R v David Roberts & Ors

On an Attorney General’s reference alleging undue leniency, an appellate court should not interfere with an experienced trial judge’s categorisation under a sentencing guideline unless satisfied that it was plainly wrong. Role categorisation is an evaluative exercise requiring the court to balance all relevant characteristics, including the scale and duration of the operation, the offender’s function, influence and expected advantage. A factor capable of indicating a leading role does not automatically require that categorisation. Different roles at different stages of one conspiracy may be reflected in the overall assessment. The court may also take a practical, rough and ready approach where the evidence concerns changing involvement over time. Leave may be granted without interference with the sentence where appellate intervention would be unjustified.

The Attorney General referred as allegedly unduly lenient the sentences imposed by His Honour Judge Ashworth at Portsmouth Crown Court on three offenders convicted after a 28-day trial concerning conspiracies to supply cocaine and related drug-supply offences.

David Roberts and Max Roberts each received concurrent terms of nine years’ imprisonment for the principal cocaine conspiracy. George Barnes received a two-year sentence for a lesser role, suspended for two years with requirements for unpaid work and rehabilitation activity. The Attorney General argued that David and Max should each have been categorised as having a leading role, and that Barnes had a significant rather than lesser role. The central issue was whether the sentencing judge’s guideline categorisations were plainly wrong.

The court granted leave to refer in Barnes’s case but refused leave in the cases of David and Max Roberts. It did not interfere with any of the sentences.

1. Applicable approach. The Sentencing Council guideline requires the sentencer to weigh all the factors and balance characteristics falling under different role categories, or affected by the scale of the operation, to reach a fair assessment of culpability. That is an evaluative decision. Where it is made by a judge who presided over a contested trial, the Court of Appeal should uphold a challenge on an Attorney General’s reference only if the categorisation was plainly wrong.
2. Max Roberts. Influence over people below an offender in the chain does not by itself require a leading-role categorisation. Nor did the description that Max was providing a borough or town with cocaine establish that he was directing or organising buying and selling on a commercial scale. The judge was entitled to weigh the applicable factors and categorise Max as significant rather than leading.
3. David Roberts. The judge was entitled to account for David’s changing involvement. He could treat David as playing a leading role during the shorter period covered by Count 2 and approach the later period under Count 8 on the basis of reduced involvement. Sentencing him as having a significant role across the whole period was a reasonable rough and ready approach. The decisions cited as Khan, [2013] EWCA Crim 800, Smith (Shaun), [2020] EWCA Crim 994, and Hunter, [2022] EWCA Crim 994, did not preclude it.
4. George Barnes. The judge was entitled to find a lesser role at the tail end of a short conspiracy, despite features pointing towards a significant role. The court questioned how the judge moved downward from the guideline starting point of three years to the bottom of the range, but took account of the lengthy trial, the passage of time, Barnes’s youth, immaturity and good character, and the drastic nature of disturbing the decision not to impose immediate custody. Leave was granted, but the sentence was left undisturbed.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under s.36 of the Criminal Justice Act 1988, leave was refused in respect of David Roberts and Max Roberts. Leave was granted in respect of George Barnes, but the court did not interfere with any sentence.
• Portsmouth Crown Court: His Honour Judge Ashworth sentenced David Roberts and Max Roberts to concurrent terms of nine years’ imprisonment, and sentenced George Barnes to two years’ imprisonment suspended for two years with unpaid work and rehabilitation requirements.