Lewis & Ors v R. Re Attorney General's Reference No. 15, 16 & 17 of 2012

The Definitive Guideline on Drugs Offences must be applied sequentially and as a flexible sentencing framework. At step one, the court must assess culpability through the offender’s role and potential harm through drug quantity. It must balance all relevant characteristics rather than treat the listed role indicators as exhaustive boxes.

The Guideline did not generally reduce sentences for drug importation. In a serious commercial operation involving quantities far above category 1, the court may depart substantially from the ordinary range, even where the offender has a lesser role. Sentencing remains governed by the overall seriousness of the offending, including culpability and harm.

These were three references by the Attorney General under section 36 of the Criminal Justice Act 1988, alleging that Crown Court sentences for drug-importation offences were unduly lenient. Each offender had been sentenced after the Definitive Guideline on Drugs Offences took effect on 27 February 2012.

Lewis and Wijtvliet were convicted after trial of importing a concealed load containing almost 100 kilograms of diamorphine and almost six kilograms of cocaine. Wijtvliet had organised and monitored the transport through his haulage business. Lewis drove the vehicle into the United Kingdom. Vriezen pleaded guilty to importing substantial quantities of methylethylcathinone, cannabis resin and amphetamine.

The common issue was whether the new Guideline had altered sentencing levels or prevented sentences above the stated category ranges for offenders involved in massive importations.

1. The references were allowed. The sentences imposed on all three offenders were unduly lenient and were replaced or increased.

2. The Definitive Guideline is not a statute requiring strict construction. Its eight steps should be followed in sequence where applicable. At step one, culpability is assessed by the offender’s role and harm by the weight or quantity of the drug. Purity is addressed only at step two. The characteristics listed for leading, significant and lesser roles are non-exhaustive, and the labels do not alter the established substance of the drugs hierarchy.

3. A sentencing judge must make a fair overall assessment of culpability and harm. The judge is not bound by agreed submissions on role and should state the step-one conclusions in sentencing remarks. The ranges are not rigid boxes. A serious commercial operation involving quantities significantly above category 1 can justify a sentence outside the range, including a sentence of 20 years or more depending on role. The Guideline did not introduce a general reduction in sentences, save for the particular class of vulnerable and exploited couriers described as drugs mules. This construction was consistent with R v Boakye and Others [2012] EWCA Crim 838.

4. Wijtvliet played a leading or highly significant role in a sophisticated, massive Class A importation. His sentences of 13 years and eight years were quashed and replaced by concurrent sentences of 20 years and 14 years. Lewis had played a significant, rather than lesser, operational role. His sentences of nine years and six years were quashed and replaced by concurrent sentences of 13 years and nine years.

5. For Vriezen, evidence was insufficient to establish an appropriate indicative quantity for methylethylcathinone. The court therefore adopted the most favourable available approach, by reference to cannabis quantities. Even on that basis, the commercial importation and Vriezen’s significant role required an overall sentence of at least eight years before plea credit. His sentence on the lead count was increased from three years and six months to six years; the other concurrent sentences remained unchanged.

• Court of Appeal (Criminal Division). On Attorney General references under section 36 of the Criminal Justice Act 1988, the court allowed the references and increased the sentences: [2012] EWCA Crim 1414.

• Crown Court. Wijtvliet and Lewis were sentenced by His Honour Judge O'Mahony on 2 March 2012 following convictions for Class A drug importation. Vriezen was sentenced by His Honour Judge Martin Joy following guilty pleas to Class B drug-importation offences.