Assaf & Ors v R

In sentencing a serious drug-trafficking conspiracy, the court must assess each offender’s actual culpability. Guideline role labels cannot justify treating an enthusiastic participant as near-equivalent to the organiser without evidential support.

Youth and maturity remain relevant after age 18, but may carry reduced weight where educated offenders sustain a planned and sophisticated criminal enterprise. Online dealing does not itself reduce seriousness. At Step One, the drug guideline focuses on culpability and quantity; transactional violence is instead relevant, where present, as an aggravating feature at Step Two.

Credit for guilty pleas must reflect their true timing. Material delay and demonstrable post-offence change must also be taken into account.

Four former Manchester University students pleaded guilty to conspiracies involving the importation, exportation and supply of MDMA, 2CB, ketamine and LSD through the dark web and other channels. The conspiracies operated between 2011 and 2013. The enterprise used encrypted online accounts and cryptocurrency, and supplied substantial quantities of drugs.

At the Crown Court at Manchester, HHJ Leeming QC imposed concurrent total sentences ranging from 11 years 2 months to 15 years 3 months. The defendants appealed against sentence. They challenged, among other matters, the treatment of youth, online dealing, delay, plea credit, their comparative roles, and sentences for ketamine offences.

The central issue was whether the sentences properly reflected the appellants’ individual culpability and the applicable sentencing framework.

1. The appeals were allowed. The court granted the necessary extension of time and leave to appeal. It held that the sentencing judge’s overall approach was careful and appropriate, but that material adjustments were required.

2. The court endorsed the principle in R v Clarke and others [2018] EWCA Crim 185 that an offender’s youth and maturity remain relevant after 18. Its weight depends on the offending. It carried less force for these appellants because their sustained, sophisticated and financially motivated conspiracies did not demonstrate youthful immaturity.

3. Online supply was not inherently less serious than face-to-face dealing. A reduced risk of transactional violence did not alter the Step One assessment under the drug guideline, which concerns culpability and indicative drug quantity. Violence-related matters may instead aggravate sentence at Step Two. The court also rejected the contention that proof of a complete online transaction history made the guideline unfair; sentence must reflect the quantity which the prosecution proves.

4. The judge had insufficiently distinguished the organiser, Assaf, from Roden and Hyams, who were substantial but subordinate participants. Patel’s voluntary departure, shorter involvement and lower culpability also required greater effect. The court corrected Roden’s plea discount, required account to be taken of relevant delay and subsequent change, and upheld the judge’s procedure for resolving Hyams’s disputed basis of plea after giving him an opportunity to rebut evidence heard at Assaf’s Newton hearing.

5. The ketamine sentences could not stand. Ketamine was a Class C drug during the offending, the quantity was uncertain, and it could not be said to have been many times the Category 1 indicative quantity. The court substituted lower concurrent terms. Assaf’s total sentence remained 15 years 3 months, making the variation academic. Roden’s total was reduced to 9 years 4 months, Hyams’s to 9 years 9 months, and Patel’s to 8 years.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence and varied the concurrent sentences: [2019] EWCA Crim 1057.
• Crown Court at Manchester: HHJ Leeming QC sentenced the appellants on 21 March 2018 for drug-trafficking conspiracies.