Attorney General's Reference Nos 61, 62 AND 63 of 2011

A draft sentencing guideline issued for consultation does not displace or alter existing sentencing guidance from the Court of Appeal. It may form part of the background, but a sentencer must not anticipate a future reduction in sentences before a definitive guideline takes effect.

Supplying or facilitating the street supply of class A drugs remains serious even where the offender has no stock and seeks only drugs to sustain an addiction. A non-custodial sentence for an offender with relevant convictions requires truly exceptional circumstances. The fact that drugs were supplied to undercover officers does not, by itself, reduce the gravity of the offence.

The Attorney General referred as unduly lenient the sentences imposed on Tina Robson, Wayne Froud and Kevin Gaunt after guilty pleas to offences of supplying, or being concerned in the supply of, cocaine, heroin and crack cocaine.

During an undercover police operation, the offenders facilitated small street-level purchases of class A drugs. They did not deal for profit or hold their own stock, but each had relevant convictions and significant personal difficulties. The sentencing judge treated a draft consultation guideline as indicating that sentencing levels were falling, and imposed immediate or suspended sentences of no more than eight months, or a community order.

The central issue was whether the judge could sentence by reference to an anticipated definitive guideline rather than the existing appellate guidance.

1. The Attorney General's references were allowed. The court granted leave, quashed all three sentences and substituted immediate concurrent terms of imprisonment: two and a half years for Gaunt, and 18 months each for Froud and Robson.

2. A draft guideline in a public consultation process is not sentencing guidance capable of displacing, amending or undermining existing Court of Appeal guidance. The court followed Valentas [2010] EWCA Crim 200. A draft may change before final publication, and a definitive guideline does not apply until after its prescribed interregnum. It was therefore not open to the judge to sentence on the basis that a reduction in sentences for class A drug supply was imminent.

3. The offenders' subordinate role, absence of financial gain and lack of their own stock were mitigating features. They did not, however, justify non-custodial sentences. Their repeated offending, relevant convictions and the seriousness of distributing class A drugs meant that none of the cases was exceptional.

4. The exceptional outcome in Attorney General's Reference Nos 68 and 92 of 2007 (re P) [2007] EWCA Crim 2634 was distinguishable. There, the offender had demonstrated effective engagement with rehabilitation, there had been delay, and the sentencing judge had consciously adopted an exceptional course. Those features were absent here.

5. The court took account of Leeworthy [2010] EWCA Crim 464 as a comparable facilitator case. It also allowed for the fact that each offender had begun serving the original sentence while knowing it was under challenge. Gaunt received credit for 121 days under section 240 of the Criminal Justice Act 2003. Warrants were directed, subject to surrender arrangements.

• Court of Appeal (Criminal Division): allowed the Attorney General's references, quashed the original sentences and substituted immediate custodial sentences.

• Crown Court: on 4 July 2011 imposed eight months' imprisonment on Gaunt, a suspended six-month sentence on Robson, and a community order on Froud.