Szmyt, R v

For sentencing an attempt to import a controlled drug, the offender’s culpability may be the same as if the substance were genuine. The sentence must nevertheless reflect the actual absence, or materially lower purity, of the drug. Sentencing guidance for importation remains a starting point only. The quantity and strength of the intended drug are important, but personal mitigation and the circumstances of the offender may also affect the proper sentence.

The appellant was convicted at Canterbury Crown Court of attempting to import MDMA or ecstasy and was sentenced to six years’ imprisonment. He had also pleaded guilty to importing cannabis and received a concurrent sentence of ten months.

He had driven from Poland to Coquelle with a television containing almost 2,000 apparent ecstasy tablets and more than two kilogrammes of cannabis. The tablets were harmless. The issue at trial was whether he knew of them and believed them to be ecstasy. He was convicted, and did not renew his unsuccessful application for permission to appeal against conviction.

His appeal concerned whether the six-year sentence properly reflected that the supposed ecstasy contained no controlled drug.

1. The appeal against sentence was allowed. The appropriate sentence for the attempted importation count was four years and six months’ imprisonment, rather than six years.

2. The court applied the sentencing guidance in Warren and Beeley [1996] 1 Cr App R(S) 233. The number and strength of ecstasy tablets provide an important sentencing indication, although quantity or weight is only one factor. Had the nearly 2,000 tablets contained a usual quantity of ecstasy, a sentence of six and a half to seven years would have been expected.

3. The appellant was properly treated as a courier. Although he believed he was importing ecstasy and his moral culpability therefore remained the same, the sentence had to reflect that the tablets contained no ecstasy. That approach accorded with Wolin [2005] EWCA Crim 3006, concerning an attempt involving drugs of no effective purity.

4. The court treated the lower sentence in Noevers [2001] Cr App R(S) as explained by that offender’s favourable personal circumstances and previous good character. It did not justify retaining the sentence imposed here. The concurrent ten-month sentence for cannabis was unaffected.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and reduced the sentence for attempted importation of MDMA from six years to four years and six months.

• Crown Court at Canterbury: On 1 December 2008, convicted the appellant of attempting to import MDMA or ecstasy and sentenced him to six years’ imprisonment. He had pleaded guilty to importing cannabis and received a concurrent sentence of ten months.