Foster & Ors v R

In sentencing a group drug-supply operation, the category must rest on the quantity safely established by the evidence. A court may infer that an observed operation began before the surveillance period, but it should not extrapolate its scale over a substantially longer period on a slender evidential basis.

Sentence must reflect both the proven scale of the enterprise and each offender’s individual role. Where the evidence establishes organised large-scale Class A drug dealing, but not the quantity required for the highest category, sentences should be reassessed on the basis of the category properly supported by the evidence.

The appellants were convicted at Portsmouth Crown Court of being concerned in the supply of cocaine and heroin. Hallett was also convicted of possessing both drugs with intent to supply. The trial judge treated the operation as a Category 1 enterprise and imposed concurrent sentences of 14 years on Hallett, 10 years on Sheehan and seven years on Foster.

Foster and Sheehan appealed against sentence. Hallett renewed his application for permission to appeal. The central issue was whether the evidence justified treating the operation as involving five kilograms of Class A drugs, and therefore as Category 1, and what sentences properly reflected the appellants’ respective roles.

1. The appeals were allowed. Hallett’s renewed application for permission to appeal was granted. The court substituted concurrent sentences of 12 years’ imprisonment for Hallett, nine years’ imprisonment for Sheehan, and six years’ imprisonment for Foster.

2. The trial judge was entitled to aggregate the drugs found at the relevant premises and to conclude that more than one kilogram of Class A drugs had been traded or stored by 1 April 2016. The evidence also showed an organised operation involving six people, rather than simple street dealing.

3. However, the hard evidence of telephone activity and surveillance was concentrated between mid-February and early April 2016. Although an inference could properly be drawn that the operation pre-dated the observation period, the evidence did not safely justify extrapolating the enterprise back to about October 2015. It therefore did not establish with sufficient certainty that five kilograms had been traded.

4. The operation was properly placed between Category 2 and Category 1. Its volume was at least about one kilogram per month from the beginning of 2016, producing an estimated total of between three and four kilograms over more than three months.

5. Hallett remained the prime mover and held a leading role. Sheehan held a significant role: the court rejected his account that he was merely a driver or associated with drug dealers in order to rob them. Foster’s telephone activity showed closer involvement than merely allowing his premises to be used, although his role remained less than that of the leading participants. The revised category required corresponding reductions in sentence.

• Court of Appeal (Criminal Division). The appellants’ sentence appeals were allowed. Hallett’s application for permission to appeal was granted, and the sentences were reduced.
• Portsmouth Crown Court. Following jury convictions for Class A drug-supply offences, Hallett received 14 years’ imprisonment, Sheehan 10 years’ imprisonment and Foster seven years’ imprisonment.