REGINA v DILLAN TROY KENNEDY

At a sentencing hearing following a guilty plea, the prosecution must identify the factual basis on which sentence is sought, but need not adduce trial-quality evidence unless the defence challenges a material fact. A sentencing judge is not bound by trial admissibility rules where no Newton hearing is required. A slip-rule hearing cannot be used to reopen and expand evidential disputes that should have been raised at sentence.

For sustained street dealing, guideline quantities are indicative points on a scale, not rigid category boundaries. Category 3 is the starting point for street dealing, but greater quantities, duration, scale, number of users and other evidence may justify a higher harm category. Precise aggregate quantity need not be proved: the judge may assess it by estimation and the combined effect of the evidence.

The appellant pleaded guilty to two counts of being concerned in the supply of class A drugs and received concurrent nine-year sentences. The offending involved a drugs line operating continuously over three months, with evidence of substantial dealing and the exploitation of vulnerable individuals.

He appealed against sentence, challenging the finding that he had a leading role and the assessment that the quantity involved was 1kg. He also challenged the use of call data and other material at a subsequent hearing under the slip rule. The central issues were whether the factual basis required evidential proof, whether the sentencing judge could rely on material not admissible at trial, and how the sentencing guideline should be applied where the precise quantity supplied was uncertain.

Appeal dismissed. The nine-year concurrent sentences were not excessive.

1. Slip-rule hearing and factual basis. The appellant had not challenged the prosecution’s assertion of approximately 17,000 calls at the original sentencing hearing, sought an adjournment to obtain the underlying material, or required a Newton hearing. He was therefore not entitled to challenge the volume of calls at the later hearing. He remained entitled to argue that the volume did not support an inference of 1kg, but the second hearing could not be used to develop extensive evidential arguments under the guise of correcting a factual error.
2. Evidence at sentence. The prosecution must identify the factual basis on which sentence is sought, but is not obliged at the sentencing hearing to adduce evidence supporting every assertion. If the defence challenges a material factual basis, the issue must be resolved and may require a Newton hearing. In the absence of such a challenge, the sentencing judge is not bound by trial rules of admissibility. The court applied R v Smith [1988] 10 Cr App Rep (S) 271. The judge was entitled to rely on the detailed statement analysing the phone data, notwithstanding that the civilian analyst’s underlying report had not been disclosed.
3. Sentencing guideline. The 2012 guideline treated indicative quantities as points on a scale, not as rigid quantity ranges or automatic category boundaries. Category 3 was the starting point for street dealing because the harm exceeded that caused by the quantity alone. Where quantities exceeded the small quantities inherent in street dealing, the court had to consider the actual quantities, using the indicative quantities as guidance. The court applied the approach explained in R v Khan [2013] EWCA Crim 800; [2014] 1 Cr App R (S) 10.
4. Assessment of quantity, harm and role. In a prolonged multiple-supply case, precise quantification was unnecessary. The court could estimate scale and harm from the totality of the evidence, including duration, deal sizes, call volume and frequency, cash, communications and the number of users. The appellant’s control of a substantial drugs line, the scale and duration of the operation, use of others and expectation of substantial financial gain justified a leading-role categorisation.
5. The sustained supply of class A drugs, weapons, previous convictions and exploitation of vulnerable persons justified a sentence after trial of 12 years. Applying the 25 per cent guilty-plea reduction, the sentence of nine years could not properly be criticised. The appeal was dismissed.

1. Court of Appeal (Criminal Division): The appeal against sentence was dismissed: [2021] EWCA Crim 1921.
2. Sentencing decision: Following guilty pleas, the appellant was sentenced to concurrent terms of nine years’ imprisonment on 9 November 2020.
3. Slip-rule hearing: On 23 December 2020, the sentence was confirmed at a further hearing described as being under the statutory slip rule.