Welsh & Ors v R

The definitive drug-offences guideline applies to conspiracy to supply as well as substantive supply offences. Its role descriptors and quantity categories are flexible indicators, not mutually exclusive boxes or arithmetical thresholds.

In exceptionally large commercial supply conspiracies, sentencing requires an evaluative assessment of harm, role and comparative culpability. Sentences towards the upper range may properly be close together because of the limited range available for differentiating numerous serious offenders. A disparity appeal succeeds only where the sentencing judge failed in principle or discretion to reflect comparative criminality. Personal mitigation, including family hardship, has limited weight in offending of the utmost gravity.

Thirty men were sentenced at the Crown Court at Liverpool for a large Liverpool-to-Glasgow conspiracy to supply heroin and cocaine. The operation used safe houses, drug-processing equipment, couriers and repeated journeys to Glasgow. The court inferred that the conspiracy involved more than 100 kilograms of class A drugs, with an estimated street value of £100 million to £200 million.

Sixteen offenders appealed against sentence. Four renewed refused applications for permission to appeal, and two also sought extensions of time. The principal challenges concerned the applicability and operation of the definitive drug-offences guideline, parity between offenders at different levels of the conspiracy, the relationship between supply and importation sentencing, and personal mitigation.

1. All appeals and applications were dismissed. The court would have extended time where necessary if an appeal had merit, but none did.

2. The definitive guideline applied to a conspiracy to supply controlled drugs. It would be anomalous for sentencing guidance to depend on the form of the charge. Its descriptions of leading, significant and lesser roles were apt for a multi-offender conspiracy, and its categories operate on a sliding scale rather than as rigid and exclusive boxes.

3. The judge had correctly used the guideline despite initially considering that it did not strictly apply. The scale of the operation, repeated offending, quantities substantially above category 1 and potential profits justified starting points above 20 years for the principal offenders. The guideline did not require the highest sentences to be reserved for importation cases. Importation complexity may increase culpability at the very highest level, but leading and significant roles in a highly structured and persistent supply operation could warrant comparable sentences.

4. Where the harm greatly exceeds category 1, the judge must scale sentences across the different roles while maintaining a coherent structure. At the highest levels, some crowding or bunching of sentences is inevitable. Similar sentences may nevertheless reflect different forms of culpability. An appellate court does not intervene merely because it might have made a slightly greater distinction; it asks whether the judge failed in principle or in the reasonable exercise of discretion to reflect comparative criminality.

5. Under Criminal Justice Act 2003, prior relevant convictions aggravate seriousness, while good character and personal circumstances may mitigate. In offences of this seriousness, family hardship and other personal mitigation can have little effect on the overall sentence.

6. The sentencing judge had carefully assessed the respective roles and properly differentiated the organisers, leading participants, significant participants, couriers and Scottish conspirators. None of the challenged sentences was wrong in principle or manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the sentence appeals and renewed applications in [2014] EWCA Crim 1027.

• Crown Court at Liverpool: His Honour Judge Aubrey QC sentenced 30 defendants between 13 and 20 May 2013 for their roles in the conspiracy to supply class A drugs.