Valentas & Anor, R. v

Proposals in a Sentencing Advisory Panel consultation paper remain proposals within a public consultation process. They may be useful background, but have no legal force and cannot displace, amend or undermine an existing guideline decision of the Court of Appeal.

Until the Sentencing Council issues a definitive guideline, a sentence properly imposed under the court’s existing guidance provides no basis for appellate intervention merely because the consultation proposals suggest a different approach. The Court of Appeal should not pre-empt the structured guideline-making process by anticipating the form of a possible future definitive guideline.

The appellants pleaded guilty in the Crown Court at Isleworth to being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. Each had acted as a drugs courier and imported a substantial quantity of cocaine. Each was sentenced to six years’ imprisonment.

The sentencing judge applied the existing guideline approach in R v Aramah [1982] 4 Cr App R(S) 407. The appellants accepted that approach supported the sentences under current guidance, but contended that a Sentencing Advisory Panel consultation paper indicated that the sentences were excessive. They also invited the court to revise its guidance for drug couriers.

The central issue was whether unadopted consultation proposals could justify interfering with sentences imposed under existing Court of Appeal guidance.

1. Both appeals were dismissed. The sentencing judge correctly applied the existing guideline decision in R v Aramah [1982] 4 Cr App R(S) 407. The six-year sentences therefore disclosed no error warranting appellate intervention.

2. Sentencing Advisory Panel proposals are part of a consultation process. They may be amended after consultation, considered by the Sentencing Council, and may or may not result in a definitive guideline. They are of considerable background interest, but do not themselves provide guidance capable of displacing or weakening existing guideline decisions of the court.

3. The court accepted the distinction drawn in the earlier authorities between non-binding Panel advice and definitive guidance. Only definitive guidance issued by the Sentencing Council, and the existing guidance of the Court of Appeal unless and until displaced, is to be applied by sentencers. A sentencing appeal cannot properly be founded on a consultation proposal where the judge has applied the governing guidance.

4. The court also declined to issue revised guidance for drug couriers by reference to the provisional proposals. The statutory guideline-making process was under way and the content of any eventual definitive guideline was uncertain. Judicial anticipation of that outcome would create inconsistency and incoherence. It was premature to intervene.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 200, granted Tabuns leave to appeal and dismissed both appeals against sentence.
• Crown Court at Isleworth: On 10 September 2009, Judge Katkhuda sentenced each appellant to six years’ imprisonment after guilty pleas to fraudulent evasion of the prohibition on importing cocaine.