Ajayi & Anor , R. v

Sentencing for drug supply involving cuckooing must remain within the Sentencing Council’s Drug Offences Guideline. The operation’s sophistication and exploitation may require particularly careful assessment of the offender’s role.

An organiser will ordinarily have a leading role. A local manager or enforcer may also do so if the evidence supports it. Other participants will ordinarily have a significant role, but pressure, intimidation, reward, coercion and exploitation may increase culpability or mitigate that of a vulnerable recruit. Sentencers must avoid double counting and impose a just and proportionate sentence.

Local prevalence may be considered only where the conditions governing that issue are established.

Two unrelated applications to appeal sentence were heard together because both concerned drug supply through a cuckooing operation, also described as running county lines.

Ajayi had been convicted at Ipswich Crown Court of offering and possessing Class A drugs with intent to supply. He received concurrent sentences of six years and six months’ imprisonment. He had used the home of a vulnerable heroin user in Leiston as a base for supplying drugs from London.

Limby, aged 17 at sentence, pleaded guilty at Portsmouth Crown Court to possessing cocaine and heroin with intent to supply. He received concurrent two-year detention and training orders. His unchallenged basis of plea stated that an older person had pressured him to work off a debt.

The common issue was how cuckooing should affect sentencing under the applicable guideline.

1. The applications were refused. Neither Ajayi’s six-and-a-half-year concurrent sentences nor Limby’s concurrent two-year detention and training orders were manifestly excessive.

2. Cuckooing is a form of drug supply in which dealers from a metropolitan area establish themselves in a smaller community, commonly by taking over premises or networks belonging to vulnerable users or local dealers. It involves added sophistication beyond ordinary street dealing. Sentencers should therefore scrutinise the evidence and the offender’s place within the guideline’s three role categories with particular care.

3. A person organising such an operation from the metropolitan centre will clearly have a leading role. A local manager or enforcer may also have that role where the evidence shows, for example, substantial expected gain, influence over others in the chain, or direction of commercial buying and selling. Participants below that level will ordinarily have a significant role. Involvement of others through pressure, influence, intimidation or reward is especially material to culpability.

4. The court must not depart from the Sentencing Council’s Drug Offences Guideline merely because cuckooing is not expressly named. Where the evidence establishes such an operation, its features may be reflected in the assessment of role or, where appropriate, as an aggravating feature at step 2. The exploitation of a vulnerable recruit may instead mitigate that recruit’s position. Double counting must be avoided.

5. Considerations of local prevalence arise only if the conditions identified in R v Bondzie [2016] EWCA Crim 552 are met. That decision was not a guideline on sentence levels; its outcome applied the guideline to its own facts.

6. Ajayi was a commercial street dealer whose offending comprised distinct episodes over three months, including the exploitation of Prior by pressure, intimidation or reward. He fell towards the upper end of a significant role, and a sentence at the upper end of the applicable range after trial was justified.

7. Limby’s youth, the unchallenged evidence of pressure or coercion, and his acting at another’s behest made a lesser role appropriate. Nevertheless, his record, prior failure to comply with community orders, and criminal associations justified upward movement. After allowing for youth, mental difficulties and his guilty plea, the two-year detention and training order remained appropriate.

• Court of Appeal (Criminal Division) — refused both applications to appeal against sentence.
• Crown Court at Ipswich — convicted Ajayi of Class A drug supply offences and imposed concurrent sentences of six years and six months’ imprisonment.
• Crown Court at Portsmouth — sentenced Limby, following guilty pleas to two Class A possession-with-intent offences, to concurrent two-year detention and training orders.