Attorney General Refrence No 101 of 2009

A reduced sentence for a drug addict who supplies class A drugs is confined to the exceptional circumstances identified in R v Afonso. It does not apply to a commercial street dealer who holds stock and supplies ordinary customers, even if the dealer uses drugs and spends profits on an addiction.

A rehabilitative community order or suspended sentence may nevertheless be appropriate for serious drug offending where public confidence is maintained and reliable material provides a real basis to believe that the offender genuinely seeks to overcome addiction. The appellate court must assess whether the sentencing judge acted wrongly in principle on the material then available. It must not substitute hindsight for that assessment.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a Recorder’s sentence following the offender’s late guilty pleas to two offences of possessing drugs with intent to supply.

The offender held cocaine and cannabis, drug-packaging materials, scales and phones containing requests for supplies. His unchallenged basis of plea accepted limited supply to acquaintances while primarily financing his own substantial drug use. The Recorder imposed concurrent and consecutive terms totalling 12 months’ imprisonment, suspended for two years, with supervision and drug rehabilitation requirements.

The central issue was whether the Recorder had acted wrongly in principle by adopting a rehabilitative sentence instead of the substantial immediate custodial term ordinarily indicated for commercial street dealing in class A drugs.

Disposition

1. The court granted leave for the reference but did not alter the sentence. The correct appellate question was whether, on the information available at sentencing, the Recorder had acted wrongly in principle. Subsequent failure in rehabilitation could not justify hindsight review.

2. The offender’s supply was not within the narrow exception explained in R v Afonso, [2004] EWCA Crim. 2342. That exception is confined to an out-of-work addict who has no stock and makes only a few supplies, solely to undercover officers, in order to feed the addiction. A commercial street dealer does not gain a lower sentencing level merely because he uses drugs or spends profits on his own consumption. On the ordinary approach, the offending warranted a substantial custodial term.

3. However, rehabilitation was not excluded in principle. Applying the conditions identified in Attorney General’s Reference No 64 of 2003 (Boujettif and Harrison), [2003] EWCA Crim. 3514, the offence had to be one for which a non-custodial sentence would not undermine public confidence, and there had to be a proper evidential basis for a real belief that the offender wished to give up drugs.

4. The pre-sentence material cast serious doubt on the offender’s motivation. Yet credible evidence of a stabilising relationship and a realistic employment opportunity entitled the Recorder to make the difficult evaluative judgment that rehabilitation could succeed. The sentence was lenient, but it was not unduly lenient or wrong in principle.

5. The court also explained that, on breach, a community order permits sentencing afresh under Schedule 8 paragraph 10 of the Criminal Justice Act 2003, whereas a suspended sentence may only be activated under Schedule 12 paragraph 8. A community order may therefore be the more flexible rehabilitative disposal where the offence would otherwise justify substantial custody.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to alter the sentence: [2010] EWCA Crim 238.
• Crown Court (Recorder): Following late guilty pleas to two drug-supply offences, imposed total imprisonment of 12 months, suspended for two years, with supervision and drug rehabilitation requirements. No citation is stated in the judgment.