Imprisonment - Length of sentence - Conspiracy to supply Class A drug

Attorney General's Reference (No 40 of 2011) R v Williams: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mr Justice Tugendhat, Mr Justice Griffith Williams, judgment delivered extempore): 2 September 2011

In September 2010, US customs officers intercepted a parcel that was bound for an address in London. The parcel was carried into the UK in the hands of an airline pilot and was subsequently handed to the UK border agency. When the parcel was opened, it was found to contain a bubble wrapped envelope containing a large packet of a white substance.

Upon analysis, the white substance was found to be cocaine hydrochloride weighing 988 grams. It was resolved to allow the parcel to continue to its intended destination which was the home of the offender. Later in September, a police officer attended the address posing as a delivery man. The door was answered by the offender's girlfriend.

The officer explained that he had a delivery for 'Mr Smith' and that Mr Smith's signature was required. The response of the offender's girlfriend was to call out for the offender, shouting 'Smithy'. The offender subsequently confirmed that he was Mr Smith and signed for the parcel. Not long afterwards, uniformed officers entered the property.

Upon questioning, the offender said that he didn't know what the content of the parcel was and said that Mr Smith was a friend. He said that he had met Mr Smith in the bookmakers and that he didn't know where he lived. Upon being arrested, the offender gave a similar account and said that on the previous Saturday a man had asked him if he would have a package delivered to his address in exchange for a drink.

The offender maintained that he did not know what would be in the package. The offender was convicted in March 2011 of conspiracy to supply a Class A drug (cocaine). The sentencing recorder referred to the need to perform a public duty and recognised that a substantial sentence was warranted. Having regard to the mitigating features of the case, the she considered whether it was open to her to impose a sentence of three-and-a-half to five years imprisonment.

Counsel for the defence subsequently pointed out that the offender had already spent 240 days on remand and invited the recorder to impose a sentence of twelve months' imprisonment suspended for two years. The recorder subsequently had further regard to the various mitigating features including, inter alia: (i) the contents of a psychiatric report on the offender which alluded to his comparatively low IQ and there being an element of vulnerability about him; and (ii) the offender's poor state of health. She expressly took into account the fact that the offender had already spent 240 days on remand.

The recorder concluded that the offender should be sentenced on the basis that the quantity of drug was in the medium range and that the offender had definitely played a subordinate role in the offence and that therefore the range of three-and-a-half to five years' imprisonment was appropriate. She imposed a discount for the fact that the offender might not have realised the quantity of drug that he was receiving.

The offender was accordingly sentenced to twelve months' imprisonment suspended for two years with a two year residence requirement on the basis that he had thought he was receiving only a very small amount of the drug. The Attorney General sought leave to refer the sentence to the Court of Appeal as unduly lenient, pursuant to section 36 of the Criminal Justice Act 1988. Leave was granted.

It was common ground that the conventional sentence for conspiring to import and supply that quantity of cocaine would be in the region of five to eight years' imprisonment. The Attorney General accordingly submitted that the sentence had been unduly lenient.

The court ruled: In all the circumstances of the case, the sentence had been unduly lenient. The recorder had been entitled to reach the conclusion she had in relation to the mitigating factors and it was, in principle, possible to take an exceptional course when sentencing. However, the instant case did not fall into the exceptional category.

The importing of a Class A drug had such public importance that immediate sentences had to be the expectation, save for in exceptional circumstances. Accordingly, the offender's sentence of twelve months' imprisonment suspended for two years with a two year residence requirement would be quashed and sentence of three-and-a-half years' imprisonment would be imposed.

Matthew Morgan (instructed by Somers & Blake) for the defendant. William Emlyn-Jones (instructed by the Treasury solicitor) for the attorney general.