Wellington, R. v

In sentencing a repeat Class A drug supplier, the drug guideline must be applied on a sliding scale, rather than as hard-edged categories. Previous closely similar offending may justify a substantial uplift even where the statutory minimum sentence is disapplied.

Mental disorder reduces culpability only where there is a sufficient connection with the offending. It may nevertheless affect the impact of custody. Blackmail sentencing is fact-specific. Material considerations include the threat, demand, victim’s anguish and distress, planning, the offender’s ability to carry out threats, and totality.

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Solicitor General challenged a total sentence of five years’ imprisonment imposed by HHJ Sampson in the Crown Court at Nottingham on 16 December 2020.

The respondent had been sentenced for a cocaine-supply conspiracy, possession of cannabis, malicious communication, criminal damage, inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, and blackmail. The reference alleged undue leniency in particular in the sentences for the drugs conspiracy and blackmail.

The central issues were the effect of mental-health evidence on culpability and sentencing, the proper sentence for repeat Class A drug supply after disapplication of the statutory minimum, and the appropriate assessment of the blackmail offence.

1. The reference was allowed. The total sentence of five years was unduly lenient. The court substituted an overall sentence of nine years’ imprisonment.

2. The sentencing judge was entitled in principle to disapply the seven-year minimum under section 110 of the Powers of Criminal Courts (Sentencing) Act 2000. However, the material did not support a finding that mental illness had played any part in the respondent’s 2016 cocaine conspiracy. The delay and late guilty plea provided little substantive mitigation. His fourth Class A supply conviction, while still serving the previous Scottish sentence, was a very serious aggravating feature. A sentence of two years for the conspiracy was therefore unduly lenient. The appropriate sentence was five years and six months.

3. The court confirmed that mental disorder reduces culpability only where it is sufficiently connected to the offending. It may still be relevant to the effect of custody. On the evidence, the respondent’s mental health background supported the agreed consecutive sentence of 18 months for the section 20 offence, but did not reduce culpability for the calculated drugs or blackmail offences.

4. The drug guideline requires a sliding-scale assessment, not rigid category boundaries. The respondent’s lesser role had features of a significant role, and his similar convictions required a substantial uplift.

5. The blackmail was planned and sophisticated, used intermediaries, involved grave threats at the victim’s parents’ home while his children were present, and caused continuing distress. After a 25% guilty-plea reduction, its standalone appropriate sentence was about three years. Applying totality, the court imposed two years consecutively. The other concurrent sentences remained undisturbed.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, held the Crown Court’s total sentence unduly lenient and substituted a total sentence of nine years’ imprisonment: [2021] EWCA Crim 294.

• Crown Court at Nottingham: HHJ Sampson imposed a total sentence of five years’ imprisonment on 16 December 2020.