Khan, R v

Under the Definitive Guideline for Drugs Offences, an offender’s role must be assessed from evidence that supports the relevant indicators of culpability. The value and quantity of drugs do not, without more, establish an expectation of substantial personal gain. Storage at a genuine business does not itself show that the business was a criminal front, and imported packaging does not establish links with the original source.

An exceptionally serious medical condition may justify a substantial reduction in sentence where imprisonment will have a much greater impact than usual and will make necessary treatment particularly difficult. The public interest may nevertheless require that treatment be administered in prison.

The appellant was convicted at Luton Crown Court of possessing 15 kilograms of cocaine with intent to supply. The offence was within Category 1 of the Definitive Guideline for Drugs Offences. The sentencing judge found that he had a leading role and imposed 16 years’ imprisonment.

On the sentence appeal, the appellant challenged the leading-role finding. He also relied on beta thalassaemia major, a serious congenital blood disease requiring regular transfusions and treatment for severe iron overload, together with a kidney disorder that complicated that treatment. The central issues were the proper assessment of role and the sentencing effect of his medical condition.

Appeal allowed. The Court quashed the 16-year sentence and substituted 10 years’ imprisonment.

1. The offence plainly involved Category 1 harm. The 15-kilogram quantity, three times the guideline’s indicative quantity, and the presence of an additional harmful substance made the harm extremely high. That did not, however, justify the separate finding that the appellant had a leading role.
2. The evidence did not establish that the appellant expected substantial financial gain. The prospective profit from onward supply did not show his own likely share. His long-established takeaway business was genuine, although he used it to store the drugs, and was not shown to be a front for drug dealing. Nor did the drugs’ imported packaging establish that he personally had links with the original source. He should therefore have been sentenced on the basis of a significant role, for which the Category 1 starting point was 10 years and the range was 9 to 12 years.
3. The quantity remained capable of justifying an increase above the starting point. However, the appellant’s grave medical condition, its treatment requirements, and the greater impact of imprisonment were substantial mitigation. Consistently with R v Stevenson [2018] EWCA Crim. 318, the Court was entitled to take those matters into account.
4. The updated consultant’s letter was properly admitted under section 23 of the Criminal Appeal Act 1968. A lengthy custodial sentence remained inevitable and treatment had to be delivered in prison. Nevertheless, the exceptional medical circumstances justified reducing the sentence significantly below that otherwise required by the offence’s seriousness.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 10 years’ imprisonment: [2018] EWCA Crim 2221.
• Crown Court at Luton: Following conviction for possession of cocaine with intent to supply, imposed 16 years’ imprisonment on 16 May 2018.