Christopher Kirkby v R

In sentencing for multiple substantial conspiracies, a judge may use either an uplift to a lead offence or consecutive sentences. The structure must reflect the whole criminality and remain just and proportionate. A sentence above a guideline category range may be justified by exceptionally large quantities, a leading role, previous similar offending, offending on bail, recruitment of others and deliberate concealment. Totality requires consideration of the overall sentence, including a sentence already served for related offending. Differences between co-defendants in role, criminal record and mitigation may justify substantial disparity. An appeal will succeed only where the sentence is unjust, disproportionate or manifestly excessive.

The appellant pleaded guilty to two conspiracies to supply alprazolam and to converting criminal property. Following a four-day Newton hearing, the Crown Court at Portsmouth sentenced him to a total of nine years and six months’ imprisonment, comprising consecutive terms for the two conspiracies and a concurrent term for converting criminal property.

He appealed against sentence by leave of the single judge. The grounds concerned disparity with two co-defendants and the application of totality, including the relationship between the sentence and an earlier sentence for a separate steroid conspiracy.

The appeal against sentence was dismissed.

1. The sentencing judge was entitled to structure the sentence for the two substantial conspiracies either by treating one as the lead offence and increasing the sentence to reflect the second conspiracy, or by imposing consecutive sentences. Whichever structure was chosen, the sentence had to reflect the whole criminality and remain just and proportionate.
2. The very large quantity of alprazolam was a serious aggravating factor. The appellant displayed five of the six characteristics identified in the leading-role criteria: he directed and organised commercial drug dealing, expected substantial financial advantage, exercised substantial influence over the supply chain, had close links to the original manufacturer and used his business as a cover. His previous similar offending, offending while on bail, recruitment of others and deliberate attempt to conceal evidence justified a significant movement above the guideline range.
3. The judge had properly considered totality. He took account of the sentence already served for the steroid conspiracy and sought to avoid an excessive overall sentence. The 10% guilty-plea reduction was generous given the late pleas, and the resulting sentences were at or slightly below the starting point for a single offence.
4. The disparity argument failed. The co-defendants differed materially in role, criminal record, mitigation and assistance to the police. The judge was entitled to regard the appellant as the prime mover and driving force. The sentence reflected the whole criminality and was neither unjust nor disproportionate, and was not manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence.
• Crown Court at Portsmouth: following a Newton hearing, imposed a total sentence of nine years and six months’ imprisonment.