Attorney General's Reference No. 42 OF 2005

A drug treatment and testing order must remain proportionate to the offender’s criminality. Its rehabilitative value cannot outweigh the need for a custodial and deterrent sentence where serious commercial street-level supply of Class A drugs is established.

For such offending, the scale and nature of the dealing are material to sentence. A term in the established custodial bracket may be reduced when an unduly lenient community sentence is replaced under Criminal Justice Act 1988, to reflect the double jeopardy and shock caused by the substitution.

The Attorney-General referred, under section 36 of the Criminal Justice Act 1988, concurrent 12-month drug treatment and testing orders imposed at Reading Crown Court.

The offender had been convicted after trial of possessing heroin, cocaine and ecstasy with intent to supply, and of simple possession of a substantial quantity of heroin. The drugs, cash and dealing paraphernalia were found during searches of his home and car. He subsequently disclosed a serious drug addiction and showed motivation to undertake treatment.

The central issue was whether the community orders were unduly lenient, having regard both to rehabilitation and to the gravity of commercial Class A drug dealing.

1. The court allowed the Attorney-General’s application under section 36 of the Criminal Justice Act 1988. The concurrent drug treatment and testing orders were unduly lenient and had to be replaced by custodial sentences.

2. The offences were serious commercial street-level drug dealing. Although the offender’s addiction and prospects of rehabilitation were relevant, they could not justify a drug treatment and testing order which failed adequately to reflect the gravity of supplying Class A drugs, the societal harm they caused, and the need for deterrence.

3. The court applied the sentencing bracket identified in R v Twisse [2001] 2 Cr App R(S) 9. It also treated the scale and nature of dealing as material, consistently with R v Afonso [2004] EWCA Crim 2342. The guidance in Attorney-General's Reference No 66 of 2003 [2003] EWCA Crim 3514 confirmed that rehabilitation must not be given excessive weight at the expense of proportionality to criminality.

4. The appropriate sentence in the Crown Court would have been about six years’ imprisonment. The court reduced the total to four-and-a-half years to reflect the double jeopardy and shock of replacing an existing community order with custody.

5. Concurrent terms of four-and-a-half years were imposed for each offence of possession with intent to supply. A concurrent term of two years was imposed for simple possession of the Class A drug. The offender was directed to surrender to Reading police station by noon on the following day.

• Court of Appeal (Criminal Division) Allowed the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988 and substituted concurrent custodial sentences for the community orders.
• Reading Crown Court On 18 March 2005, imposed concurrent 12-month drug treatment and testing orders following convictions on 22 November 2004.