Cooper & Ors, R. v

In sentencing drug conspiracies, a judge may draw evidence-based inferences about quantities trafficked beyond those actually seized, provided speculation is avoided. Under the Sentencing Council’s Definitive Guideline, harm is assessed at step 1 by the weight of the product. Purity is considered at step 2 and should not be used to recalculate the quantity as though the drugs were 100 per cent pure.

Drugs at a purity commonly found in street supply are not thereby of “low purity” for mitigation. An apparent disparity between offenders does not establish error where the challenged sentence remains within the proper range. A sentencing judge may determine the factual basis after conviction and may accept reliable parts of a witness’s evidence.

Eight appellants appealed sentences imposed in the Crown Court at Lincoln on 8 February 2016 for their involvement in conspiracies to supply cocaine, methylmethcathinone, heroin and amphetamine during 2014.

The conspiracies involved organised groups in Grantham, Manchester and Nottinghamshire. The sentencing judge inferred from surveillance, telephone and other evidence that the Grantham group had received about 40 kilograms of Class A drugs, as well as Class B drugs. He applied the Sentencing Council’s Definitive Guideline to assess harm, culpability and the overall criminality of each appellant.

The appeals challenged the inferred quantities, the treatment of purity, role categorisation, disparity, factual findings and totality. The central question was whether the individual sentences were wrong in principle or manifestly excessive.

1. The appeals were allowed only in part. The sentences on count 4 imposed on Straw and Sly were quashed and replaced with concurrent sentences of two years’ imprisonment. Darby’s concurrent sentences were replaced with six years on count 1 and two years on count 2. Those variations did not reduce Straw’s or Sly’s total sentences. All other appeals were dismissed.

2. A sentencing judge in a conspiracy case may infer further drug transactions from accepted surveillance, telephone and other evidence. The judge must avoid speculation, but need not confine the assessment of overall criminality to drugs seized on arrest. Here, the findings as to scale and quantity were legitimate evidence-based inferences.

3. Under the Definitive Guideline, the quantity used to assess harm at step 1 is the weight of the product. Purity falls for consideration at step 2. The court applied R v Boakye [2012] EWCA Crim 838 and rejected an arithmetical conversion of the seized drugs into an equivalent quantity at 100 per cent purity. Drugs at a purity commonly found in street supplies do not routinely constitute “low purity” mitigation. The court approved the warning in R v Kelly [2014] EWCA Crim 1141 that sentencing should not create an anomaly between suppliers at different levels of the chain; a high purity at an earlier stage may be an aggravating feature.

4. Where indicators point to different culpability categories, the sentencing judge must balance them to reach a fair assessment. The judge was entitled to classify Ferry, Higgs, Straw and Sly as leading participants, and Hull and Frazier as significant participants. A participant in a conspiracy is culpable for the wider agreed course of criminal activity, not only for personally performed acts.

5. The judge was entitled, after Darby’s conviction, to determine the factual basis for sentence and to accept reliable parts of Frazier’s evidence while treating it with appropriate caution. Darby’s more limited role, personal mitigation and circumstances nevertheless justified a shorter total sentence. Cooper’s consecutive sentence properly reflected the grave aggravation of committing the offence while standing trial for a similar offence, with an adequate reduction for totality.

• Court of Appeal (Criminal Division): appeals against sentence allowed to the limited extent stated in [2017] EWCA Crim 558; otherwise dismissed.
• Crown Court at Lincoln: His Honour Judge Pini QC sentenced the defendants on 8 February 2016 for conspiracies to supply controlled drugs.