SUPPLY
VOLUME 2
358.3
Sentencing Council guideline
R v Boakye 2012 EWCA Crim 838 In Step 1, the quantities of drug which are listed under the
categories of harm in the new guideline is deliberately described as, "indicative quantity of drug upon
which the starting point is based". They are not thresholds at which the sentencing range changes.
They could not be if the starting point, which by definition is a mid-range of sentence, is to be based
upon it.
Note: I read this to mean that a) in fixing the starting point, sentencers take the given weight and the
given starting point and adjust them either up or down to reflect the actual weight in the case and b)
the starting given is flexible. Ed.
358.3a Applying the guidelines
Att-Gen’s Ref Nos 15-17 of 2012 2012 EWCA Crim 1414 If the Sentencing Council had intended to
lower the level of sentencing that was not reflected in their press release, ‘There will be no change in
sentencing for possession or drug supply offences.’ The essential nature of a drugs hierarchy remains
the same even if the terminology has changed. There was a time when some judges divided offenders
according to military ranks: generals, lieutenants and foot soldiers. The Council has chosen the
categories of 'leading', 'significant' and 'lesser' roles. This is not a change in substance. The categories do
not provide some kind of straightjacket into which every case must be squeezed. The judge must do his or
her best to reach a fair assessment of the overall offending, namely culpability and harm, before
proceeding to the next stage (step two). The judge should declare their conclusions on step one in their
sentencing remarks, for the benefit of the offender, those advising the offender, and this Court.
358.3b
New guideline: No retrospective application
R v Boakye 2012 EWCA Crim 838 Whenever there is a change of tariff, and whether it is the result of
Parliamentary or other intervention, there is inevitably potential for different outcomes between
offenders sentenced before the change and those sentenced after it. We do not, however, agree that
this creates an injustice towards those who were perfectly properly sentenced before the change. On
the contrary, to apply the guideline retrospectively would carry a greater risk of injustice. The
injustice would then be to those who were sentenced under the same regime as offenders who now
seek retrospective alteration, but whose sentence, because it has been served, cannot be adjusted. The
reality is that any change has to start at some point.
358.4
Applying the guidelines
R v Healey 2012 EWCA Crim 1005 The quantities that appear in the pictorial boxes as broad
indicators of harm are neither fixed points nor are they thresholds. They are ‘indicative’, designed to
enable the judge to put the case into the right context on the sliding scale.
358.4a
Guideline remarks
Att-Gen’s Ref Nos 82-96 and 104-109 of 2011 2012 EWCA Crim 155, 2 Cr App R (S) 56 (p 320) All
dealers are not of course the same. Each must be considered on the facts of his individual case. On the
whole the greater the quantity the more serious the offence is likely to be. Similarly, the longer the
period over which supplies were made the graver is the case likely to be. The greater the profit the
more serious the case is likely to be. On the whole, wholesale supplies, that is to say supplies to those
who then supply onward to individual consumers, is likely to be more serious than retail supply
because of the quantity involved.
358.7a
Couriers
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Att-Gen’s Ref Nos 82-96 and 104-109 of 2011 2012 EWCA Crim 155, 2 Cr App R (S) 56 (p 320) Just
as dealers vary so do transporters or, as they are often conveniently labelled, couriers. Some people
fulfilling the role of transporting drugs may in fact be very close to the central organisers of the trade,
the entrepreneurs. Judges will be alert to the efforts that such people are likely to make to assert that
they are mere functionaries when they are not and judges are not only entitled but bound to draw
proper inferences from the evidence before them as to the true state of affairs. Other couriers,
however, are little more than hired hands. They operate under the direction of the entrepreneurs and
are likely to be paid in one way or another per task.
358.9a
Joint possession
R v Denslow 1998 EWCA Crim 432 D pleaded to supplying heroin after a ruling of law. He had
offered to plead to possession. D and another each put £150 together to purchase heroin. D paid the
money to the dealer and received two bags of heroin. He handed one to his co-purchaser. The Judge
gave him an absolute discharge. D appealed his conviction. Held. We wonder why it was necessary to
charge supply. It was inevitable that the defendant would be dealt with at worst as though he were in
possession of the drugs. His plea to possession should have been accepted.
Att-Gen’s Ref Nos 82-96 and 104-109 of 2011 2012 EWCA Crim 155, 2 Cr App R (S) 56 (p 320)
[Supplying to friends] is to be contrasted with a genuine case of a supply which is wholly technical.
