Attorney General Reference No 017 Of 2011

Those who carry, warehouse or mind class A drugs for supply will, save in the most exceptional circumstances, receive an immediate custodial sentence. Personal mitigation has limited weight because of the serious harm caused by class A drug distribution.

Sentence must reflect the quantity and purity of the drugs, the offender’s position in the distribution hierarchy, and the duration and persistence of the offending. A courier is not automatically more culpable than a street dealer; culpability depends on all the circumstances. A suspended sentence is inappropriate where immediate custody is required to maintain consistent sentencing and public confidence.

The offender pleaded guilty at Carlisle Crown Court to possessing 80.68 grams of heroin, at 37 per cent purity, with intent to supply. He had acted as a courier from London to Penrith and was to receive five grams of heroin as payment.

The Crown Court imposed 12 months’ imprisonment, suspended for 24 months, with supervision and 240 hours’ unpaid work. The Attorney General sought permission to refer the sentence as unduly lenient.

The central issue was whether, despite the offender’s rehabilitation, guilty plea and personal mitigation, an immediate custodial sentence was required for his planned carriage of a valuable class A drug consignment.

1. The Attorney General’s reference was allowed. The suspended sentence, supervision order and unpaid-work requirement were quashed. The court substituted 20 months’ immediate imprisonment, with 107 days to count towards the sentence.

2. The court rejected the submission that drug couriers are necessarily more seriously involved in distribution than street dealers. Individual culpability depends on all the circumstances. The relevant considerations include the quantity and purity of the drugs, the offender’s position in the distribution hierarchy, and the duration and persistence of the offending.

3. The court reviewed the sentencing guidance in Aramah [1982] 4 Cr App R (S) 407 and Satvir Singh [1988] 10 Cr App R (S) 402. Carrying, warehousing and minding class A drugs with intent to supply remain offences requiring immediate custody except in the most exceptional circumstances. The usual starting point is five to seven years, subject to the relevant sentencing factors; much larger quantities may justify a higher starting point.

4. On the facts, the quantity was modest compared with Attorney General’s Reference (No 146 of 2002) (Robert Stewart) [2003] EWCA Crim 1010. The offender’s isolated offending and mitigation justified a starting point of three to four years. After full credit for the guilty plea, two years’ imprisonment was the least appropriate immediate sentence.

5. The Crown Court had wrongly calculated the time the offender would serve. An untagged curfew did not count under sections 240 or 240A of the Criminal Justice Act 2003. Any discretionary credit for it had to be reflected by reducing the sentence. The court reduced the substituted sentence for the unpaid work, supervision, second sentencing hearing and curfew period.

• Court of Appeal (Criminal Division) — Granted leave on the Attorney General’s reference, held the suspended sentence unduly lenient, and substituted 20 months’ immediate imprisonment.
• Carlisle Crown Court — On 25 February 2011 imposed 12 months’ imprisonment suspended for 24 months, with 12 months’ supervision and 240 hours’ unpaid work.