Whyte, R. v

Factual and Procedural Background

The Appellant, aged 52, pleaded guilty on 27 October 2022 at the Crown Court at Harrow to two offences of conspiracy to supply Class B controlled drugs: cannabis (Count 1) and ketamine (Count 2). On 16 February 2023, HHJ Thompson sentenced the Appellant to a total of 7 years and 6 months' imprisonment. The Appellant was involved in purchasing large quantities of cannabis from a wholesaler, Company A, between 22 March 2020 and 1 June 2020, with expert evidence estimating the quantity between 318 and 343 kilograms. Regarding the ketamine conspiracy, intercepted communications concerned 10 kilograms, but it was unclear if a deal was completed. The Appellant appealed the sentence with leave of the single judge.

Legal Issues Presented

1. Whether the sentencing judge erred in categorising the Appellant’s role as a leading role rather than a significant role within the drug conspiracy.
2. Whether the sentencing judge failed to sufficiently consider the Appellant’s mitigation.
3. Whether there was an unjustifiable disparity between the Appellant’s sentence and that imposed on Company A’s principal, who was involved in a related conspiracy.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that his role was more accurately characterised as significant rather than leading, which should have resulted in a lower sentence within the Sentencing Guidelines range.
• The Appellant argued that the judge did not adequately weigh his mitigation, including his lack of recent convictions and positive character references.
• The Appellant submitted that the sentence was disproportionately harsher compared to the sentence imposed on Company A’s principal, despite overlapping conspiracies.

Court's Response to Arguments

• The court rejected the submission that the Appellant’s role was significant rather than leading, noting that the Sentencing Guidelines’ role descriptions are indicative and not exhaustive. The Appellant’s activities, including organising commercial-scale buying and selling, arranging deliveries, and maintaining close links to the original source, supported the leading role classification.
• Regarding mitigation, the court acknowledged the judge’s failure to explicitly explain each step of the sentencing calculation but undertook that exercise itself. It concluded that while mitigation was a factor, it did not warrant a reduction greater than approximately two years prior to the plea discount, given the scale of the conspiracy and volume of communications.
• On disparity, the court found the Appellant’s and Company A’s principal’s situations not directly comparable due to differences in charges, quantity, and the presence of a basis of plea for Company A’s principal. The court held that the Appellant’s sentence was neither manifestly excessive nor indicative of a miscarriage of justice.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court emphasised that the Sentencing Guidelines provide indicative characteristics for roles within conspiracies but do not exhaustively define them. It found multiple factors supporting the Appellant’s leading role, including the organisation of drug transactions on a commercial scale, arranging deliveries, and close connections to the drug source. The court rejected the argument that the Appellant’s expected financial gain was modest, highlighting the substantial quantities involved.

In analysing mitigation, the court reconstructed the sentencing steps: starting from an 8-year baseline for a leading role in category 1 cannabis offences, it justified an uplift to 10 years due to the larger quantity and use of encrypted communication devices. The ketamine offence, involving twice the indicative quantity, further supported an overall starting point of approximately 12 years when considering totality. Mitigation was acknowledged but limited in effect, and a 25% reduction for the guilty plea was applied, resulting in the 7 years 6 months sentence.

Regarding disparity, the court noted the different factual and procedural contexts of the Appellant and Company A’s principal, including the latter’s basis of plea and personal circumstances. The test for disparity requires a sentence to be manifestly excessive or evidence of injustice, which was not met.

Holding and Implications

The court DISMISSED the Appellant’s appeal against sentence.

The decision upholds the sentencing judge’s classification of the Appellant’s role as leading and the overall sentence imposed. It confirms the principle that Sentencing Guidelines are indicative and flexible, allowing judicial discretion based on the totality of circumstances. The ruling clarifies that mitigation and plea discounts must be balanced against the scale and nature of offending. No new precedent was established; the ruling primarily affects the parties by affirming the sentence imposed on the Appellant.