That can happen, for example, if two friends together purchase an evening's supply and one alone
concludes the transaction before passing over a share to the friend. That is not supply in the ordinary
sense and is absent any financial or benefit component at all. That kind of transaction is rightly treated
differently, e.g. R v Denslow 1998 EWCA Crim. 432.
Note: There is a clear distinction between joint purchase and social supply. R v Wolfe 2011 EWCA
Crim 2301 doubted the correctness of the R v Denslow decision but the 2012 case affirms it. Ed.
358.9b
Test purchases
Att-Gen’s Ref Nos 82-96 and 104-109 of 2011 2012 EWCA Crim 155, 2 Cr App R (S) 56 (p 320)
Less damage is done where supply is to test purchase officers. However ordinarily, making supplies
of that kind will be an indication that the defendant has a practice of general supplying and that is
likely to remove any mitigation which derives solely from the identity of the particular recipient in
question.
Note: Although the case was heard before the guidelines were produced, the principles appear to be of
general application. Ed.
358.17
Minimum 7 years class A suppliers
Cases
R v Timperley 2012 EWCA Crim 1782 D pleaded (full credit) to supply of class A (×3). Police
mounted an undercover operation to tackle class A drug supply. Officers attempted to make contact
and subsequently test purchases from dealers. An officer approached D and asked where he could
“score a couple of bags.” D contacted a dealer and took the officer to a park. The officers gave D £20
and he took it to a dealer and came back with two wraps of heroin weighing 0.17 (12%) and 0.22
grams (19%) which he gave the officers. There were two other incidents of D obtaining drugs on
behalf of undercover officers at similar weights. The third transaction concerned heroin of a purity
around 44%. D was aged 39 at appeal and had convictions for supply of class A (×2) and possession
of class A with intent (×2). He had been released from prison 10 days before the first offence. Held.
D’s role was less than an actual dealer but could not be described as extremely low. The deals were
for modest amounts with little financial reward. This was a third strike case but the Judge
appropriately disapplied the minimum sentence, because of the relative antiquity of the qualifying
convictions (the last one was 8 years ago), the circumstances of the three offences in which he was a
go-between, the absence of his own stocks, the modest amount supplied, the limited rewards and the
fact that he was ‘effectively seduced’ to act.
358.18a
Defendant under 18
2 Supply No 8.doc
Class A
Post-guideline
2
R v Yusuf 2012 EWCA Crim 2210 D pleaded on rearraignment to conspiracy to supply class A (×2).
The drugs were crack cocaine and diamorphine. Police officers searched a man outside a block of
flats. He was in possession of a small wrap of crack cocaine, some money, a telephone and some keys
to one of the flats. The officers searched a flat. Inside were D and another man. D was lying on a bed
next to a coffee table on which there was 76 wraps of crack cocaine and diamorphine, as well as some
mobile phones which were ringing frequently. The drugs were worth £780, weighing 13 grams.
Analysis of the telephones showed that D had received text messages instructing him where to go to
deliver drugs. The basis of plea accepted he was a courier for a period of around 3 weeks as it was the
only way to feed and house himself. D, aged 18, was of previous good character. The Judge
characterised D as playing a significant role as his motivation was financial, and described the
offending as street dealing. He started at 4½ years. Held. There could be no criticism of the Judge’s
assessment of the dealing. Because of his age and plea, 27 months’ detention not 3 years.
358.31
Prisoners, Supply to
Cocaine or heroin
Guideline remarks
R v Wilkinson 2011 EWCA Crim 2415 D was pleaded to smuggling drugs into prison. Held. We are
told, and we accept, that the drugs were three times more valuable within prison than they would be
on the street.
*R v Sanchez-Canadas 2012 EWCA Crim 2204 The Judge moved the category from 4 to 3 because
the supply was into prison. Held. That was wrong. The supply of drugs into prison is in itself
inherently more serious than the supply of drugs generally is. That is because drugs in prison are a
currency, an instrument of power, extortion and oppression and they fundamentally undermine the
discipline and good order which is essential to running a prison properly. The supply of drugs into
prison ought usually be described as best fitting into the significant role category than the lesser role
category. It will ordinarily demand a prison sentence, even where there is no commercial motive and
indeed where the supplier has come under some moral pressure. The Judges starting point of 5 years
(which was the top of the range. Ed.) could be justified.
For more detail see the next paragraph.
