Rainey & Ors, R. v (Disparity of Sentencing & Serious Crime Prevention Orders)

Factual and Procedural Background

This is an appeal, granted leave by Judge Fowler, against custodial sentences and Serious Crime Prevention Orders (SCPOs) imposed by Judge Greene KC on 28 September 2022 following guilty pleas to multiple drug offences. The appellants are two brothers, referred to as Appellant A and Appellant B, and their co-accused, Defendant C. Appellant A and Appellant B were each sentenced to four years’ custody and made subject to SCPOs, while Defendant C was sentenced to three years and four months’ custody and also made subject to a SCPO.

The offences involved the supply and possession of Class A (cocaine), Class B (cannabis), and Class C drugs (diazepam and pregabalin) during specified periods in 2020 and 2021. The prosecution case relied heavily on forensic analysis of the defendants’ mobile phones, revealing extensive messaging indicative of drug dealing, including the use of 'runners' and safe houses. Searches of their homes yielded drugs, paraphernalia, cash, and mobile phones, which further supported the prosecution’s case.

Appellant A and Appellant B were on police bail at the time of the index offences for similar drug supply offences and have pleaded guilty to those earlier offences, awaiting sentencing. Defendant C had a significant history of drug-related convictions and previous breaches of SCPOs.

Pre-sentence reports described Appellant A as having a high likelihood of reoffending, with a history of substance misuse and poor mental health; Appellant B as presenting a medium likelihood of reoffending with a history of drug misuse and personal trauma; and Defendant C as having a high likelihood of reoffending with extensive prior convictions and substance misuse issues.

Legal Issues Presented

1. Whether the custodial sentences imposed on Appellant A and Appellant B were manifestly excessive and whether there was unjustified disparity compared to the sentence imposed on Defendant C.
2. Whether the imposition of Serious Crime Prevention Orders on all appellants was necessary and proportionate.
3. Whether specific terms within the SCPOs, including stop and search powers and prohibitions on association, were disproportionate or unenforceable.

Arguments of the Parties

Appellants' Arguments

• Appellant A and Appellant B contended that their custodial sentences were manifestly excessive and that there was a marked disparity compared to Defendant C’s sentence.
• Appellant B and Defendant C argued that the imposition of the SCPO was unnecessary and disproportionate.
• All appellants challenged specific clauses within the SCPOs as disproportionate, particularly the broad stop and search powers and the prohibition preventing association between Defendant C and the Appellants.

Prosecution's Arguments

• The prosecution submitted that the custodial sentences were appropriate given the scale, persistence, and commercial nature of the drug supply offences, including use of runners, safe houses, and encrypted communications.
• The prosecution argued that the SCPOs were justified as there were reasonable grounds to believe the orders would protect the public by preventing further involvement in serious crime, supported by evidence of past offending, breaches of previous SCPOs, and high likelihood of reoffending.
• Regarding the challenged SCPO terms, the prosecution maintained these were necessary and proportionate to ensure enforceability and to prevent future offending, emphasizing that the stop and search powers under the SCPO regime differ from ordinary police powers and are subject to safeguards and professional standards.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hogg & Ors [1994] NI 258	Guideline starting points for sentencing in drug supply cases	Court rejected appellants’ submission that a rigid ceiling applied, affirming that the starting point can be adjusted depending on facts.
R v McIlwaine [1998] NICA	Sentencing for drug offences as deterrent and lengthy custodial sentences justified	Cited to support the appropriateness of the sentences imposed for serious drug supply.
R v Darragh & Anor [2001] NICA 3	Professional drug dealers receive lengthy custodial sentences	Reinforced the deterrent purpose of sentencing in drug supply cases.
Archbold [2023] para 5A99	Disparity in sentencing between co-defendants difficult ground for appeal; improper sentence for one does not justify changing proper sentence for another	Court applied this principle to reject disparity argument.
Fawcett (1983) 5 Cr. App. R.(S.) 158	Disparity grounds require a marked difference causing real grievance	Referenced to explain high threshold for disparity appeals.
R v Alan Stewart [2009] NICA 4	Marked disparity required to justify sentence reduction on appeal	Applied to reject disparity claims absent very marked difference.
R v Ellis [1986] 10 NIJB	Disparity must amount to unfairness to appellant, not just fortune of co-defendant	Used to clarify the test for disparity appeals.
R v Murdock [2003] NICA 21	Disparity must be marked to require redress	Supported the rejection of disparity ground.
R v Hancox & Duffy [2010] EWCA Crim 102	Principles for imposing Serious Crime Prevention Orders: focus on future risk, necessity, proportionality, and enforceability	Guided the court’s analysis of SCPO necessity and proportionality.
R v McGrath [2017] EWCA 1945	SCPOs must be necessary, proportionate, precise, practical, and enforceable	Applied in assessing the terms of the SCPOs.
Fox, McNulty & Canning [2013] NICA 19	Issues relating to lawfulness of stop and search powers	Referenced by appellants in challenge to stop and search provisions.

Court's Reasoning and Analysis

The court undertook a detailed review of the evidence, including forensic analysis of mobile phone messages, which demonstrated persistent, organised, and commercial-scale involvement in the supply of Class A and B drugs by Appellant A and Appellant B. The court rejected submissions minimizing their role or the scale of offending, emphasizing the significant profits and sophisticated methods employed, such as the use of runners, safe houses, and encrypted communication platforms.

Regarding sentencing, the court held that the starting point of six years’ custody was appropriate given the facts, rejecting any rigid ceiling on sentencing for appreciable commercial quantities of drugs. The court further concluded that the sentences imposed were not manifestly excessive and that the disparity between the sentences of the appellants was not unjustified or so marked as to warrant interference. The court emphasized established principles that improper leniency toward one co-defendant does not justify altering a proper sentence of another.

On the SCPOs, the court analyzed the statutory framework under the Serious Crime Act 2007 and relevant case law, particularly R v Hancox & Duffy and R v McGrath, to assess necessity, proportionality, and future risk. The court found reasonable grounds to believe that the orders would protect the public by preventing or restricting further involvement in serious crime, given the appellants’ offending history, likelihood of reoffending, and previous breaches (in Defendant C’s case).

The court addressed challenges to specific SCPO terms, including the broad stop and search powers and prohibitions on association. It recognized the importance of these powers to enforce the orders effectively and prevent reoffending, noting that these powers differ from ordinary police powers and are subject to safeguards such as professional standards, ethical codes, and supervisory procedures. The court was satisfied that the amended SCPO terms were necessary and proportionate to the risks identified.

Holding and Implications

The Court of Appeal DISMISSED the appeals against the custodial sentences and the imposition of Serious Crime Prevention Orders.

The court upheld the sentences imposed on Appellant A and Appellant B as appropriate and not manifestly excessive, and rejected the claim of unjustified disparity with Defendant C’s sentence. It affirmed the necessity and proportionality of the SCPOs and the specific terms challenged by the appellants, concluding that they were justified to protect the public from future serious crime involvement.

The direct effect is that the appellants remain subject to their respective sentences and SCPOs as imposed. No new precedent was set beyond the application of established sentencing and SCPO principles to the facts of this case.