White v Crown Prosecution Service

In an appeal against sentence for repeated low-level Class A drug supply, the court should identify the guideline category and role, adjust for the number of offences and the offender’s record, and then give proper effect to substantial personal mitigation. Pressure from another offender may be reflected in the lesser-role assessment and should not be counted twice. A pre-sentence report should be obtained where it would materially assist an individual assessment of rehabilitation, particularly where there is evidence of exceptional progress in custody. Current custody conditions may be considered where relevant. Parity does not require equal sentences where offenders are responsible for different numbers or seriousness of offences. Unproved allegations of threats or assault cannot be used in mitigation without an evidential basis.

The appellant pleaded guilty in the Crown Court at Inner London to five offences of supplying a Class A controlled drug, contrary to Misuse of Drugs Act 1971, s.4(3)(a). She received concurrent sentences of 30 months’ imprisonment. Her appeal challenged the sentencing starting point, the failure to obtain a pre-sentence report, the treatment of alleged threats and assault relied upon in mitigation, and disparity with co-defendants’ sentences. The central questions were whether the sentencing exercise properly reflected her lesser role and substantial mitigation, and whether the sentence was manifestly excessive.

Appeal allowed in part. The concurrent sentences were reduced from 30 months to 18 months on each count.

1. Role and guideline starting point. The offending was at the lowest level of supply. The appellant was at the bottom of the supply chain and acted under the direction, and to some degree under the pressure, of another offender. Her personal advantage was limited to obtaining drugs for her own use. Applying the guideline for a category 3 offence involving a lesser role, the appropriate starting point was three years. The original approach, which placed the offending on the cusp between significant and lesser role and produced a starting point of about 40 months, was too high.
2. Sentencing adjustments. The starting point required an upward adjustment for the appellant’s previous record and the number of offences. The pressure from the co-accused was already reflected in the lesser-role assessment. A substantial downward adjustment was then required for the strong personal mitigation, exceptional progress in custody and realistic prospects of rehabilitation. The court also took account of the restrictive custody conditions, following R v Manning [2020] EWCA Crim 592. The resulting figure was two years before the 25 per cent guilty-plea reduction, producing 18 months.
3. Pre-sentence report. A report should have been ordered. Although the appellate court had the benefit of hindsight, a report would have assisted the sentencing judge in making an individual assessment of the appellant’s rehabilitation and personal circumstances.
4. Unproved mitigation. The judge was entitled to refuse to find that the appellant had been assaulted or threatened into offending. The prosecution did not accept those facts, and the appellant declined to give evidence at a Newton hearing. There was no evidential basis for going further, although the judge could accept the lesser position in the supply hierarchy where that was supported by the evidence.
5. Parity and totality. The disparity argument failed because the appellant had been sentenced for more offences than co-defendants at a similar level. The sentence could properly be adjusted upwards to reflect the totality of her offending. A suspended sentence was rejected because it would not provide adequate supervision and support.

The sentences were reduced to 18 months’ imprisonment on each count, concurrent, with licence conditions addressing supervision, accommodation, drug treatment and contact with co-defendants.

• Crown Court at Inner London: The appellant pleaded guilty and was sentenced on 29 September 2020 to concurrent terms of 30 months’ imprisonment.
• Court of Appeal (Criminal Division): The appeal was allowed in part. The sentences were reduced to concurrent terms of 18 months’ imprisonment.