Allan & Ors, R. v

A sentencing court must sentence for the offence charged and admitted. Where the evidence suggests a wider enterprise involving robbery or burglary, but the indictment alleges only conspiracy to supply a Class C drug, a sentence appropriate to the wider uncharged criminality will be excessive.

The offender’s role must be founded on the evidence. In the absence of evidence identifying defendants as organisers or prime movers, they should not be sentenced on that basis. Personal mitigation has limited weight in commercial drug trafficking, but it remains relevant within a sentence properly calibrated to the offence and role proved.

Five appellants pleaded guilty in the Crown Court at Coventry to a conspiracy to supply cannabis, a Class C drug. The prosecution evidence alleged a sophisticated national scheme in which cannabis factories were located, raided and stripped of cannabis, sometimes through violence or its threat.

The sentencing judge treated the appellants as prime movers in a conspiracy which in substance involved robbery, burglary and drug supply. He adopted a starting point of 12 years’ imprisonment and imposed eight years after credit for guilty pleas.

On appeals against sentence, the common issues were whether the starting point was excessive for the offence charged and whether the evidence justified sentencing each appellant as a prime mover.

1. The appeals were allowed. The sentences of eight years’ imprisonment were quashed. Four years’ imprisonment was substituted for Allan, May, Brandon and Bisset. Gilani received three years and six months to reflect his earlier plea.

2. The indictment failed to reflect the three distinct aspects of the alleged enterprise: conspiracy to rob, conspiracy to burgle and conspiracy to supply cannabis. Properly framed charges would have made clear what a guilty plea admitted and would have enabled disputed factual matters to be resolved. The judge’s 12-year starting point could have been appropriate for the wider case advanced by the Crown, but it was too high for the admitted offence of conspiracy to supply a Class C drug.

3. The evidence did not establish that any appellant obtained the intelligence used to identify cannabis factories, distributed the drugs, or had the criminal lifestyle said to support a leading role. The prosecution could not distinguish their positions in the hierarchy and had accepted that Gilani was not an organiser or orchestrator. That concession should have applied to all five appellants. They were to be sentenced as enthusiastic foot soldiers in the drug-supply conspiracy, not as prime movers in a robbery conspiracy.

4. The court took account of the sentencing guidance in Attorney-General’s Reference No. 22 of 2010 [2010] EWCA Crim 1754. Personal mitigation was of limited value where drug trafficking was undertaken for personal gain. It did not justify distinctions between these appellants once their comparable involvement had been identified, save for Gilani’s earlier plea.

• Court of Appeal (Criminal Division) allowed the appeals against sentence, quashed the eight-year terms, and substituted terms of four years for four appellants and three years and six months for Gilani.

• Crown Court at Coventry His Honour Judge Coates sentenced each appellant to eight years’ imprisonment after guilty pleas to conspiracy to supply cannabis.