358.31a
Prisoners, Supply to
Cocaine or heroin
Cases
R v Wilkinson 2011 EWCA Crim 2415 D pleaded (full credit) to smuggling 6.62 grams of heroin,
1.75 grams of cocaine and 27 subutex tablets (a heroin substitute) into prison. In 2004, D was in a
relationship with M. The relationship broke down by D remained loyal to M. They had a son. M was
sent to prison in 2010 and D visited him, taking their son with her. M repeatedly asked her to bring
him drugs. He stated that he was in danger and that there were people who would harm and kill him.
She initially refused but eventually acquiesced. She was not paid anything. She received instructions
that the drugs would be left in a suitcase in her back garden. She took the drugs to the prison in two
packages. Subutex has a particularly high value in prison. She went to the lavatory to move the drugs
from her bra, the purpose of which was to avoid detection by the sniffer dogs. She then passed the
drugs to M. In prison, the drugs were worth over £2,000. D was of good character and the carer for
her five children. Held. D was manipulated by M, and she was precisely the type of woman who is
targeted by those in prison. She made good progress in prison. The separation from her children is
undoubtedly difficult, however 4 years cannot be said to be manifestly excessive.
Note: Although the case was decided before the guidelines were issued, it is listed to show the
principle that in these cases deterrence takes precedence over personal mitigation. Ed.
*R v Sanchez-Canadas 2012 EWCA Crim 2204 D pleaded to supplying class A and class B drugs
into prison. He sent a prisoner in Winchester prison a box containing a pair of trainers with hidden in
them 10.75 grams of heroin and around 23 grams of cannabis resin in 11 different wraps. The package
was intercepted. D was traced by a fingerprint left on the package. The drugs were destined for a
friend called LC who was a drug addict and had pleaded with D to send the drugs to him. D said that
LC had arranged for a third party, whom D did not know, to bring the trainers and the heroin to him.
D hollowed out the trainers and made up the package, including adding the cannabis resin. The
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package was addressed to another prisoner who would be able to deny any connection and the return
address on the package was not D’s. D told police that he was managing LC’s money, allowing him to
transact business in prison. After his first appearance, he absconded to Spain where he remained for
10 years. He was eventually arrested and brought back to the UK. D was aged 42 when he committed
the offences and in his fifties when he was sentenced. He had a conviction in 1992 for drug supply.
Held. This was a significant role, category four case. The fact that this was an attempt somewhat
mitigates the sentence. This was a carefully thought out and well concealed supply. The Judge’s
starting point of 5 years could be justified by the combination of factors. D pleaded, but only after the
public had been put to the trouble and expense of hunting him in Spain. The time and effort which D
saved by his extremely belated plea of guilty on the first day of trial after endeavouring to evade
justice for 10 years is certainly not greater than the time saved by a man who pleads guilty on the first
day of trial. We would give no more than 10% credit. With that in mind, there is nothing wrong with
3 years 9 months.
358.32a
Purity Proper approach
Drug Offences Guideline 2012, see www.banksr.com Other matters Guidelines tab page 4 Purity is
not taken into account at Step 1 but is dealt with at Step 2. For more detail see PP.
358.33b
Purity
What is required?
R v Morris 2001 1 Cr App R (S) 87 (p 297) Purity analysis is essential for sentencing purposes for
cases of importation, or in other circumstances where 500 grams or more of cocaine, heroin or
amphetamine are seized. It may be desirable in cases where quantities less than 500 grams of those
substances are seized. But, bearing in mind the cost of purity analysis and that analysis may cause
delay, purity analysis will not generally be required where a defendant is in possession of only a small
amount consistent with either personal use or only limited supply to others. As purity can indicate
proximity to the primary source of supply, if there is reason for the prosecution to believe that a
defendant in possession of a small quantity of drugs is close to the source of supply and is
wholesaling rather than retailing, it will be necessary for purity analysis to be undertaken before a
court can be invited to sentence on this more serious basis. In the absence of purity analysis or expert
evidence, it is not open to a court to find or assume levels of purity, except in the case of ecstasy and
LSD [because sentencing for them is based on tablets and squares] and currently with an assumed
average purity of 100 mgs of ecstasy (R v Warren and Beeley 1996 1 Cr App R (S) 233) and 50
micrograms of LSD (R v Hurley 1998 1 Cr App R (S) 299 at 304) unless prosecution or defence, by
expert evidence, show the contrary (R v Warren and Beeley 1996 1 Cr App R (S) 233 and R v
McPhail 1997 1 Cr App R (S) 321 at 322).
