R v Leonard Andrew Delapehna

Sentencing for drug importation must reflect both harm and culpability. A guideline quantity is indicative, not a rigid threshold which automatically determines the category or sentence. The court must make an evaluative judgment, allowing for the actual quantity, the offender’s role and other culpability features. Where the quantity lies near the boundary between categories, the overlapping ranges may produce the same appropriate starting point. Significant personal mitigation, including ill health and age making imprisonment substantially harder, must receive real weight. A sentence is manifestly excessive where the sentencing judge fails to make the necessary adjustment for the quantity and mitigation.

After a jury trial at the Crown Court at Croydon, the appellant was convicted of fraudulent evasion of a prohibition, contrary to section 170(2) of the Customs and Excise Management Act 1979. He had imported about 4 kg of cocaine through Gatwick Airport and was sentenced to 10 years’ imprisonment.

He appealed against sentence with permission. He argued that the judge had adopted too high a starting point under the sentencing guidelines and had given insufficient weight to the quantity, his age and ill health, and delay in bringing the proceedings. The central issues were the correct starting point and the proper effect of mitigation.

1. Appeal allowed in part. The sentence of 10 years’ imprisonment was quashed and replaced with a sentence of 8 years’ imprisonment.
2. The reference to 5 kg as a category 1 “threshold” was treated as a slip. As explained by R v Boakye [2013] 1 Cr App R(S) 2, 5 kg is the indicative quantity on which the 10-year category 1 starting point is based. It is not the threshold at which the sentencing range changes from category 2 to category 1. The sentencing judge must adjust the starting point for the actual quantity, the nature of the significant role and any significant culpability features.
3. The category 2 starting point was 8 years, based on an indicative quantity of 1 kg, within a range of 6 years 6 months to 10 years. The category 1 starting point was 10 years, based on an indicative quantity of 5 kg, within a range of 9 to 12 years. The overlapping ranges did not create a rigid mathematical grid. The adjustment was an evaluative judgment bringing together harm and culpability.
4. On either analysis, 4 kg of cocaine required an adjusted starting point of 9 years. The identified culpability factors did not independently justify an upward adjustment. The quantity lay on the cusp between categories 1 and 2, so both approaches led to the same conclusion.
5. The judge had also failed to allow any reduction for mitigation. The appellant’s chronic obstructive pulmonary disease and severe emphysema, together with his age, made imprisonment substantially harder for him than for a younger, healthy offender. A reduction was therefore required.

• Court of Appeal (Criminal Division): [2024] EWCA Crim 204. The appeal against sentence was allowed to the extent that the 10-year sentence was quashed and an 8-year sentence substituted.
• Crown Court at Croydon: Following conviction after trial, the appellant was sentenced to 10 years’ imprisonment.