R v Henry Hendron

For an offence under section 44 of the Serious Crime Act 2007, where no offence-specific sentencing guideline exists, the court should begin with the guideline for the offence encouraged or assisted. It must then adapt that guideline to the precise factual matrix and assess culpability, harm, aggravation and mitigation.

The encouraged criminal conduct remains the core of sentencing. Where an offender encourages known drug suppliers to supply drugs, the drug-supply guideline is the proper starting point even if the intended supply is to the offender personally. Personal use may affect role and sentence, but not the choice of starting guideline.

The appellant, a barrister, pleaded guilty at Woolwich Crown Court to three offences of intentionally encouraging or assisting the commission of an offence, contrary to section 44 of the Serious Crime Act 2007, and to possession of a Class A drug. He had sent messages seeking drugs from two remand prisoners whom he represented in criminal proceedings.

His Honour Judge Jonathan Mann KC imposed a total sentence of 14 months’ immediate imprisonment. The appellant sought leave to appeal against sentence on six grounds. The Court of Appeal granted an eight-day extension of time and leave on the grounds alleging use of the wrong guideline and manifest excess. It refused leave on the remaining grounds.

The central issue was whether the sentencing judge correctly used the drug-supply guideline and whether the total sentence was manifestly excessive.

1. Appeal dismissed. The court granted the short extension of time, granted leave to appeal on grounds 1 and 2, and treated the hearing as the appeal. It refused leave on the remaining grounds.

2. There is no Sentencing Council guideline specific to section 44 of the Serious Crime Act 2007. The sentencing court should therefore make appropriate reference to the guideline for the offence which the offender encouraged or assisted, and adjust it for the facts. Section 58(3) makes the offender liable to the same maximum penalty as the anticipated or referenced offence. The criminal conduct encouraged is the core of the offence, while the overarching principles require assessment of culpability and harm.

3. The judge correctly selected the drug-supply guideline. The appellant encouraged two prisoners, whom he knew to be drug suppliers, to supply drugs. That the drugs were sought for his own use was relevant to adapting the guideline, including treatment of his role as analogous to a lesser role, but did not displace supply as the appropriate sentencing starting point. The court noted the comparable use of the underlying-offence guideline in Reeve [2018] EWCA Crim 2015 and other authorities.

4. The 18-month starting point for the lead Class A offending was open to the judge. The repeated offending, relevant convictions, and the appellant’s abuse of his position as the legal representative of the proposed suppliers were serious aggravating features. Personal mitigation and the guilty plea properly reduced the sentence. Totality was correctly applied, and the concurrent possession sentence was properly assessed as part of the overall criminality.

5. Immediate custody was justified. The court stressed that its assessment of the appellant’s professional conduct was an aggravating feature of the criminal sentence, not an exercise in professional regulation or discipline. The resulting 14-month sentence was neither excessive nor manifestly excessive.

• Court of Appeal (Criminal Division). In [2024] EWCA Crim 338, the court granted an eight-day extension of time, granted leave to appeal against sentence on two grounds, refused leave on four grounds, and dismissed the appeal.

• Crown Court at Woolwich. On 13 June 2023, His Honour Judge Jonathan Mann KC imposed a total sentence of 14 months’ immediate imprisonment following guilty pleas.