Bailey & Anor R. v

For a sophisticated commercial drug operation involving quantities far above the highest guideline category, sentencing may properly move outside the guideline tables. The ultimate sentence is driven principally by the quantity of drugs and the offender’s role. The necessary uplift is not confined to offenders in a leading role: sentences must be scaled to reflect roles at every level. Previous convictions for serious drug trafficking are a substantial aggravating feature. A sentence is unduly lenient where it fails adequately to reflect those matters.

This was an Attorney General’s reference of the sentences imposed on Everton Bailey and David Reece following their convictions after trial at Preston Crown Court for four conspiracies to import and supply cocaine and heroin.

The conspiracies involved repeated importations over about ten months. A final intercepted consignment contained 142.5 kilograms of high-purity Class A drugs. The sentencing judge assessed both offenders as second-tier participants at the top end of a significant role and imposed concurrent terms of 16 years’ imprisonment.

The central issue was whether those sentences were unduly lenient in light of the exceptional scale of the operation, the offenders’ roles, and their previous convictions for drug trafficking.

The Attorney General’s reference was allowed. The court held that the concurrent 16-year sentences were unduly lenient and substituted concurrent terms of 19 years’ imprisonment for each offender.

1. The Sentencing Council’s Drug Importation Guideline contemplated sentences of 20 years or more where an operation was on the most serious commercial scale and involved quantities substantially above category 1. The authorities showed that the sentencing exercise in such cases is principally driven by both the quantity of drugs and the offender’s role.

2. The required uplift was not confined to leading offenders. Sentencers must scale sentences to reflect roles at every level. Although Bailey and Reece were not leading participants, the judge’s assessment that each was at the top end of a significant role was fully justified.

3. The conspiracy involved huge quantities of cocaine and heroin over multiple importations for wholesale distribution. Both offenders occupied senior second-tier roles and each had a previous conviction for significant drug trafficking. Those convictions were substantial aggravating factors. The judge should therefore have been considering sentences of at least 20 years.

4. In fixing the substituted terms, the court took account of the unchallenged 19-year sentence imposed on Starmer and of the higher-ranking offenders. Starmer’s sentence had reflected totality and his lack of previous convictions. To preserve proper sentencing consistency, the least appropriate substituted term for each offender was 19 years.

5. By way of guidance, the court reminded sentencing judges that a Registrar’s request for information on an Attorney General’s reference is narrowly confined to information known to the judge but absent from the papers. It is not an invitation to supplement or comment generally on sentencing remarks.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court found the sentences unduly lenient and substituted concurrent 19-year terms.
• Preston Crown Court: Following trial, Bailey and Reece were convicted of conspiracies to import and supply cocaine and heroin and each was sentenced on 9 March 2018 to concurrent terms of 16 years’ imprisonment.