Harding, R. v

A sentencing court may impose a suspended custodial sentence for Class A drug supply where the offending is modest in scale and there is a genuine, evidenced opportunity for rehabilitation. A sentence may be deliberately and even very lenient without being unduly lenient.

The reduced guidance for an unemployed addict making only limited, stock-free supplies to undercover officers does not govern an organised street-level drug business operated through others. A drug dealer who keeps weapons for use in connection with dealing should receive a significant increase in sentence, normally marked by consecutive terms.

These were Attorney General’s references under section 36 of the Criminal Justice Act 1988 alleging undue leniency in two sentences imposed at the Crown Court at Truro.

Harding had pleaded guilty to offences concerning the supply and possession with intent to supply heroin, and possession of cannabis resin. He received concurrent suspended sentences with supervision and drug-rehabilitation requirements. Hawkes was convicted after trial of a conspiracy to supply heroin, possession of controlled drugs, and possession of a stun gun and pepper spray. He received two years’ imprisonment, with concurrent terms for the weapons offences.

The central issues were whether the sentences were unduly lenient, the proper relevance of rehabilitation, the applicable Class A drug-supply guidance, and the sentencing consequence of possessing weapons for drug dealing.

1. Leave was granted. The court left Harding’s sentence unchanged but held that Hawkes’s total sentence was unduly lenient.
2. Harding’s offending crossed the custody threshold and his suspended sentence was deliberately lenient. However, the dealing was modest in scale. The sentencing judge was entitled to give substantial weight to the credible and unusual opportunity for rehabilitation, supported by the pre-sentence material and Harding’s progress. A lengthy history of offending, much of it associated with addiction, could in an exceptional case reinforce rather than exclude that conclusion. The sentence was not unduly lenient.
3. The guidance in R v Afonso [2005] 1 Cr App R(S) 99 concerned a narrow category of unemployed addicts who supplied only to undercover officers, held no stock, and acted solely to finance their own addiction. Hawkes operated an organised retail heroin business for five months through runners. His case was therefore closer to R v Twisse [2001] 2 Cr App R(S) 37 than to R v Afonso.
4. Hawkes possessed prohibited weapons for use if he encountered trouble in his drug dealing. Those offences under section 5(1)(b) of the Firearms Act 1968 were serious in their own right. A dealer prepared to resort to violence must expect a significant sentencing increase, normally expressed through consecutive sentences. The concurrent weapons terms had not been reflected in the overall sentence and that approach was wrong in principle.
5. Allowing for Hawkes’s mental condition, the court substituted three years’ imprisonment for the drug-conspiracy sentence and ordered the concurrent twelve-month weapons sentences to run consecutively. The total sentence was four years’ imprisonment.

1. Court of Appeal (Criminal Division) On Attorney General’s references, the court granted leave. It upheld Harding’s suspended sentence but substituted a total sentence of four years’ imprisonment for Hawkes: [2007] EWCA Crim 2634.
2. Crown Court at Truro Harding received concurrent twelve-month suspended sentences with supervision and rehabilitation requirements. Hawkes received two years’ imprisonment for conspiracy to supply heroin, with concurrent twelve-month terms for possession of prohibited weapons.