Attorney General's Reference No. 20 of 2005

Supply of Class A drugs will ordinarily attract a significant custodial sentence for deterrence and public protection. Sentencing guidance does not, however, remove a judge’s discretion to adopt an exceptional course where the material before the court justifies it.

An appellate court should not interfere with an exceptionally lenient community sentence merely because custody would ordinarily be expected. It must assess whether the sentencer had sufficient material to treat the offender as exceptional, including youth, previous good character, insight, remorse, prospects of rehabilitation and the nature of the offending.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed on an 18-year-old offender for seven offences of supplying crack cocaine.

The offender had no previous convictions. He had been involved in drug use for only a short period, had spent three months on remand, and was assessed as remorseful and unlikely to reoffend if separated from those involved in the drug scene. Judge Simpson imposed a two-year community rehabilitation order and 100 hours’ community punishment.

The central issue was whether that exceptional non-custodial sentence should be disturbed despite the usual custodial approach to Class A drug supply.

1. Leave to refer was granted, but the sentence was not altered. The sentence was lenient, since those who supply Class A drugs ordinarily face significant custody to deter others and protect the public. The court nevertheless held that it should not interfere and that the community sentence should stand.

2. The sentencing judge’s reference to R v Alfonso did not mean that this offender fell within the category contemplated there. Unlike a long-term, homeless and hopeless addict selling drugs to fund an addiction, the offender was not then addicted. He had become involved in supply both through his own drug use and to make money from surplus drugs. If custody had been imposed, this would not have been a case for the shorter custodial sentence indicated as potentially appropriate in that category.

3. Guidelines and repeated statements of the general custodial principle do not deprive a sentencing judge of the ability to take an exceptional course in an individual case. There was sufficient material to justify that course here: the offender’s age, absence of convictions, limited involvement in drugs, the favourable pre-sentence assessment, remorse, and prospects of avoiding further offending.

4. The judge had expressly recognised the exceptional nature of the sentence and warned the offender that failure to take the opportunity offered would lead inevitably to substantial custody. Those features supported the conclusion that appellate intervention was not required.

• Court of Appeal (Criminal Division): the Attorney General was granted leave to refer the sentence as unduly lenient, but the court declined to interfere and the sentence imposed on 15 February 2005 remained in force.
• Sentencing court: Judge Simpson imposed a two-year community rehabilitation order and 100 hours’ community punishment for seven offences of supplying a Class A controlled drug.