Attorney General Reference Nos 99, 100, 101 & 102 of 2004

On a reference alleging undue leniency, the Court of Appeal retains a discretion whether to increase sentence. Even where a sentence is unduly lenient, it may decline to interfere after allowing for the offender’s double jeopardy in being resentenced.

In large-scale Class A drug conspiracies, organisers of domestic wholesale distribution will generally receive somewhat lower sentences than organisers of importation. The difference is unlikely to be great. Sentence must reflect the offender’s role, the scale and duration of the enterprise, and the timing of any guilty plea.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed on four offenders by His Honour Judge Mackinnon at Southwark Crown Court.

Whiteway received concurrent terms of 12 years for conspiracies to supply cocaine, cannabis resin and cannabis. Connell, Long and Nadarajah received respectively eight, nine and seven years for the cocaine conspiracy. The conspiracy was a prolonged and highly organised wholesale drug operation with a multi-million-pound turnover.

The central issue was whether the sentences were unduly lenient and, if so, whether the court should exercise its discretion to increase them despite double jeopardy.

1. The court granted leave for the Attorney General’s references. It concluded that no sentence should be increased.

2. There was a real, but small, sentencing distinction between those who organise the importation of Class A drugs and those who organise their wholesale distribution within the United Kingdom. The latter will ordinarily receive a somewhat lower sentence, but the seriousness of a major domestic distribution enterprise remains very high. The court approved the guidance in Gill & Van der Leest that sentences substantially above 20 years after trial are reserved for exceptional cases.

3. For Whiteway, a leading organiser of the domestic wholesale operation, a 20-year starting point after trial lay at the bottom of the appropriate bracket. His late guilty plea did not justify reducing that figure to 12 years. A sentence of about 15 or 16 years would have been expected, and the 12-year sentence was unduly lenient.

4. Nevertheless, the court had to allow for double jeopardy. The adjustment required on resentencing meant that it would not exercise its discretion to disturb Whiteway’s 12-year sentence.

5. The court would also have expected higher sentences for Long, Connell and Nadarajah, respectively about 11, 10 and nine years. It did not need to decide whether their original sentences were lenient or unduly lenient. Once double jeopardy was taken into account, none was a sentence with which the court should interfere.

• Court of Appeal (Criminal Division): The Attorney General’s references under section 36 were determined in [2005] EWCA Crim 294. The court found Whiteway’s sentence unduly lenient but declined, in its discretion, to increase it; it made no alteration to any of the four sentences.
• Southwark Crown Court: His Honour Judge Mackinnon sentenced Whiteway, Connell, Long and Nadarajah on 9 July 2004 for their roles in the drug-supply conspiracies.