R v Matthew Clarke

In sentencing a conspiracy to supply controlled drugs, the definitive guideline applies but does not impose a rigid formula. The court must assess culpability, actual role and harm indicated by drug quantity, allowing for a smaller or subordinate part in the conspiracy. Starting points may be adjusted down for lesser-role features and up for substantially greater quantities. The sentence must then be assessed by standing back and considering the period and nature of involvement, relevant aggravating features, mitigation and plea credit. An encrypted device is relevant but not independently determinative. A sentence may be merciful without being unduly lenient.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer a sentence considered unduly lenient. Matthew Clarke had pleaded guilty to conspiracy to supply cocaine and conspiracy to conceal, convert, disguise or transfer criminal property. The Crown Court at Manchester imposed nine years’ imprisonment, with a concurrent two-year sentence for the proceeds of crime offence.

The Attorney General relied on the quantity of cocaine, the use of an EncroChat device and sentences in comparable cases. The respondent relied on the findings that he had a lesser role, acted under direction and did not profit from the drugs. The central issue was whether the sentencing judge had adequately reflected the quantity, duration and actual role in the conspiracy.

The court granted leave to consider the sentence but dismissed the reference. Although it described the sentence as merciful, it held that it was not unduly lenient.

1. The definitive guideline assesses seriousness by reference to culpability and role, and harm by reference to the amount of drugs. For Category 1 offences, the starting points were 14 years for a leading role, 10 years for a significant role and seven years for a lesser role, with corresponding category ranges.
2. For conspiracy offences, the guideline remains applicable but is guidance rather than a rigid framework. In R v Khan [2013] EWCA Crim 800, the court had emphasised common sense and flexibility. The categories were not a straitjacket, as recognised in Attorney General’s Reference Nos 15, 16 and 17 of 2012 [2013] 1 Cr.App.R (S) 52. Conspiracy may increase seriousness, but the sentence must carefully reflect the offender’s actual role and any identifiably smaller part in the conspiracy.
3. The sentencing judge was entitled to start at nine years, below the significant-role starting point, because Clarke acted under direction, lacked control over those above him, did not own the drugs and did not profit from onward supply. The judge then made a significant uplift to reflect the much larger quantity, before allowing for personal mitigation and guilty plea credit. The use of the EncroChat device and Clarke’s actual courier role had been fully reflected.
4. Having stood back and considered the amount of drugs, the actual role and the period of the conspiracy, the court found no undue lenience. The reference was dismissed, leaving the concurrent two-year sentence on the proceeds of crime count undisturbed.

1. Court of Appeal (Criminal Division): On 18 July 2023, the court granted leave under section 36 of the Criminal Justice Act 1988 but dismissed the reference, holding that the sentence was not unduly lenient.
2. Crown Court at Manchester: On 28 April 2023, the court sentenced Clarke to nine years’ imprisonment, with a concurrent two-year sentence for the proceeds of crime offence.