Gaves, R. v

Where a prison employee supplies drugs in prison by abusing a position of trust, the applicable sentencing guideline and the need for deterrence require a severe custodial sentence. A sentencer who selects the bottom of the guideline range must not then make a substantial further reduction for mitigating features already used to select that point before applying credit for a guilty plea.

Pressure or coercion to bring drugs into prison ordinarily provides only limited mitigation for a prison officer. It may displace financial gain as an aggravating feature and bear on role, but an officer must report threats rather than yield to them. Prison conditions during the Covid-19 pandemic may be relevant, but must be reflected consistently with applicable guidance.

The Attorney General referred the offender's sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The offender, then a prison officer, pleaded guilty to possession of cocaine and cannabis with intent to supply, and attempting to convey tobacco into prison contrary to section 40 of the Prison Act 1952.

The Recorder of Winchester treated the cocaine offence as category 3A under the Definitive Guideline for Drug Offences and imposed three years' imprisonment. The central issue was whether reductions made below the guideline range, before guilty-plea credit, rendered that sentence unduly lenient.

1. The court granted leave and allowed the Attorney General's reference. The three-year sentence on count 1 was unduly lenient and was quashed. It was replaced with a sentence of four years and eight months' imprisonment.

2. The cocaine offence was correctly categorised as category 3A under the Definitive Guideline for Drug Offences. The offender had a leading role because she abused her trusted position as a prison employee, and the guideline specifically covered supply of drugs in prison by such an employee. The applicable starting point was eight years and six months, with a category range of six years and six months to ten years.

3. The Recorder had moved almost immediately to the bottom of the range and then substantially below it before allowing credit for the guilty plea. That approach effectively gave further weight to mitigating matters which had already informed placement within the range. The presence of three offences also required some increase from the starting-point calculation.

4. Good character, youth and probationary status carried limited weight in the circumstances. Any coercion was also of limited mitigating effect. The court applied the approach in R v Reynolds [2017] 1 Cr App R(S) 42: a prison officer faced with threats must report them and must not yield to them. Coercion could displace financial gain as an aggravating feature and affect role, but could not justify a greater reduction.

5. The Covid-19 situation in prisons could be considered, consistently with R v Manning [2020] EWCA Crim 592 and the relevant guidance. It could not, however, be used bluntly to drive the sentence down significantly. The deterrent purpose identified in R v McDade [2010] EWCA Crim 249, and reflected in the guideline, had to be upheld. A pre-plea figure of seven years was appropriate; one-third credit produced four years and eight months.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1728, the court granted leave on the Attorney General's reference, held the sentence unduly lenient, and substituted four years and eight months' imprisonment on count 1.
• Crown Court: On 28 August 2020, the Recorder of Winchester sentenced the offender to three years' imprisonment, with ancillary orders.
• Magistrates' Court: On 29 July 2020, the offender pleaded guilty to the three offences and was committed to the Crown Court for sentence.