R v Ewyn Sain Denecker

On a reference under section 36 of the Criminal Justice Act 1988, the Court held that sentencing for conspiracy to supply class A drugs must reflect the scale, duration and intended continuation of the conspiracy. A guideline indication concerning direct supply to users does not justify treating a sustained drug line as an ordinary street-dealing case or prevent placement in a higher category where the threshold is met. The sentencing judge must determine the proper basis of sentence. An agreement between counsel may be considered but does not bind the judge. Fairness can be protected by an adjournment where further evidence is sought. The category 3 sentences were unduly lenient and were replaced with longer concurrent sentences.

Denecker and Sala pleaded guilty at Portsmouth Crown Court to conspiring to supply crack cocaine and diamorphine. The sentencing judge proceeded on the advocates’ agreed basis that the offending fell within category 3 of the drug-supply guideline. Denecker received three years’ imprisonment and Sala three years six months.

The Solicitor General referred the sentences as allegedly unduly lenient. The central issues were whether the prosecution could depart from its concession below without unfairness, whether the conspiracies should have been placed in a higher guideline category, and how the offenders’ respective roles should be assessed.

Leave to refer was granted. The sentences were quashed as unduly lenient. Concurrent substitute sentences of six years’ imprisonment for Denecker and eight years’ imprisonment for Sala were imposed.

1. Basis of sentence. The sentencing judge must determine the proper basis of sentence. An agreement between counsel may be taken into account, but it does not bind the judge. Defendants cannot dictate the terms on which they will be sentenced. If further expert evidence or a formal basis of plea is sought, fairness can be addressed by an application to adjourn.
2. Conspiracy and guideline categorisation. The guideline must be applied to the conspiracy as a whole. The court must consider its scale, duration and intended continuation. The indication that offences involving supply directly to users should be treated as at least category 3 does not prevent a higher category where the relevant threshold is met. A sustained drug line must not be equated with a conventional street dealer. This approach was supported by R v Kavanagh [2021] EWCA Crim. 1584, R v Akrofi-Daniels [2022] EWCA Crim. 589 and R v Khan and others [2013] EWCA Crim. 800.
3. Fairness on the reference. There was no unfairness in departing from the erroneous concession. The prosecution case had consistently alleged substantial quantities and greater culpability for Sala. The defence had been able to make detailed submissions and could have sought an adjournment to obtain evidence or formulate its case.
4. Application. Being as favourable as possible to the offenders, the quantity involved placed the offending at the overlap between categories 1 and 2. The category 3 sentences were therefore unduly lenient. The court retained the first-instance assessments of role and personal mitigation, calculated the sentences before plea credit at ten years for Sala and seven years six months for Denecker, and applied the same 20 per cent reduction for guilty pleas.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, leave was granted. The sentences were quashed as unduly lenient and concurrent substitute sentences of six years for Denecker and eight years for Sala were imposed.
• Crown Court at Portsmouth: Following guilty pleas, the judge sentenced Denecker to three years’ imprisonment and Sala to three years six months, proceeding on the agreed category 3 basis.