Attorney General Reference No 97 of 2006

On an Attorney General reference, a sentence may be left undisturbed even where it is lenient and close to being unduly lenient. The court must exercise its discretion in the interests of justice. Relevant considerations include credit for a guilty plea, especially where it followed a sentencing indication, substantial personal mitigation, and the double-jeopardy effect of imposing further custody after the offender expected release. A sentencing authority does not provide a direct comparator where material features, including the quantity of drugs, differ.

The offender pleaded guilty to two counts of possessing crack cocaine with intent to supply. The quantities were 1.3 grams and 1.5 grams. He accepted that, although the drugs were not physically with him, his text messages indicated that they were available for sale.

After an amended indictment and a sentencing indication, Recorder Evans imposed concurrent terms of two years’ imprisonment. The Attorney General applied for leave to refer the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient and that a six-year sentence was the proper minimum by comparison with Daljit. The central issue was whether the court should interfere with the sentence.

1. The court granted the Attorney General leave to refer the sentence under section 36 of the Criminal Justice Act 1988, but refused to alter it. The sentence was lenient and was described as bordering on unduly lenient. Nevertheless, it was not in the interests of justice to interfere.

2. The Attorney General’s reliance on Daljit overstated the proper sentencing comparison. The drugs in this case were a relatively small quantity. Although this was the offender’s second conviction for possessing drugs with intent to supply, Daljit was not a direct comparator. If a sentencing indication was to be given in the form adopted by the Recorder, the offender should have been warned of a risk of imprisonment in the region of five years.

3. The offender pleaded guilty at the last possible opportunity and was entitled to credit for it. The plea followed the sentencing indication. That circumstance was relevant to the discretionary decision, but did not prevent the Attorney General from making the reference. Significant additional mitigation also justified a substantial reduction.

4. The court further took account of double jeopardy. The offender faced a further period of imprisonment after he had expected to be released. That consideration carried less weight than it would where a person given a non-custodial sentence later faced custody, but it remained relevant. Taken together, those matters justified leaving the concurrent two-year sentences in place.

• Court of Appeal (Criminal Division) — on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to interfere with the sentence: [2006] EWCA Crim 2757.
• Recorder Evans — following guilty pleas to two amended counts of possessing Class A drugs with intent to supply, imposed concurrent sentences of two years’ imprisonment on 15 August 2006.