Attorney General's Reference No. 11 of 2006

Prison overcrowding may be relevant where the choice between custody and a community sentence is genuinely marginal, because overcrowding can impede rehabilitation. It does not justify avoiding custody where the seriousness of the offence requires it. A custodial term must in every case be no longer than commensurate with the offence.

The reduced sentencing approach for a narrowly defined group of addicted street-level suppliers of Class A drugs does not apply to an offender who holds stock and deals regularly for profit. On an Attorney General’s reference, the court must also give substantial weight to the offender’s double jeopardy when replacing an unduly lenient sentence.

The offender pleaded guilty at Teesside Crown Court to possessing 6.05 grammes of heroin with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. Police had found 83 prepared heroin deals concealed on his car, together with slips bearing his telephone number. The judge imposed a suspended sentence order comprising 12 months’ detention, unpaid work, supervision and a programme requirement.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The sentence also exceeded the maximum period capable of suspension by one week. The central issue was whether the offender fell within the limited category of addicted, low-level suppliers for whom a substantially lower custodial sentence might be appropriate.

1. The Attorney General’s reference was allowed. The suspended sentence was quashed and replaced by two years’ detention in a young offender institution. The 112 days spent on remand were to count towards that term.

2. The sentencing judge had erred in treating the case as falling within the limited class identified in R v Afonso and others [2004] EWCA Crim 2342. That class concerns unemployed addicts whose sole motive is to fund their own addiction, who hold no stock, and who make only a few supplies to undercover officers. This offender was not such an addict. He held stock and was retailing heroin for profit on a considerable scale, as shown by the 83 prepared deals and the telephone-number slips used as business cards.

3. Prison overcrowding may be relevant only where the sentencing decision is genuinely on the cusp between a community sentence and custody. It may affect rehabilitation in prison and reinforces the requirements in sections 152 and 153 of the Criminal Justice Act 2003. It has no relevance where the offence requires immediate custody. Courts must still impose only the shortest custodial term commensurate with the seriousness of the offence.

4. The original sentence was unduly lenient. In selecting the replacement sentence, the court gave weight to the offender’s youth, his guilty plea, the unpaid work already performed, and especially the double jeopardy of receiving a first custodial sentence after the original disposal. The weapons found at his girlfriend’s home were disregarded because no charge had been brought and there was no sound basis for attributing them to him.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentence unduly lenient, and quashed it: [2006] EWCA Crim 856.
• Teesside Crown Court: The offender pleaded guilty and received a suspended sentence order comprising 12 months’ detention suspended for 18 months, 100 hours’ unpaid work, supervision and a programme requirement. No citation was stated.