Burdfield & Anor v R.

When an offender receives credit both for a guilty plea and for assistance under Serious Organised Crime and Police Act 2005, the sentencing judge must identify and apply the two reductions separately. Section 73(3) indicates that the non-section 73 reduction should be identified first, although the arithmetical order does not affect the result. A sentencing starting point must also fairly reflect the offender’s role, the duration of participation, and the effect of fear, violence and intimidation. Failure to reflect those matters may render the sentence manifestly excessive.

The appellants pleaded guilty in the Crown Court at Winchester to conspiracy to supply Class A cocaine. They were subordinate participants in a large cocaine-trafficking organisation controlled by a co-defendant. Both had provided assistance falling within section 73 of the Serious Organised Crime and Police Act 2005; both had also pleaded guilty.

Mrs Justice Nicola Davies sentenced Burdfield to four years and three months’ imprisonment and D’Cruze to four years’ imprisonment. With leave of the single judge, they appealed their sentences. They contended that the starting points were excessive and that the judge had failed to give and identify the separate reductions for their pleas and their assistance.

1. The appeals were allowed to the extent set out in a separate confidential judgment. The court quashed the sentences and substituted sentences which it considered appropriate.

2. The eight-year starting point for D’Cruze was too high. He was essentially a low-level retail dealer, and fear and intimidation had materially contributed to his offending. Burdfield’s role was more serious and longer, but his starting point of eight and a half years was also too high. Violence and intimidation had likewise affected his conduct and caused him to flee.

3. The judge failed to comply with the requirements of section 73(3) and (4) of the Serious Organised Crime and Police Act 2005. The reductions for a guilty plea and for section 73 assistance had to be identified and separately applied. The court applied Blackburn [2007] EWCA Crim 2290 on that point. Section 73(3) indicated that the discount other than the section 73 discount should be identified first, although the order made no arithmetical difference.

4. The combination of excessive starting points and the failure properly to reflect the distinct reductions meant that the sentences were manifestly excessive. The substituted terms were contained in the confidential judgment available to the prosecution, appellants and their representatives unless the court otherwise ordered.

• Court of Appeal (Criminal Division) — Allowed the sentence appeals to the extent set out in a separate confidential judgment; quashed the sentences and substituted sentences considered appropriate.
• Crown Court at Winchester — On 16 March 2011, Mrs Justice Nicola Davies sentenced Burdfield to four years and three months’ imprisonment and D’Cruze to four years’ imprisonment following guilty pleas to conspiracy to supply Class A cocaine.