R v Robert Alan McNichol

The Sentencing Council guideline for supply applies to conspiracies. Where the quantity significantly exceeds category 1, sentencing must be fact-specific rather than formulaic. The judge must assess quantity, duration, the offender’s role in the chain, aggravating and mitigating features, and totality. Separate offences may justify an increase to the lead sentence, while offences subsumed within the conspiracy require no separate penalty. On the facts, a sentence of 20 years after trial was manifestly excessive. The appropriate total sentence, allowing for the guilty plea and separate offending, was 14 years.

After pleading guilty to conspiracy to supply cocaine, possession with intent to supply, acquiring criminal property and breaching a Serious Crime Prevention Order, the appellant was sentenced by the Crown Court at Carlisle on 11 November 2022. The conspiracy attracted 16 and a half years’ imprisonment, with a concurrent 12-month sentence for the order breach.

He appealed on the ground that the overall sentence was manifestly excessive. The central issue was whether the sentencing judge had adopted too high a starting point or given excessive weight to the aggravating features.

The appeal was allowed to the extent that the sentence for the conspiracy was quashed and replaced. The remaining sentencing decisions were left undisturbed.

1. The supply guideline applies to conspiracies. Although it permits sentences above the guideline range for the most serious commercial operations involving quantities significantly above category 1, the assessment depends on the offender’s role and the particular facts.
2. For conspiracies involving significantly more than 5 kilograms of cocaine, there is no formulaic method of calculating the uplift. The sentencing judge must form a judgment on the facts. The court applied the approach discussed in R v Greenfield [2020] EWCA Crim 265; [2020] 2 Cr App R (S) 19.
3. The appellant’s leading role, the quantity and duration of the conspiracy, and the aggravating features justified a substantial increase from the category starting point. However, this was a single conspiracy, involving an inferred quantity of approximately 7 to 11 kilograms, and the appellant operated within a wider chain. A sentence after trial above the category maximum of 16 years was therefore not justified.
4. The unchallenged 17.5 per cent reduction for the guilty plea produced a figure of 13 years and two months. The possession offence was subsumed within the conspiracy. The other two offences were separate, and totality justified an additional ten months, producing a total sentence of 14 years.

The sentence on Count 1 was accordingly quashed and a sentence of 14 years’ imprisonment substituted.

1. Court of Appeal (Criminal Division): On 29 March 2023, the court allowed the appeal to the extent of quashing the sentence for the conspiracy and substituting 14 years’ imprisonment: [2023] EWCA Crim 420.
2. Crown Court at Carlisle: On 11 November 2022, the appellant was sentenced to 16 and a half years for conspiracy to supply cocaine, with a concurrent 12-month sentence for breaching a Serious Crime Prevention Order.