Marland, R. v

For a third qualifying drug-trafficking offence, the court must impose the statutory minimum sentence unless particular circumstances relating to the offences or offender make that sentence unjust in all the circumstances. Ordinary mitigation must not be treated as particular circumstances so as to defeat Parliament’s deterrent purpose.

The age of prior qualifying convictions, rehabilitation efforts, addiction-related difficulties, and a role below the highest level of supply may be relevant. They do not, alone or cumulatively on the facts found, necessarily make the minimum sentence unjust. A comparison with the applicable sentencing guideline is informative, but must allow for the statutory deterrent element. A guilty plea may reduce the seven-year minimum to 80 per cent.

The Solicitor General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed at Preston Crown Court on 13 April 2018 for three supplies of heroin contrary to section 5(3)(a) of the Misuse of Drugs Act 1971.

The offender had pleaded guilty and received concurrent terms of 45 months’ imprisonment. He had two previous qualifying convictions for possession of Class A drugs with intent to supply. He was therefore subject to the minimum-sentence regime in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000.

The sentencing judge declined to impose the seven-year minimum because of the age of the earlier convictions, the absence of recent offending, and the offender’s place in the supply hierarchy. The central issue was whether those matters made the statutory minimum unjust in all the circumstances.

1. The reference was allowed. The concurrent sentences of 45 months were unduly lenient. They were increased to concurrent terms of 67 months’ imprisonment, representing the seven-year statutory minimum less the maximum 20 per cent credit for guilty pleas.

2. Section 110(2) of the Powers of Criminal Courts (Sentencing) Act 2000 requires a minimum seven-year custodial sentence for a qualifying third drug-trafficking offence unless particular circumstances relating to the offences or offender make that result unjust in all the circumstances. The court is not required to find exceptional circumstances. It must nevertheless give effect to Parliament’s deterrent purpose and must not treat normal mitigation as particular circumstances.

3. The court approved the approach in R v Lucas [2012] 2 Cr App R(S) 14. The potential harshness of the statutory regime is a matter for Parliament. The lapse of time since a qualifying conviction may be taken into account, but does not of itself make the minimum sentence unjust. The court explained R v McDonagh [2005] EWCA Crim 2742 consistently with that conclusion.

4. The offender’s addiction-related difficulties, efforts in custody to become drug-free, and role in street dealing did not meet the statutory test. He had played a significant role in three supplies of heroin. His offending fell within a guideline range which reached the statutory minimum. Although comparison with the guideline sentence may assist in testing possible injustice, it must be measured against the deterrent element of section 110. Section 144(2) of the Criminal Justice Act 2003 permitted the 20 per cent reduction for his guilty pleas.

• Court of Appeal (Criminal Division): On a Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentences unduly lenient and increased them: [2018] EWCA Crim 1770.
• Crown Court at Preston: On 13 April 2018, the offender received concurrent sentences of 45 months’ imprisonment for three supplies of heroin.