Attorney General's Reference No. 111 of 2005

In an unduly lenient sentence reference, the court must assess the seriousness of the offending and give plea credit which reflects both its extent and timing. It must also consider totality where an activated licence period forms part of the offender’s overall custody.

Having identified the sentence otherwise appropriate, the court may make a further allowance for double jeopardy and other proper mitigation when substituting a sentence. A substituted sentence should preserve any direction that remand time be counted towards the original sentence.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer a sentence imposed at Bolton Crown Court on 13 October 2005.

The offender had received three years’ imprisonment for five offences of possessing Class A, B and C drugs with intent to supply. The Class A offending involved almost 600 grammes of heroin at 100 per cent purity. The Recorder also activated 18 months of an unexpired licence period, although that order was not itself challenged.

The principal issue was whether the three-year sentence was unduly lenient and, if so, what substituted sentence was appropriate after allowing for plea credit, double jeopardy, totality and mitigation.

1. Leave was granted and the reference allowed. The three-year sentence was unduly lenient. The offending involved very substantial quantities of heroin, as well as amphetamine and cannabis resin. The presence of weighing scales, packaging and a cutting agent added to its seriousness.

2. The Recorder erred by treating six years’ imprisonment as a starting point and then reducing it for guilty pleas. In particular, the offender did not admit the substantial proportion of the heroin until the day fixed for trial. Taking proper account of the pleas, six years was the sentence otherwise appropriate for the drug offences.

3. The court took account of totality. The Recorder’s activation of 18 months of the unexpired licence period was not challenged, but it formed part of the overall custodial consequence.

4. In fixing the substituted sentence, the court allowed for double jeopardy, appropriate plea credit, the absence of previous drug convictions, and the offender’s constructive conduct in prison. It quashed the original term and substituted five years’ imprisonment, consecutive to the activated 18-month licence period.

5. The direction that 160 days spent on remand be treated as time served was preserved in relation to the substituted sentence.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, and substituted five years’ imprisonment.
• Bolton Crown Court: On 13 October 2005 imposed three years’ imprisonment for five drug-possession-with-intent-to-supply offences and activated 18 months of an unexpired licence period.