R v Jodie Marie Smith & Anor

When sentencing defendants at different levels of seniority in a joint criminal enterprise, the sentencing judge must allocate each offender an evidentially justified role and apply the Sentencing Guideline proportionately.

A defendant who pleads guilty only to the final contested charge during trial may properly receive no discount for delay where the need for trial caused significant delay. Earlier pleas may justify different treatment. Personal mitigation must be considered, but the judge may give it less weight than the offender seeks. An offender may properly fall at the crossover between significant and lesser role where the scale of the offending and the offender’s culpability justify that assessment.

Eleven defendants were sentenced at Teesside Crown Court on 14 October 2022 for offences arising from high-level conspiracies to supply cocaine and amphetamine, together with related offences.

Jodie Marie Smith, the partner of the principal offender, received six years and six months’ imprisonment for conspiracy to supply cocaine, with a concurrent sentence for the amphetamine conspiracy. Jonathan Kitson, the principal offender’s half-brother, received consecutive and concurrent sentences totalling sentences of nine years and two months, nine months, and six years and two months for his offences.

Both defendants renewed applications for leave to appeal against sentence after leave had been refused by a single judge. They argued that their roles had been overstated, that the Sentencing Guideline and personal mitigation had been inadequately considered, and that insufficient credit had been given for delay. The central issue was whether the sentencing judge had made any properly arguable error.

The renewed applications for leave to appeal against sentence were refused.

1. Sentencing several defendants at different levels of seniority in a joint criminal enterprise requires care in allocating each offender an evidentially justified role. The individual sentences had to be considered against the full framework applied by the trial judge.

2. In Kitson’s case, the judge was entitled to find that he had a significant role under the Sentencing Guideline. He had been involved from the outset, had made numerous journeys, understood the scale of the operation, and had been entrusted with very large quantities of money. The judge’s application of the Guideline was conventional.

3. The judge was entitled to refuse Kitson a discount for delay. He pleaded guilty to the final contested charge during the trial, and the need for trial caused significant delay affecting him and the other defendants. Defendants who had pleaded guilty to all matters earlier were in a materially different position.

4. In Smith’s case, the judge was entitled to place her at the crossover between significant and lesser role. A starting point of nine years properly reflected the quantity and value of the drugs and her substantial culpability in operating the enterprise during the principal offender’s absence, despite her lack of practical involvement in moving the drugs.

5. The judge had considered personal mitigation, including the imbalance between the defendants’ personalities and strengths of character, Smith’s good character and background, and the available discounts. The judge was entitled to attach less weight to mitigation than the applicants sought. Kitson had declined the opportunity to give evidence about his involvement and could not introduce that explanation for the first time on appeal.

No properly arguable challenge to either sentence was identified.

1. Court of Appeal (Criminal Division): On 5 May 2023, the court refused the renewed applications for leave to appeal against sentence: [2023] EWCA Crim 1397.

2. Single judge: Refused leave to appeal against sentence.

3. Teesside Crown Court: On 14 October 2022, sentenced the defendants for offences arising from the cocaine and amphetamine conspiracies and related offending.