R v Harry McCusker

A reference under section 36 of the Criminal Justice Act 1988 succeeds only where the sentence is not merely lenient but unduly lenient. In sentencing a serious drugs conspiracy, the court must not mechanically apply a guideline starting point based on drug weight for a single substantive offence. It must assess the offender’s role, the scale and duration of the conspiracy, the quantities known to the offender, totality, and deterrence. A substantially higher starting point may be necessary where a nominally lesser-role offender operated at the upper end of that role in a very large-scale conspiracy and also participated in serious money-conversion offending.

The Solicitor General sought leave to refer, as unduly lenient, the sentence imposed on Harry McCusker by the Crown Court at Lewes on 28 October 2022.

McCusker had pleaded guilty to conspiracy to supply cocaine and conspiracy to convert criminal property. He acted as a custodian and courier in a sophisticated, large-scale drugs operation. Although the sentencing judge treated him as having a lesser role in category 1 offending, the offending included features of significant role, substantial quantities of cocaine, and a connected conspiracy involving large sums of criminal cash.

The judge imposed four years and nine months’ imprisonment for the drugs conspiracy, with a concurrent three-year sentence for the conversion conspiracy. The central issue was whether that overall approach produced an unduly lenient sentence.

1. The court granted leave and allowed the Solicitor General’s reference. Under section 36 of the Criminal Justice Act 1988, appellate intervention is reserved for a sentence that is unduly, rather than simply, lenient. The threshold is high because the jurisdiction addresses gross sentencing error, public concern, and public confidence.

2. The offences were conspiracies, not isolated substantive drugs offences. The sentencing guideline’s drug-weight starting points therefore required careful, rather than mechanical, use. In serious commercial drug offending, deterrence is an important sentencing consideration.

3. The seven-year starting point for category 1 lesser-role cocaine offending was based on a single offence involving five kilograms. It did not adequately reflect this offender’s conduct. He was at the upper end of lesser role, had some awareness of the operation’s scale and expected substantial financial gain. He had custody of 20 kilograms of cocaine, took part in its distribution and collection of payments, and was involved in a further serious conspiracy to convert large sums of criminal property. The sentence also had to reflect the totality of both conspiracies.

4. A pre-mitigation term of at least nine years was necessary. Allowing about one year for mitigation and then 20% credit for the guilty plea produced a sentence of six years and four months. The original term of four years and nine months was unduly lenient.

5. The court quashed the sentence on count 1 and substituted six years and four months’ imprisonment. The concurrent three-year sentence on count 2 remained undisturbed. The offender was to serve half of the substituted term in custody before release on licence.

• Court of Appeal (Criminal Division): The Solicitor General’s reference under section 36 of the Criminal Justice Act 1988 was allowed. The sentence for the cocaine conspiracy was quashed and replaced with six years and four months’ imprisonment.

• Crown Court at Lewes: On 28 October 2022, the offender received four years and nine months’ imprisonment for conspiracy to supply cocaine, with a concurrent three-year term for conspiracy to convert criminal property.