Rowlands, R v

For an offence under section 46 of the Serious Crime Act 2007, liability may arise where an accused believes that one or more specified offences will be committed and that his act will assist them, even though he has no belief as to which offence will be assisted. Where the reference offences include supply of both class A and class B controlled drugs, the absence of a belief as to the particular class does not equate to a belief that only class B drugs will be supplied.

The sentencing court may take account of the guidelines for both classes, while calibrating sentence to reflect the lesser culpability of an offender who did not believe that all the material would be used for class A supply. Comparable sentences must be assessed in their particular factual and mitigating context.

The appellant pleaded guilty at the earliest opportunity to two offences contrary to section 46 of the Serious Crime Act 2007. He had sourced and supplied, or was supplying, 22 kilograms of benzocaine, knowing that drug dealers used it to dilute controlled drugs. He believed that his conduct would assist the supply of class A or class B drugs, but had no belief as to the particular class involved in any supply.

At Cardiff Crown Court, he received concurrent sentences of three years four months’ imprisonment, based on a notional total of five years before credit for his guilty pleas. He appealed on the grounds that the judge should not have considered the class A drug-supply guideline and that the sentence was excessive. The central issue was the proper sentencing approach where the section 46 reference offences encompass both class A and class B drug supply.

1. Appeal dismissed. The concurrent sentences of three years four months’ imprisonment were not manifestly excessive.

2. Section 46 of the Serious Crime Act 2007 criminalised the appellant’s conduct. He supplied benzocaine in the belief that it would assist one or more offences involving the supply of controlled drugs. It was immaterial that he had no belief as to which particular offence, or which class of controlled drug, would be involved.

3. Under section 58, where a section 46 offence refers to more than one reference offence, the maximum available penalty is that applicable to the most serious reference offence. The appellant’s absence of a belief that a particular supply would involve class A drugs did not amount to a belief that only class B drugs would be supplied.

4. The sentencing judge was therefore entitled to consider the guidelines for supply of both class A and class B drugs. She correctly allowed for the appellant’s lower culpability compared with an offender who believed that all the benzocaine would be used in class A supply. The scale of the supply, capable of facilitating substantial quantities of controlled drugs, justified the judge’s assessment of harm and significant role.

5. The court recognised the appellant’s effective good character, remorse, naivety and co-operation. Those matters had been fully reflected in the sentence. Sentences in fact-specific comparator cases did not show excess, particularly where the other offender had substantially different personal mitigation and caring responsibilities.

• Court of Appeal (Criminal Division) — Sentence appeal dismissed; the concurrent sentences of three years four months’ imprisonment were upheld: [2019] EWCA Crim 1464.
• Crown Court at Cardiff — On 26 April 2019, the appellant was sentenced to concurrent terms of three years four months’ imprisonment for two offences contrary to section 46 of the Serious Crime Act 2007.