R v Scott Gavin Parry

On a reference under section 36 of the Criminal Justice Act 1988, a sentence is unduly lenient only where it falls outside the range reasonably open to the sentencing judge. Leave is exceptional and addresses gross error, rather than borderline cases. Under section 59 of the Sentencing Act 2020, relevant sentencing guidelines must be followed unless contrary to the interests of justice. For the most serious commercial-scale drug offending, involving quantities significantly above category 1 and a leading role, a starting point of 20 years or more may be appropriate. Personal mitigation may warrant only a modest reduction. A sentence of 17 years was substituted.

The respondent pleaded guilty to supplying 82 kilograms of cocaine and possessing criminal property. At the Crown Court at Southampton, HHJ Christopher Parker KC sentenced him to 13 years and 8 months' imprisonment for the lead drug offence, with a concurrent sentence on the second count. The Solicitor General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issue was whether the sentencing judge had adopted too low a starting point and given excessive weight to mitigation, having regard to the scale of the operation and the respondent's leading role.

1. The court applied the established principles governing a section 36 reference under the Criminal Justice Act 1988. The first-instance judge is well placed to weigh competing sentencing factors. A sentence is unduly lenient only if it falls outside the range reasonably open to that judge. Leave should be granted only exceptionally, and not in borderline cases. The jurisdiction is directed to gross error. Those principles were summarised in Attorney-General's Reference (Azad) [2021] EWCA Crim 1846; [2022] 2 Cr App R (S) 10, with the statutory purpose also explained in Attorney-General's Reference (No 132 of 2001) (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R (S) 41.
2. Section 59 of the Sentencing Act 2020 requires the sentencing court to follow any relevant guideline unless doing so would be contrary to the interests of justice. The drugs guideline expressly recognises that, where offending is on the most serious and commercial scale and involves quantities significantly above category 1, a starting point of 20 years or more may be appropriate depending on the offender's role.
3. The respondent's involvement in the wholesale supply of 82 kilograms of cocaine, together with the finding that he played a leading role, made this an instance where the ordinary guideline range was inadequate. A starting point in the region of 21 years was appropriate before mitigation. The court also derived assistance from the principles summarised in Cuni & others [2018] EWCA Crim 600; [2018] 2 Cr App R (S) 18, including the limited weight ordinarily given to mitigation in very serious commercial offending.
4. The sentencing judge allowed too great a reduction for mitigation. A reduction of one year was appropriate, producing a notional sentence of 20 years after trial. The agreed 15 per cent reduction for the guilty plea then produced 17 years.
5. Leave was granted. The sentence of 13 years and 8 months on count 1 was quashed and a sentence of 17 years substituted. The concurrent sentence on count 9 was left undisturbed, giving a total sentence of 17 years.

• Court of Appeal (Criminal Division): On the Solicitor General's reference under section 36 of the Criminal Justice Act 1988, leave was granted and the sentence on count 1 was increased from 13 years and 8 months to 17 years: [2024] EWCA Crim 1017.
• Crown Court at Southampton: HHJ Christopher Parker KC sentenced the respondent to 13 years and 8 months for the lead offence, with a concurrent sentence on count 9.