities, including the consignment for which he paid £24,000, justified a sentence of about ten years before plea credit. His first-day-of-trial plea was conditional upon the prosecution dropping charges against his partner, so it did not justify full credit. Allowing about one year for the plea, and then allowing for double jeopardy and the delay in the reference, produced six years’ concurrent imprisonment.

4. Afzal could properly have expected a sentence in the region of eight years for his role in the substantial supply. Nevertheless, the unexplained delay meant that the reference was heard more than a year after sentence and several months after his release. In those circumstances, the court considered it wrong to require him to return to prison.

5. The court also rejected the submission that an undisclosed mitigating circumstance affecting one defendant could justify reducing the sentences of co-defendants in order to preserve confidentiality.

• Court of Appeal (Criminal Division): The court granted the Attorney General leave to make the sentencing reference. It increased Gardner’s concurrent sentences from four to six years, declined to increase Afzal’s sentence because of delay and his release, and adjourned the matter concerning Butt.
• Maidstone Crown Court: On 27 May 2004, Judge Neligan sentenced Gardner to four years’ imprisonment on each of four counts concurrently, and Afzal and Butt to three years’ imprisonment each.