Hussain, R v

Where a drug sentencing guideline identifies high purity as an aggravating factor but gives no numerical threshold, the sentencing judge may assess purity using the evidence and judicial experience, including local conditions. A substantial previous conviction for the same offence and offending while on licence may properly increase seriousness. Under section 143(2) of the Criminal Justice Act 2003, a relevant previous conviction must be treated as an aggravating factor.

There is no double jeopardy where a defendant serves the unexpired part of an earlier sentence following licence recall while also serving a separate sentence for a new offence. The fact that remand time does not count towards the new sentence does not prevent aggravation for the previous conviction and breach of licence.

The appellant pleaded guilty at Stafford Crown Court to conspiracy to supply cocaine. He had participated in the transfer of 284 grams of cocaine with a purity of 72 per cent. The sentencing judge treated the purity as aggravating, and imposed six years and three months’ imprisonment.

The appellant appealed his sentence. He contended that 72 per cent purity was not properly treated as high, that the judge had imposed a double penalty by relying on his previous conviction and licence status while refusing to direct that remand time should count, and that the sentence was manifestly excessive.

1. Appeal dismissed. The sentence of six years and three months’ imprisonment was not manifestly excessive.

2. The applicable guideline placed the appellant in a significant role and harm category 3. Although the guideline did not define high purity, it expressly treated it as an aggravating factor. A sentencing judge was therefore entitled to make an assessment on the evidence and from experience of drug cases, including regional variation. The conclusion that cocaine of 72 per cent purity was high could not be criticised. The evidence also showed that the cocaine was to be mixed with cutting agents before sale, supporting the inference that the appellant was close to the source.

3. The appellant’s serious prior conviction for conspiracy to supply cocaine was a statutory aggravating factor under section 143(2) of the Criminal Justice Act 2003. The new offence, committed shortly after release on licence, was also a significant aggravating factor because it showed higher culpability.

4. The judge’s refusal to direct that time on remand should count towards the new sentence was justified. Applying R v Kerrigan [2014] EWCA Crim 2348, such a direction required exceptional reasons. The appellant had materially contributed to the delay through his conduct of the proceedings and his late guilty plea.

5. There was no double jeopardy. The licence recall concerned the unexpired sentence for the earlier offence, whereas the new sentence punished the later offence. The appellant remained liable to serve both, although the new sentence ran concurrently with the period served following recall. The quantity above the guideline indication, high purity, the previous identical offence, offending on licence, and the limited credit properly available for the late plea justified a sentence at the top of the guideline range.

• Court of Appeal (Criminal Division): Dismissed the sentence appeal: [2018] EWCA Crim 509.
• Crown Court at Stafford: On 26 July 2017, following a guilty plea to conspiracy to supply cocaine, sentenced the appellant to six years and three months’ imprisonment.