R v Boakye 2012 EWCA Crim 838 Whereas the previous case law proceeded upon the basis of
quantity of drugs measured at 100% purity, the new guideline does not. The reason is that the Council
was advised that in many cases, especially at the lower end of offending, scientific analysis of purity
may not be available. For this reason, amongst others, the indicative quantities of weight, which the
new guideline adopts as a broad measure of harm, are not the same as those spoken of in Aramah, as
subsequently modified. They are gross, not 100% purity weights. Of course, in dealing with a large
consignment where there has been analysis and the weight at 100% purity is known, a court may well
pay attention to the additional information which it has been given. It may determine to adjust up or
down, either for very high or very low purity. However, the initial indicator of the category of offence
is the weight as seized.
Note: The explanation for the change given in lines two to six does not deals with the problem of
those who import or supply at cocaine at 1%. Consider two individuals who both have 1 kilo of
cocaine at 88% and intend to cut it to make 5 kilos. If police arrest the first before he cuts it and the
second just after he cuts it, why should they have different starting points? The ability to adjust the
sentence for purity is little help as different judges would no doubt give different adjustments for
similar cases. Ed.
*358.37a
2 Supply No 8.doc
Cannabis
Class B
1-10 kilos
4
R v Wetheridge 2012 EWCA Crim 2365 D was convicted of possession of cannabis with intent to
supply, having the previous day pleaded to simple possession. A search of D’s house found a
sandwich box containing numerous packages of skunk cannabis, weighing 46.4 grams, and two
further packages containing 0.6 and 0.7 grams of skunk cannabis. There was also a wallet containing
£560, a cannabis grinder, empty self-seal bags, electronic scales, two mobile phones and a SIM card.
One of the phones received a text message saying, “Its jay sam you got any green?” D, aged 24, was
employed and this was his first drug trafficking offence, however he had cautions for simple
possession in 2006 and 2011 (cannabis) and 2008 (cocaine). Held. This was a category 3 case. The
Judge was entitled to find that this was not an isolated offence, but was obliged to pass a sentence
which reflected the specific offending. Considering the D’s age, record and the amount of cannabis
involved, a 12-month increase from the starting point was not warranted. 15 months not 2 years.
358.37b
Providing limited assistance
R v Evans 2012 EWCA Crim 1758 D pleaded to conspiring to supply class B drugs. He worked at a
garage and as he was closing up for the evening, a van drove onto the forecourt of the premises
opposite. The van was followed by another van. A man, whom D knew as a regular customer, got out
and asked him to help move some boxes from one van to another. He began to help and as he did so
noticed that some of the boxes were damaged, resulting in the content spilling out. He saw that they
were bars of cannabis resin. He panicked and was worried about what would happen to him if he
refused to carry on. He re-stuck the Sellotape and continued to load the boxes. The vans left and the
man said he would “sort” D out with a “drink”. D was never paid for his assistance. D was arrested as
his fingerprints were on the boxes. He volunteered information about his involvement and the name of
the man whom he knew. The consignment of cannabis resin weighed 226 kilos and had a street value
in excess of £1.1m. D was aged 33 at appeal and was treated as having no previous convictions. He
lived with his parents and his daughter, for whom he was the primary carer. He showed genuine
remorse. Held. The Judge must have started at 2 years, placing the offence at a low level for category
1, with D playing a lesser role. The factors reducing the seriousness of the offence were significant.
This was an isolated incident which started out entirely innocently, and it was only fear which caused
him to continue. There was also a delay of 8 months before being sentenced. A short prison sentence
may have been unavoidable, but as D had served the equivalent of a 6-month sentence, 50 weeks
suspended with unpaid work, not 16 months.
*358.42
Cocaine/Heroin
Class A
Less than 1 kilo
R v Miller 2012 EWCA Crim 2614 D was convicted of possession of crack cocaine with intent to
supply. Upon searching D’s address, police officers found 86.5 grams of crack cocaine at 22% purity
hidden in the kitchen. The street value was nearly £8,000. D had convictions for possession of cocaine
and cannabis (1997 and 1998) and supplying ½ kilo of heroin and 420 grams of crack cocaine in
2009, worth £57,500. The instant offence was committed whilst on licence from that sentence. Held.
This was a category 3, significant role case. The amount found was little over half of the indicative
figure for category 3. An upward adjustment was warranted to reflect D’s previous and the fact he
was on licence. 6 years not 7.
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