Abada, R. v

In sentencing a young offender for importing a substantial quantity of highly pure Class A drugs, genuine personal mitigation, remorse, early admissions and co-operation must receive proper weight. They must nevertheless be assessed against the seriousness of drug trafficking and its potential harm.

A compassionate personal history cannot justify a sentence which is markedly unduly lenient or which creates unjustified disparity with sentences for comparable offenders. For an importation of 1.24 kilograms of cocaine at 100 per cent purity, the appropriate post-trial starting point was 11 to 12 years’ detention before mitigation. A sentence of three years could not stand and was increased to five years.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed at Warwick Crown Court on 26 January 2006.

The offender, aged 18 when he offended, had pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on importing a Class A controlled drug, contrary to section 170(2) of the Customs and Excise Management Act 1979. He imported 1.24 kilograms of cocaine at 100 per cent purity from Brazil.

He had no material previous convictions. His mitigation included substantial family responsibilities, genuine remorse, an early guilty plea and extensive co-operation after arrest. The central issue was whether the three-year term of detention in a young offender institution was unduly lenient.

1. The reference was allowed. The court granted leave and held that the three-year sentence was markedly unduly lenient. It quashed that sentence and substituted five years’ detention.

2. The quantity and purity of the cocaine made this a very serious trafficking offence. The sentencing judge had not fully addressed the applicable sentencing range. For importation of 1.24 kilograms of cocaine at 100 per cent purity, the proper starting point after a trial was 11 to 12 years’ detention.

3. The court accepted that the offender’s mitigation was real and substantial. He had assumed heavy responsibilities for his disabled mother and younger family members, incurred debt in that context, co-operated fully after arrest, showed genuine remorse and pleaded guilty at the first opportunity. Full credit was due for those matters.

4. However, personal mitigation in drug-courier cases must be evaluated against the grave potential harm of the offence. Similar offenders frequently have compelling personal circumstances. Allowing this sentence to stand would create a significant and unjustified inconsistency with sentences imposed on other offenders with profound mitigation.

5. The court also took account of the double-jeopardy consequence of increasing a sentence on an Attorney General’s reference and the offender’s positive response to custody. Even allowing fully for those matters, the original sentence could not be sustained.

• Court of Appeal (Criminal Division). On the Solicitor General’s reference, the court granted leave, held the sentence unduly lenient, quashed it and substituted five years’ detention: [2006] EWCA Crim 1182.
• Crown Court at Warwick. On 26 January 2006, the offender received three years’ detention in a young offender institution following a guilty plea.