Prosser, R v

Where a conviction following a guilty plea is unsafe because the substantive offence was not committed, the Court of Appeal may substitute a guilty plea to an alternative offence under Criminal Appeal Act 1968, section 3A, if the statutory conditions are met and the original plea admits facts proving that alternative.

A substituted sentence must be authorised for the alternative offence and must not be more severe. Although an attempt will generally attract a lower sentence than the completed offence, the sentence must reflect the offender’s actual culpability and role.

The appellant pleaded guilty in the Crown Court at Northampton to possessing diamorphine with intent to supply and received three years’ imprisonment. A consecutive suspended sentence was activated.

Forensic analysis obtained after sentence established that the 25 wraps carried by the appellant contained paracetamol and caffeine, rather than heroin. The Crown accepted that the substantive conviction was unsafe but submitted that a plea to attempting to possess diamorphine with intent to supply should be substituted.

The appeal concerned the Court of Appeal’s power to make that substitution and the appropriate sentence for the attempt.

1. Extension of time and leave to appeal were granted. The conviction for possessing diamorphine with intent to supply was unsafe and could not stand because the substance was not heroin.
2. Section 3A of the Criminal Appeal Act 1968 applied. The appellant had pleaded guilty; he could have been convicted on the indictment of the statutory alternative of attempt; and his plea admitted facts proving an attempt. The court therefore exercised its discretion to substitute a guilty plea to attempting to possess diamorphine with intent to supply, contrary to section 1(1) of the Criminal Attempts Act 1981, rather than allow or dismiss the appeal.
3. The substituted sentence had to be authorised for the attempt and could not be more severe than the original sentence. An attempt will generally receive a lower sentence than the completed offence. Here, however, the appellant’s culpability in unwittingly handling fake drugs was no different in kind from his culpability had the drugs been genuine.
4. The sentencing judge had placed the appellant between a lesser and significant role because he appeared to have been trusted with real drugs. The fresh evidence showed that, as an unwitting runner, he could not have known of the deception higher in the drugs operation. His role should therefore be assessed at the category 3 lesser-role starting point of three years after trial.
5. Allowing 25 per cent credit for the guilty plea, the substituted sentence was 27 months’ imprisonment. The other sentences remained unchanged, including the consecutive 12-month activated suspended sentence. The total sentence became three years and three months.

• Court of Appeal (Criminal Division): in [2019] EWCA Crim 836, the court granted an extension of time and leave to appeal. It substituted a guilty plea to attempted possession of diamorphine with intent to supply and imposed 27 months’ imprisonment.
• Crown Court at Northampton: on 13 June 2018, the appellant pleaded guilty to possession of diamorphine with intent to supply. He received three years’ imprisonment; a 12-month suspended sentence was activated consecutively.