Mythen, R v

Where a drug-importation sentencing guideline fixes a starting point and range for an offence category, a quantity above that used for the starting point does not justify a mechanical arithmetic uplift beyond the stated range. The court must instead balance all relevant factors within the applicable category.

Unsubstantiated assertions of coercion, intimidation or exploitation falling short of duress cannot reduce sentence where the offender declines the opportunity to give evidence. Remote and dissimilar convictions may properly carry no aggravating weight.

The appellant pleaded guilty in the Magistrates’ Court to importing class A drugs and was committed to the Crown Court at Isleworth for sentence. He had arrived from Paris with four suitcases whose linings contained 7.21 kilograms of cocaine at 62 per cent purity.

The Crown Court treated the offence as a significant role in a Category 1 importation. Starting with 10 years’ imprisonment, it increased the sentence to 15 years after trial because the quantity exceeded five kilograms, and imposed 10 years after full credit for the guilty plea. It also made a two-year Travel Restriction Order after release.

The appeal challenged the quantitative uplift, the treatment of asserted pressure falling short of duress, and the proportionality of the travel restriction.

1. Appeal allowed in part. The court quashed the sentence of 10 years’ imprisonment and substituted a sentence of eight years. It upheld the two-year Travel Restriction Order.

2. The appellant’s offence was correctly assessed as a significant role in a Category 1 cocaine importation. The applicable starting point was 10 years’ imprisonment, with a range of nine to 12 years, based on an importation of five kilograms.

3. The sentencing judge adopted an incorrect approach by increasing the starting point arithmetically to 15 years because the quantity was 7.21 kilograms. That approach would generate excessive sentences as quantities increased. It would also make the offending more serious than a leading role in the same Category 1 offence, for which the guideline starting point was 14 years. The additional quantity was relevant, but the relevant factors justified a starting point within, and not above, the nine-to-12-year range.

4. At the next stage, the appellant’s previous convictions did not increase seriousness. They were remote and largely dissimilar. The asserted coercion, intimidation or exploitation short of duress was potentially mitigating, but the appellant declined to give evidence when offered the opportunity. The sentencing judge had therefore received no evidence capable of establishing that mitigation.

5. Giving full credit for the guilty plea, the appropriate sentence was eight years’ imprisonment. There was no error in making the Travel Restriction Order.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in part. The court quashed the 10-year custodial sentence and substituted eight years, while upholding the two-year Travel Restriction Order.

• Crown Court at Isleworth: On 16 May 2019, imposed 10 years’ imprisonment for importing class A drugs after allowing full credit for a guilty plea, and made a two-year Travel Restriction Order.

• Magistrates’ Court: On 16 April 2019, the appellant pleaded guilty and was committed to the Crown Court for sentence.