Hynes, R. v

Substantial threats which fall short of duress may materially mitigate sentence, but they must be weighed against the gravity of an attempt to introduce controlled drugs into a prison. A sentencing court may impose a substantial custodial sentence where the quantity and seriousness of the drugs, together with the offender’s conduct, outweigh that mitigation. An appellate court will not interfere where the resulting sentence cannot be described as manifestly excessive.

The appellant pleaded guilty to attempting to supply heroin, a class A controlled drug, and cannabis, a class C controlled drug, by throwing a package over the wall of Lowdham Grange Prison.

The accepted basis of plea was that third parties had threatened him and his family with serious injury. The threats did not amount to a defence of duress. His Honour Judge Teare sentenced him to five years’ imprisonment, having initially contemplated seven years before mitigation.

The appellant appealed against sentence. The issue was whether the judge had given insufficient weight to the substantial pressure under which the appellant acted, so that the five-year sentence was manifestly excessive.

1. Appeal dismissed. The court held that the five-year sentence was not manifestly excessive.

2. The sentencing judge accepted that the appellant had faced substantial threats and pressure, that he had intended after an earlier period of custody to reform, and that imprisonment would bear particularly hard on him because he and his partner had recently had a child. Those matters properly reduced the sentence from the judge’s initial seven-year view.

3. However, the appellant attempted to introduce a substantial quantity of drugs into a prison: 100 grammes of powder containing heroin, valued at between £4,000 and £10,000, as well as cannabis. He carried out the act, hid nearby for nearly an hour, and made no comment in interview. The threats did not amount to a legal defence.

4. The court considered comparative prison-drug cases. In Tanveer Waheed, a seven-year sentence was reduced to five years, but the heroin quantity was only one-thirtieth of that involved here. In Prince, five years was upheld for an attempt involving only half a gramme of heroin. Those comparisons did not show that the sentencing judge had allowed an inadequate discount for the appellant’s pressure and fear.

5. The court agreed that five years appropriately reflected both the mitigation and the seriousness of the offending. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division): Sentence appeal dismissed: [2008] EWCA Crim 1934.

• Crown Court: His Honour Judge Teare sentenced the appellant to five years’ imprisonment following guilty pleas to attempted supply of class A and class C controlled drugs. No citation was stated.