Clough, R v

Where a sentencing judge has expressly promised a defendant the full one-third credit for a guilty plea, the sentence must give effect to that precise mathematical reduction.

For an extremely large Class A drug consignment, sentences of 24 years or more may be appropriate even for a middle-ranking participant. A materially important participant cannot obtain a lower sentence merely by asserting that a co-offender was closer to the conspiracy’s centre. Previous good character and an unsuccessful importation carry little mitigating weight at this level of offending.

The appellant pleaded guilty in the Crown Court at Woolwich to conspiracy to commit an offence outside the United Kingdom. The conspiracy concerned the proposed export from Venezuela to Portugal of cocaine concealed in a boat bought in the appellant’s name.

The sentencing judge imposed 18 years’ imprisonment. He had previously indicated that the appellant would receive full one-third credit for his guilty plea. The appellant sought to appeal his sentence, contending that the promised credit had not been precisely given and that his role was less serious than that of his co-defendant.

The Court of Appeal granted extensions of time and leave to appeal. The central issues were the proper effect of the promised plea credit and whether the sentence was excessive for the appellant’s role in a very large cocaine conspiracy.

1. Appeal allowed to a limited extent. The court quashed the 18-year sentence and substituted 17 years and 4 months’ imprisonment.

2. The sentencing judge had expressly promised the appellant a full one-third reduction for his guilty plea. Although 18 years roughly represented one-third off the judge’s 26-year starting point, the exact calculation produced 17 years and 4 months. The court therefore gave effect to the undertaking by reducing the sentence by eight months.

3. The court rejected the wider submission that a 15-year sentence was appropriate because the appellant was less central to the conspiracy than his co-defendant. The appellant had purchased and arranged the preparation and export of the boat in which 273 kilograms of pure cocaine had been concealed. The trial judge was entitled to regard the two men’s roles as not materially distinguishable for sentencing.

4. The sentencing authorities showed that, for extremely large Class A consignments, a sentence of 24 years or more could be appropriate for a middle-ranking participant. They also permitted a lower category for a mere courier or cog. The appellant’s accepted role and the scale of the operation placed his sentence within the proper range. The court referred in particular to R v Kanack [1998] 2 Cr App R(S) 283.

5. The failure of the attempted importation did not justify a lower sentence. Nor did previous good character or favourable references materially mitigate offending at this exceptionally serious level.

• Court of Appeal (Criminal Division): appeal against sentence allowed to the limited extent of reducing the sentence from 18 years to 17 years and 4 months: [2009] EWCA Crim 1669.
• Crown Court at Woolwich: following a guilty plea to conspiracy to commit an offence outside the United Kingdom, the appellant was sentenced on 26 September 2008 to 18 years’ imprisonment.