Attorney General Reference Nos 108, 109 and 110 of 2008

An offender must be sentenced on an accepted basis of plea unless the court clearly rejects it. In a multi-handed conspiracy, the Crown must ensure that accepted bases of plea are precise and mutually consistent as to the offenders’ roles.

Separate conspiracies, particularly those years apart, should ordinarily be sentenced separately. The court should then decide whether sentences should be consecutive or concurrent and apply totality to the aggregate. A plea following an earlier not-guilty plea is not ordinarily made at the first reasonable opportunity, although exceptional circumstances may justify different treatment. Serious participation in an extensive drug conspiracy, even at its periphery, requires a sentence reflecting that gravity.

A deputy circuit judge sentenced Osman, Catal and Weight for their involvement in a 2006 conspiracy to supply heroin. Osman was also sentenced for a distinct 2001 heroin conspiracy and dangerous driving. The Attorney General sought to refer the sentences of those three offenders as unduly lenient.

Olgundeniz, who had been sentenced to 16 years’ imprisonment for the 2006 conspiracy, appealed on the ground that his sentence was manifestly excessive. The offenders’ accepted bases of plea were materially inconsistent about the hierarchy within the 2006 conspiracy. The central questions were whether the sentences were unduly lenient or excessive, and what consequences followed from the accepted bases of plea.

1. The court granted the Attorney General leave to refer the sentences of Osman and Weight, increased their sentences, refused leave in respect of Catal, and dismissed Olgundeniz’s appeal after granting permission to appeal.

2. The accepted bases of plea for Osman and Catal were inconsistent with that later accepted for Olgundeniz. The Crown should have considered the alleged hierarchy before accepting them and should have expressed each role precisely. In accordance with the guidance in Underwood [2004] EWCA Crim 2256, bases of plea in a serious multi-handed case require particular care. Once the Crown and sentencing judge accepted the bases for Osman and Catal, it was not open to contend on the reference that Osman’s role was materially greater than the courier role described.

3. The judge erred in treating Osman’s 2001 and 2006 conspiracies as a single sentencing exercise. The approach in Attorney General's Reference No 2 of 2006 (Gokenc) [2006] EWCA Crim 755 was apt to conspiracies separated only by a short period, but not to offences five years apart. The judge should have assessed each offence separately, decided whether sentences should be consecutive, and then considered totality. The court substituted 18 years’ imprisonment for Osman’s total sentence.

4. The treatment of Osman’s plea as effectively made earlier than its formal date was justified only by exceptional circumstances and created no precedent. The court reserved the question whether prolonged evasion of arrest should affect the full reduction for a later guilty plea.

5. Weight’s role as driver was peripheral but formed part of an extensive heroin conspiracy. Personal character and presentation carry limited weight in sentencing serious drug offending. His five-year sentence was unduly lenient; allowing for double jeopardy, it was increased to seven years.

6. Olgundeniz had a legitimate complaint that he was sentenced on a role inconsistent with his accepted basis of plea. However, the judge had failed to activate substantially the whole of the outstanding period following his earlier serious drug conviction. That failure counterbalanced the unfairness, so the 16-year sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): The Attorney General’s references succeeded as to Osman and Weight, but not Catal. Olgundeniz’s sentence appeal was dismissed.

• Crown Court: On 31 October 2007, a deputy circuit judge imposed sentences for heroin conspiracies and related offending, including 13 years on Osman, 11 years on Catal, five years on Weight and 16 years on Olgundeniz.