Boakye & Ors, R. v

A sentencing guideline operates prospectively where it expressly applies to offenders sentenced on or after a stated commencement date. A sentence that was lawful and accorded with the tariff and information available when imposed does not become manifestly excessive merely because a later guideline reduces sentencing levels for comparable offending.

On an appeal against sentence, the court assesses the sentence by reference to the facts, circumstances and prevailing tariff at the date of sentence, subject to the limited reception of fresh information. A consultation paper is not a reliable basis for anticipating the final form of a later guideline.

The best interests of a defendant’s children may be relevant to sentence, especially near the custody threshold, but they are not a primary consideration in the sentencing of an adult and will rarely outweigh the public interest in punishment for serious crime.

Six applicants had received custodial sentences for importing sizeable quantities of cocaine. Each was sentenced before a new Sentencing Council guideline for drug offences came into force on 27 February 2012. Four applicants sought substantial extensions of time to apply for leave to appeal; two had applied in time.

The applicants accepted that their sentences conformed to the sentencing authorities and practice prevailing when imposed. They nevertheless contended that the new guideline, which could produce lower sentences for some exploited drug couriers, rendered their sentences manifestly excessive. They also relied on the effect of imprisonment on their children.

The central questions were whether the new guideline operated retrospectively, whether a consultation paper or a pending appeal altered the applicable tariff, and what relevance the interests of offenders’ children had in sentencing for serious drug importation.

1. The applications for leave to appeal against sentence were refused. The court also refused the requested extensions of time. The applicants had deliberately waited to rely on the new guideline, and no injustice or other compelling reason justified reopening sentences which had been properly imposed under the then prevailing practice.

2. The Sentencing Council guideline applied only to offenders sentenced on or after its stated commencement date. It did not retrospectively render earlier sentences manifestly excessive. The court endorsed R v Graham [1999] 2 Cr App R(S) 312: sentencing levels may rise or fall through legislation, guidelines and changing circumstances, but those changes do not normally reopen concluded cases. Section 125 of the Coroners and Justice Act 2009 reinforced that conclusion because the guideline itself directed its temporal application.

3. Where an appeal is brought in time, the appellate question remains whether the sentence was manifestly excessive or wrong in principle when imposed. It is answered by reference to the facts, circumstances and tariff at that date, subject only to the limited admission of fresh information. A consultation paper may sometimes be known to a sentencer, but it cannot safely be treated as a prediction of the final guideline.

4. Article 3(1) of the United Nations Convention on the Rights of the Child did not make the interests of an adult offender’s children a primary consideration in general sentencing practice. Those interests can be relevant, particularly where custody is discretionary or the offence is at the lower end of seriousness. They will rarely prevail over society’s interest in the consistent punishment of serious offending, and are less likely to do so as the offence becomes more serious.

5. The court added non-operative guidance on the new drug-offence guideline. It requires an individual assessment of harm and culpability, rather than treating every drug courier alike. It distinguishes exploited or pressured couriers from informed couriers acting freely for financial advantage. Its drug weights are gross weights, not purity weights, and its listed quantities are indicative starting-point measures rather than rigid thresholds.

• Court of Appeal (Criminal Division) Refused all six applications for leave to appeal against sentence and declined to extend time for the four late applications.
• Sentencing courts Each applicant had been sentenced before 27 February 2012 for importing cocaine. No lower-court citations were stated in the judgment.