The Attorney General v Peck

On an Attorney General’s reference, a sentence may be increased only if it is unduly lenient, not simply because the appellate court would have imposed a heavier sentence. A prolonged Class A drug-supply enterprise operated by the offender for profit may amount to a significant role even if it is low-grade. The principal supply count should reflect the total criminality, with related importation and duration treated as aggravating factors. A drug rehabilitation requirement cannot reduce a necessary custodial term where rehabilitation is not required. Strong personal mitigation may reduce sentence, but prolonged Class A drug importation and dealing will almost always require immediate imprisonment.

Daniel Peck, aged 22 and previously of good character, pleaded guilty in the Crown Court at Truro to importing MDMA, possessing MDMA with intent to supply, simple possession of 2C-B and ketamine, and being concerned in the supply of MDMA over more than a year. He had imported 201 MDMA tablets and used his telephone to arrange street-level supplies to known recreational drug users.

On 8 November 2019, HHJ Linford imposed concurrent sentences of 24 months’ imprisonment, suspended for 24 months, with unpaid work and a curfew. The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the judge had properly assessed the offender’s role, aggravating features, mitigation, guilty-plea credit and the availability of suspension.

1. The Attorney General’s reference was allowed. The court granted leave in respect of counts 1, 2 and 5, quashed the concurrent suspended sentences of two years’ imprisonment, and substituted concurrent sentences of two years and nine months’ immediate imprisonment.
2. The court applied the established approach in Attorney General’s Reference (No 4 of 1989) (1989) (11) Cr. App R (S) 517. A reference does not permit an increase merely because the appellate court would itself have sentenced more severely. This sentence was nevertheless unduly lenient because the judge materially understated culpability and gave excessive effect to mitigation.
3. Count 5, the continuing supply offence, was the principal offence. It was proper to reflect the whole criminality in that count, to treat the importation as an aggravating feature, and to impose concurrent sentences. Although the operation was low-grade, the offender ran his own business for money over more than a year. His role was significant, not lesser. The starting point was four years and six months’ imprisonment, with the duration and importation aggravating the offence.
4. The court rejected alleged sophistication, recruitment of others into dealing, and community impact as aggravating factors. It accepted substantial mitigation, including good character, age, immaturity, remorse, co-operation at the search, delay, employment and positive progress. Balancing those matters, the appropriate pre-plea sentence was four years’ imprisonment.
5. The guideline passage concerning a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 did not justify reducing the custodial term. The offender was a recreational drug user, rehabilitation was unnecessary, and the judge had correctly concluded that custody was required. A conventional 25% guilty-plea reduction, rather than one third, was appropriate because pleas were not offered until after significant negotiations. Credit for completed unpaid work and the onerous curfew reduced the term to two years and nine months.
6. A sentence exceeding two years could not be suspended. Despite the powerful evidence of rehabilitation and likely difficulty in prison, prolonged importation and dealing in Class A drugs made immediate custody almost inevitable.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, granted leave, held the sentences unduly lenient, and substituted immediate concurrent terms of two years and nine months’ imprisonment: [2020] EWCA Crim 147.
• Crown Court at Truro: On 8 November 2019, HHJ Linford imposed concurrent sentences of 24 months’ imprisonment, suspended for 24 months, with unpaid work and a curfew.