Rex v Sam Whicker

Where the quantity of drugs significantly exceeds the indicative quantity in the Definitive Guideline for Drug Offences, the excess must exert substantial upward pressure on the starting point. Quantity affects harm independently of the offender’s knowledge, which bears on culpability and role. A courier may fall between lesser and significant role categories where the quantity entrusted indicates significant financial advantage and awareness of the operation, despite limited function and no influence in the chain. Comparisons with co-offenders must reflect differences in the offence proved, role, coercion and quantity. A starting point that ignores those distinctions may produce an unduly lenient sentence.

The offender pleaded guilty at the first opportunity to being concerned in the supply of Class A cocaine and was sentenced by the Crown Court at Southwark to four years’ imprisonment. The offence involved his transporting 90 kg of cocaine in a single transaction within a wider conspiracy involving over 200 kg.

The Attorney General referred the sentence as unduly lenient. The central issues were the proper assessment of the offender’s role and harm under the Definitive Guideline for Drug Offences, the effect of the quantity transported, and whether sentences imposed on other participants provided appropriate comparators.

Disposition

The court gave leave for the Attorney General’s reference under section 36 of the Criminal Justice Act 1988. The sentence of four years was unduly lenient. It was quashed and replaced with five years and four months’ imprisonment.

Sentencing approach

1. The guideline treated 5 kg of cocaine as the indicative quantity for category 1 harm. A lesser role attracted a seven-year starting point, while a significant role attracted a ten-year starting point. Quantities substantially exceeding the indicative amount exert upward pressure on the starting point. The 90 kg transported here was 18 times the indicative quantity. Purity might also have been relevant to harm, but it was left out of account because it had not been raised as an aggravating feature below.
2. The offender knew, at least in general terms, that the four holdalls contained an enormous quantity of drugs. The quantity supported an inference of expected significant financial advantage and awareness of the scale of the operation. The factors indicating a lesser role were limited to performing a function under direction and having no influence over those above him. His culpability therefore straddled the lesser and significant categories. The quantity affected harm regardless of his knowledge; knowledge affected culpability.
3. The judge’s reliance on the three courier comparators was materially flawed. One comparator had been coerced and involved only 7 kg. Another had received a nine-year starting point where factors pointed towards both lesser and significant roles. The third had received an eight-year starting point despite lesser involvement and no association with such quantities. Further, those offenders had been sentenced for conspiracy involvement without findings demonstrating awareness of the overall scale, whereas this offender was directly involved in a single transaction involving 90 kg.
4. A seven-year starting point could not be justified. The mixed role indicators required a starting point above the lesser-role starting point, and the enormous quantity required a further uplift. A notional starting point below nine years was outside reasonable leniency. After one year for mitigation and a one-third reduction for the guilty plea, the least reasonable sentence was five years and four months.

• Court of Appeal (Criminal Division), [2022] EWCA Crim 1330: granted leave under section 36 of the Criminal Justice Act 1988, found the sentence unduly lenient, quashed it and substituted five years and four months’ imprisonment.
• Crown Court at Southwark: sentenced the offender on 6 July 2022 to four years’ imprisonment for being concerned in the supply of Class A cocaine.