Davidson, R v

Where the prosecution does not challenge a defendant’s basis of plea and no Newton hearing is held, sentence must be passed on that basis. In a large-quantity Class A drugs conspiracy, weight and purity provide an important guideline starting point, but culpability remains critical. A subordinate offender who briefly possesses drugs, suspects rather than knows their nature, and is not close to the principal dealers may properly receive a materially lower starting point than a knowing and significant trafficker. An unexamined sentence imposed on a co-defendant in another case provides only limited comparative assistance.

The appellant pleaded guilty at the Crown Court at Snaresbrook to conspiracy to supply heroin. Police recovered 28.8 kilograms of heroin from his home. He entered a basis of plea stating that he had acted to discharge a debt, suspected the holdall contained drugs but did not know that it did, and had possessed it only briefly.

The prosecution neither challenged the basis nor sought a Newton hearing. The judge imposed 11 years’ imprisonment. The appellant appealed by leave of the Single Judge, contending that the pre-discount starting point was excessive. The central issue was the proper starting range for his role and knowledge in the conspiracy.

1. Appeal allowed. The court quashed the 11-year sentence and substituted seven years’ imprisonment.
2. Because the prosecution had neither criticised nor accepted the basis of plea and had not sought a Newton hearing, the sentencing court had to sentence the appellant on that basis. It therefore had to proceed on the footing that he suspected, but did not know, that the holdall contained drugs; had acted to discharge a debt; and had held the drugs only briefly.
3. The court gave specific regard to R v Aramah [1983] 76 Cr.App.R 190, which indicated that offences involving more than five kilograms of Class A drugs at 100 per cent purity warranted sentences of ten years and above before credit for a guilty plea. However, the sentencing comparison with R v Ali Unlu [2003] 1 Cr.App.R(S) 101 required careful distinction. Unlike Unlu, the appellant did not knowingly transport drugs for days, was not shown to be close to the principal dealers, and was properly treated as a subordinate participant.
4. Those distinctions, together with the basis of plea and the personal mitigation, meant that the judge’s pre-discount starting point was too high. The proper range was 12 to 14 years before the relevant discounts. After allowing for the guilty plea, the basis of plea and the other matters advanced in mitigation, seven years was the proper sentence.
5. The nine-year sentence received by Unlu’s co-defendant was of limited assistance because that case had not been closely examined on appeal.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1704, allowed the appeal against sentence, quashed the 11-year sentence and substituted seven years’ imprisonment.
• Crown Court at Snaresbrook: The appellant pleaded guilty to conspiracy to supply a Class A drug and, on 16 January 2009, was sentenced to 11 years’ imprisonment.