O'Driscoll, R v

In a sentence appeal, the court must assess the definitive sentencing guidelines in light of the offender’s role, culpability and harm. It must also give proper effect to totality before standing back to assess the overall sentence.

Guidelines for a completed offence may assist as a sentencing yardstick for a related inchoate offence, even where they do not strictly apply. A substantial overall sentence for leading, organised and wide-ranging criminality is not manifestly excessive merely because it exceeds sentences commonly associated with other types of offending.

The appellant pleaded guilty in the Crown Court at Kingston upon Thames to eight offences arising from his leading role in an organised criminal network. The offences comprised conspiracy and attempts to handle stolen goods, transferring criminal property, supplying and offering to supply controlled drugs, and encouraging or assisting the transfer of a prohibited weapon and a robbery.

He received consecutive terms of five, six and five years’ imprisonment, producing a total sentence of 16 years. A five-year serious crime prevention order was also made.

By leave of the single judge, he appealed against sentence. He contended that the starting points were too high, that insufficient account had been taken of the role of undercover officers in expanding the criminality, and that his personal mitigation had received insufficient weight.

1. The appeal was dismissed. The total sentence of 16 years’ imprisonment was neither wrong in principle nor manifestly excessive.

2. The sentencing judge had correctly assessed the appellant as a leading participant in sophisticated and organised offending. The handling offences involved high-value stolen goods, including goods stolen to order and recently stolen property. They fell within the highest harm category, and the pre-plea starting point reflected the justified upper part of the applicable range.

3. The drug sentences also reflected substantial mitigation and totality. A six-year sentence after full credit represented a pre-plea starting point at the bottom of the category 2 leading-role range. The offer to supply 10,000 MDMA tablets would itself have fallen within category 1. The judge had therefore given a significant reduction when fixing the concurrent drug terms.

4. The robbery guideline did not strictly apply to the offences under the Serious Crime Act 2007. It nevertheless provided assistance in assessing culpability, potential harm and the appropriate sentence for conduct amounting to planning an armed robbery. A completed armed robbery would have attracted a category 1 starting point. A reduction was required because the offence was inchoate. The prohibited-weapon offence also carried a five-year minimum term, although the surrounding circumstances would ordinarily justify a higher sentence. The judge had again allowed substantial reductions for totality and mitigation.

5. The appellant’s criminality was materially more extensive than that of his co-defendants. The undercover operation did not make the proposed elevation of offending a sustainable basis for reducing sentence. On the evidence, the appellant’s responses revealed existing criminality at a level warranting very significant sentences.

• Court of Appeal (Criminal Division): By [2018] EWCA Crim 1415, dismissed the appeal against the total sentence of 16 years’ imprisonment.
• Crown Court at Kingston upon Thames: The appellant pleaded guilty on 31 March 2017. On 26 May 2017 he received consecutive terms totalling 16 years’ imprisonment and a five-year serious crime prevention order.