Atif Arif v R

An indicative drug quantity in sentencing guidelines is a starting point. A substantial excess may justify an increased starting point. Previous convictions are a statutory aggravating feature, particularly where earlier substantial sentences have not deterred further serious offending and the new offence was committed on licence. Additional offences causing additional harm may justify a further uplift, subject to totality. In conspiracy cases, the number of messages sent is not a determinative measure of a defendant’s role. Where recalled prisoners spend time in custody that will not count towards a later sentence, there is no automatic reduction, although the sentencing judge retains a discretion to do justice. Delay connected with awaiting legal rulings and a late guilty plea may justify refusing an adjustment.

The applicant pleaded guilty in the Crown Court at Manchester to two Class A drug-supply conspiracies and three Class B drug-supply conspiracies. On 27 October 2023, His Honour Judge Dean imposed concurrent sentences of 10 years and 3 months’ imprisonment on the Class A counts, with no separate penalty on the remaining counts.

The applicant renewed his application for leave to appeal against sentence and for a representation order after refusal by a Single Judge. He challenged the treatment of his previous convictions, the uplift for the Class B offences, the application of totality, the assessment of his role compared with a co-defendant, and the absence of an allowance for delay while he was recalled to custody. The central issue was whether any of those complaints disclosed an arguable sentencing error.

The renewed application for leave to appeal against sentence and for a representation order was refused.

1. Starting point and previous convictions. The guideline’s eight-year starting point was based on an indicative quantity of 1 kg of Class A drugs. The applicant was responsible for more than three times that quantity, so some increase was inevitable. A starting point of nine years and six months was not arguably wrong. His previous convictions were a statutory aggravating feature. His long custodial sentences for firearms offences had not deterred him, and he committed the new offences while on licence. The additional year was not excessive.
2. Additional offending and totality. The Class B conspiracies involved substantial quantities and additional harm. The relevant guideline starting points included four years for the amphetamine and cannabis offences and five and a half years for the ketamine offence. A combined two-year increase was modest, and the sentencing judge had plainly had considerable regard to totality.
3. Role. The number of EncroChat messages sent by each defendant did not determine their respective roles. The conspiracies required more than messaging, and the report addressed only one aspect of how they operated. There was no proper basis for reducing the applicant’s sentence or increasing the co-defendant’s sentence.
4. Delay and recall. Kerrigan [2014] EWCA Crim 2348 established that there was no automatic reduction where custody would not count towards the sentence because the offender had been recalled to serve an existing sentence. A judge nevertheless retained a general discretion to adjust a later sentence if justice required. The delays here included waiting for the outcome of EncroChat admissibility arguments, and the applicant had chosen to await those developments rather than plead guilty earlier. The judge was not obliged to make an allowance.
5. No arguable ground of appeal against sentence was disclosed.

• Court of Appeal (Criminal Division): refused the renewed application for leave to appeal against sentence and for a representation order. [2024] EWCA Crim 1195
• Crown Court at Manchester: on 27 October 2023, sentenced the applicant to concurrent terms of 10 years and 3 months’ imprisonment for the Class A drug-supply conspiracies, with no separate penalty for the Class B counts.