Darling & Ors, R v

Where a court finds under section 110(2) of the Powers of Criminal Courts (Sentencing) Act 2000 that it would be unjust to impose the seven-year minimum sentence for repeat Class A drug trafficking, sentencing is at large under ordinary principles. The 20 per cent limit on credit for a guilty plea in section 144(2) of the Criminal Justice Act 2003 then does not apply. The offender may receive the ordinary appropriate credit, including a one-third reduction for an early guilty plea.

Low-level trading may justify disapplying the minimum term. It does not remove the need to sentence repeat drug traffickers firmly, since street-level suppliers remain integral to the supply network.

Three appellants pleaded guilty to offences involving the supply of heroin during an undercover test-purchase operation in Berwick-upon-Tweed. The sentencing judge at Newcastle Crown Court imposed concurrent terms of five years on Darling and Punton and four and a half years on Weatherston.

Each appellant was subject to section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 as a repeat Class A drug trafficker. The judge nevertheless treated the low level of their dealing as making the seven-year minimum unjust. He then limited guilty-plea credit to 20 per cent under section 144(2) of the Criminal Justice Act 2003.

The appeals concerned whether that statutory limit still governed once the minimum term had been disapplied, and whether the resulting sentences were excessive.

1. The appeals were allowed to the extent of reducing the sentences. The judge was entitled to find that the modest scale of the appellants’ trading made it unjust to impose the seven-year minimum under section 110(2) of the Powers of Criminal Courts (Sentencing) Act 2000.

2. Once that finding was made, the sentencing exercise was governed by ordinary sentencing principles and the applicable guidelines. Section 144(2) of the Criminal Justice Act 2003, which limits credit for a guilty plea when the statutory minimum is imposed, did not limit the court to a 20 per cent reduction. Parliament did not intend that restriction to apply where the court had found it unjust to impose the minimum term.

3. The judge therefore misdirected himself by allowing only 20 per cent credit. Each appellant was entitled, on ordinary principles, to the appropriate one-third credit for an early guilty plea. The court rejected any further complaint that the sentences, once that error was corrected, were excessive.

4. Low-level street dealing can justify departure from the statutory minimum, but repeat Class A drug traffickers must still be sentenced firmly. Street traders are an indispensable part of the unlawful supply network.

5. The court quashed the original sentences and substituted concurrent terms of four years for Darling, three and a half years for Weatherston, and four years for Punton. Credit for time spent on remand remained.

• Court of Appeal (Criminal Division): Allowed the sentence appeals in part and substituted reduced custodial terms: [2009] EWCA Crim 1610.
• Newcastle Crown Court: On 6 February 2009, His Honour Judge Evans imposed sentences of five years’ imprisonment on Darling and Punton and four and a half years’ imprisonment on Weatherston.