Attorney General's Reference No. 116 OF 2005

A sentencing judge must first determine the custodial term warranted by the offending. The judge should then consider whether suspension is lawful and justified. Starting with a wish to suspend a sentence risks producing an unduly lenient term.

For serious supply and possession with intent to supply a substantial quantity of Class A drugs, the quantity, commercial greed, venue and likely purchasers may justify a substantial immediate custodial sentence. On an Attorney General’s reference, the Court of Appeal may increase an unduly lenient sentence but should reduce the substituted term to reflect the double-jeopardy principle.

The offender was convicted after a jury trial at the Crown Court at Warwick of supplying ecstasy and possessing ecstasy with intent to supply. He had taken 530 tablets, with a street value of about £2,500, to an all-night festival and had passed 261 tablets to another person.

The sentencing judge imposed two-year sentences of imprisonment, suspended because he regarded the offender’s role as sole carer of two teenage children as exceptional. The Attorney General sought leave to refer the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was the proper sentence and whether suspension had distorted its assessment.

1. Reference granted. The court held that the two-year suspended sentences were unduly lenient to a very substantial extent. It substituted sentences of three years and nine months’ imprisonment, taking effect when the offender surrendered within seven days.

2. The judge had erred in approaching sentence from a desire to suspend it. Under the then applicable regime, a sentence exceeding two years could not be suspended. The proper approach was first to identify the custodial term warranted by the offending, and only then to consider suspension if lawful and justified.

3. The appropriate sentence, absent the Attorney General’s reference procedure, was five years’ imprisonment. The offences involved a substantial quantity of ecstasy brought to an all-night festival for commercial supply. The intended customers were likely to include young people. The court also treated the offender’s greed, his conviction after trial, and the setting of the offences as significant.

4. The offender’s lack of drug convictions, work record and responsibility for his children did not justify the suspended two-year terms. His previous imprisonment for driving while disqualified also showed that his children had previously experienced his absence.

5. The court reduced the five-year term to three years and nine months to reflect the double-jeopardy principle applicable to Attorney General references. Leave was granted under section 36 of the Criminal Justice Act 1988, and the Attorney General’s reference and application were allowed.

• Court of Appeal (Criminal Division) — granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentences unduly lenient, and substituted three years and nine months’ imprisonment.
• Crown Court at Warwick — following jury convictions for supplying a Class A controlled drug and possessing a Class A controlled drug with intent to supply, imposed two-year suspended sentences on each offence.