James & Ors, R v

An appellate court may reduce sentences which create an unjustified disparity between co-offenders, even where each sentence is not independently manifestly excessive. The question is whether the unexplained difference gives an offender a substantial and justified sense of grievance.

When imposing a consecutive sentence on an offender still serving an earlier sentence, a court must consider the effect of Criminal Justice Act 1991 section 51(2). Where the provision aggregates the terms for early-release purposes, the judge must consider the actual period likely to be served as well as the proper length of the new sentence and whether it should be consecutive or concurrent.

James, Reynolds and Anthony Roberts pleaded guilty at Cardiff Crown Court to conspiracy to supply heroin, a Class A drug, into a prison. James and Anthony Roberts were serving prisoners. Reynolds, James’s girlfriend, was to carry heroin into the prison after it had been obtained by Anthony Roberts’s son, Jay Roberts.

James received four and a half years’ imprisonment consecutive to an existing sentence. Reynolds received three years. Anthony Roberts received three and a half years consecutive to an existing five-year sentence. James and Reynolds appealed their sentences. Anthony Roberts sought an extension of time and leave to appeal.

The central issues were whether the differences between the co-offenders’ sentences were unjustified and whether the judge had appreciated the early-release consequences of Anthony Roberts’s consecutive sentence under the Criminal Justice Act 1991.

1. The appeals were allowed. The court granted Anthony Roberts an extension of time and leave to appeal. It held that none of the sentences was independently manifestly excessive, but the judge had not explained material differences between the co-offenders’ sentences.
2. The court was therefore required to assess the offenders’ relative roles and culpability. James and Anthony Roberts were properly treated alike in the hierarchy of the conspiracy. James’s existing sentence for a similar drug offence balanced Anthony Roberts’s role as organiser. No adequate reason appeared for James to receive 12 months more than Anthony Roberts. The disparity gave James a substantial sense of grievance. The distinction between Reynolds and Jay Roberts was also insufficiently explained, given Jay Roberts’s essential and active role.
3. A consecutive sentence for Anthony Roberts was appropriate in principle. However, for offences still governed by the Criminal Justice Act 1991, section 51(2) treated his unexpired and new consecutive terms as a single term for early-release purposes because he had not been released between the sentences. The judge had wrongly believed that he would serve only the remaining 63 days of the earlier sentence followed by half of the new sentence.
4. The sentencing court had to consider the proper sentence for the new offence, whether it should be concurrent or consecutive, and the overall statutory effect on the period to be served. The court referred to Singh [1999] 1 Cr. App. R. (S) 445 as demonstrating the need for vigilance and clarity in that situation. It substituted 32 months’ imprisonment for Anthony Roberts’s three-and-a-half-year sentence, seeking to give effect to what the sentencing judge had intended.
5. It quashed James’s four-and-a-half-year sentence and substituted three and a half years’ imprisonment. It quashed Reynolds’s three-year sentence and substituted two and a half years’ imprisonment.

• Court of Appeal (Criminal Division): Allowed the sentence appeals, granted Anthony Roberts an extension of time and leave to appeal, and substituted reduced sentences.
• Cardiff Crown Court: On 26 July 2005, His Honour Judge Hopkins QC sentenced the defendants following guilty pleas to conspiracy to supply heroin.