Burns, R v

For a large and sophisticated importation of Class A drugs, an employee who uses specialist operational knowledge to divert and transfer the consignment has a significant role. The sentencing guidance, as updated, requires a sentence in the region of 15 to 16 years before proper allowance for mitigation. Good character, community service, lack of proven reward, and uncertainty about the precise quantity or type of drugs will not justify a sentence that fails to reflect the offender’s knowing participation in a very serious importation.

The offender was convicted after trial of conspiring fraudulently to evade the prohibition on importing cocaine. He was a DHL supervisor who used his access to the delivery system to remove two parcels containing more than 32 kilograms of powder, with just over 19 kilograms of pure cocaine, and to transfer them to others.

The Crown Court imposed eight years’ imprisonment. The Attorney General referred that sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the offender’s role, the scale and sophistication of the importation, and the applicable sentencing guidance required a substantially longer sentence despite his good character and the limits of proof about his precise knowledge.

1. The court granted the Attorney General leave to refer the sentence and held that eight years’ imprisonment was unduly lenient. It quashed that sentence and substituted fourteen years’ imprisonment.

2. The importation was large, sophisticated and international. It relied on an unwitting commercial carrier, an innocent consignee, co-operation between people in the United Kingdom and South America, and detailed knowledge of the carrier’s systems. The offender’s intervention was operationally indispensable: without his specialist knowledge and his removal and transfer of the parcels, the importation could not have succeeded.

3. The court rejected the submission that the offender’s role was subordinate or of limited significance. Although he was not shown to be involved in onward supply, and the Crown could not prove his precise knowledge of the drugs’ type or quantity, he knowingly lent himself to an importation which could have involved a considerably larger quantity of Class A drugs. Any claimed ignorance resulted from his failure to ask questions. He knew the parcels came from South America, understood the planning involved, and handled boxes containing more than 32 kilograms of powder.

4. The applicable guidance was that in R v Aroyewumi and Aranguren (1995) 16 Cr App R(S) 211, which had updated R v Aramah 76 Cr App R 190. It indicated a sentencing range of 15 to 16 years for offending of this kind. The offender’s excellent character and other mitigation warranted some reduction, but not a sentence outside the appropriate bracket. Fourteen years was the least proper custodial sentence.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the eight-year sentence, and substituted fourteen years’ imprisonment: [2009] EWCA Crim 1123.
• Crown Court: The offender was convicted after trial of conspiracy to evade the prohibition on importing a Class A controlled drug and was sentenced to eight years’ imprisonment.