Dyer & Ors, R. v

A sentencing court must follow a relevant Definitive Guideline under section 125(1) of the Coroners and Justice Act 2009, unless doing so would be contrary to the interests of justice. Street dealing is category 3 offending regardless of the quantity supplied or whether the recipient is an undercover test-purchase officer.

A dealer who funds drug use or living costs through supply is motivated by financial or other advantage and will ordinarily have a significant role. Pre-guideline sentencing authorities cannot displace the guideline. Differences between sentences imposed on unrelated offenders, even in the same police operation, do not ordinarily establish disparity or justify an appeal.

Eight offenders appealed sentences imposed by His Honour Judge Robbins in the Crown Court at Southwark on 14 September 2012. They had pleaded guilty to offences involving the street supply, offer to supply, or conspiracy to supply Class A drugs during Operation Jolt, an investigation into drug dealing around Wardour Street, Soho.

The appeals raised the application of the Sentencing Council’s Definitive Guideline for drug offences, the continuing relevance of pre-guideline authority, the classification of each offender’s role, mandatory minimum sentencing, and alleged disparity with sentences imposed on other Operation Jolt defendants.

1. All eight appeals were allowed to the extent of reducing the custodial terms. The court substituted concurrent sentences of four years for Dyer, three years for Pecco, 40 months for Bailey, five-and-a-half years for Davis, three years for Thompson and McKrieth, four years for Reid, and three years for Edwards. Bailey’s forfeiture orders remained in force.

2. Section 125(1) of the Coroners and Justice Act 2009 required the sentencing judge to follow the relevant Definitive Guideline unless the interests of justice required departure. Street dealing is category 3 offending regardless of quantity. Supply to a test-purchase officer does not reduce harm, because the dealer’s intended recipient is a matter of chance.

3. The role descriptors were broad and non-exhaustive. Dealers who supplied in order to fund their own drug use or basic living needs were motivated by financial or other advantage and did not thereby fall within the lesser role. The descriptor concerning awareness of the scale of an operation had limited significance for street dealing, where the category was already fixed.

4. Pre-guideline decisions, including R v Afonso [2004] EWCA Crim 2342, had been overtaken by the guideline and could not be directly applied. The Court of Appeal could explain and amplify a guideline, and identify cases where justice justified departure, but could not issue a conflicting guideline or restore a pre-guideline approach.

5. Following R v Broadbridge [1983] 5 Cr App R(S) 269, an appropriate sentence was not rendered wrong because another offender had fortuitously received undue leniency. The limited disparity principle discussed in R v Fawcett 5 Cr App R(S) 158 did not assist offenders who were not co-offenders in a joint enterprise.

• Court of Appeal (Criminal Division): appeals against sentence allowed to the specified extent: [2013] EWCA Crim 2114.
• Crown Court at Southwark: His Honour Judge Robbins imposed sentences on 14 September 2012. No citation was stated in the judgment.