Attorney General's Reference Nos 74 & 75 of 2004

In assessing the seriousness of a drug runner’s role, the quantity of drugs supplied and the period of supplying them are more material than whether the runner operated inside or outside the distribution organisation. Proximity to the principal supplier remains relevant.

The absence of drug stock alone does not bring an offender within the limited category of addicted, out-of-work offenders making a few retail supplies solely to fund their addiction. On an Attorney General’s reference, the court may decline to increase a sentence even if it may have been unduly lenient, where double jeopardy and post-release circumstances make intervention inappropriate.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed on Scott and Holmes at Teesside Crown Court.

Each offender pleaded guilty, after amendment of an indictment listed for trial, to being concerned in supplying cocaine. Holmes made supplies over about 12 months, totalling just under 180 grams. Scott made eight supplies over about two months, totalling about 840 grams. On 7 May 2004, Scott received three and a half years’ imprisonment and Holmes three years’ imprisonment.

The central issues were whether either sentence was unduly lenient and, if so, whether the Court of Appeal should exercise its discretion to increase it.

1. The reference succeeded in part. The court granted leave. It substituted a sentence of five years’ imprisonment for Scott’s sentence of three and a half years. It made no alteration to Holmes’s sentence.

2. For runners in a cocaine-distribution operation, the important indicators of culpability are the quantity supplied and the period over which supplies were made. Whether the runner supplied from within or outside the organisation was less material. The runner’s proximity to the main source of supply remained a relevant consideration.

3. Holmes was not an R v Afonso case. The confined description in that authority concerned out-of-work addicted offenders who made a few retail supplies solely to finance their addiction, held no stock, and supplied only undercover officers. Holmes’s lack of stock was the only significant similarity.

4. Scott’s repeated supplies of substantial quantities of cocaine, his substantial involvement in supply, and his late guilty plea made three and a half years plainly unduly lenient. A sentence of about six years or slightly more would have been expected below. Giving credit for double jeopardy, the appropriate substituted sentence was five years.

5. Holmes’s sentence was plainly lenient and might have been unduly lenient. However, double jeopardy and the fact that he had already been released from custody for several months meant that, even if the statutory threshold were met, the court should not exercise its discretion to interfere.

• Court of Appeal (Criminal Division) — On the Attorney General’s reference, the court granted leave, increased Scott’s sentence to five years, and declined to interfere with Holmes’s sentence: [2005] EWCA Crim 262.
• Teesside Crown Court — On 7 May 2004, Scott was sentenced to three and a half years’ imprisonment and Holmes to three years’ imprisonment following guilty pleas to being concerned in the supply of cocaine.