In court
| Published date | 01 March 2017 |
| DOI | 10.1177/0264550516687822 |
| Date | 01 March 2017 |
| Subject Matter | In court |
In court
In court
Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform
sentencing and early release.
General sentencing issues
Prevalence as aggravating factor
As part of an operation targeting drug dealing in the Thanet area of Kent, under-
cover police officers purchased small quantities of heroin and crack cocaine on four
occasions from B., aged 20, who was then subject of a suspended sentence order
(six months YOI, suspended for two years), imposed five months beforehand for
possession of both those Class A drugs. The Prosecution did not claim that he was a
major figure in the activities targeted by the police operation or that he was one of
those responsible for bringing the drugs to that area from London. Following B.’s
guilty pleas to three counts of supplying Class A drugs and one count of being
concerned in the supply of a Class A drug, he was sentenced to a total of 58 months’
YOI detention. In respect of street dealers the definitive drugs guideline (Sentencing
Council, 2012) identifies a starting point of 41
=
2years with a range of 31
=
2to 7 years
custody, thus indicating in B.’s case a starting point towards the upper end of the
available range, prior to credit for his guilty plea.
On B.’s appeal against sentence the Court of Appeal recognized that this had not
been a single instance of supply – he had offended over a two-week period, selling
more than one type of Class A drug. However, the Crown Court judge had com-
mented that his criminality had been ‘even more serious because it took place within
the context’ of a ‘desperately serious’ drug problem in the East Kent area. He had
evidently increased the starting point in this case on grounds of ‘prevalence’.
Though the guideline Overarching Principles: Seriousness (Sentencing Council,
2004) specifies that, ordinarily, ‘the seriousness of an individual case should be
judged on its own dimensions of harm and culpability rather than as part of a
collective social harm’, the guideline acknowledges that prevalence can be a valid
consideration where ‘exceptional local circumstances’ apply. However, para. 1.39
makes clear:
Probation Journal
2017, Vol. 64(1) 71–87
ªThe Author(s) 2017
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DOI: 10.1177/0264550516687822
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The Journal of Community and Criminal Justice
It is essential that sentencers both have supporting evidence from an external source
(for example the local Criminal Justice Board) to justify claims that a particular crime is
prevalent in their area and are satisfied that there is a compelling need to treat the
offence more seriously than elsewhere. ...The key factor in determining whether
sentencing levels should be enhanced in response to prevalence will be the level of
harm being caused in the locality. Enhanced sentences should be exceptional and in
response to exceptional circumstances.
In light of this guidance the Appeal Court observed:
offenders should normally be sentenced by straightforward application of the guide-
lines without aggravation for the fact that their activity contributes to a harmful social
effect upon a neighbourhood or community. It is not open to the judge to increase
sentence for prevalence in ordinary circumstances or in response to his own personal
view that there is ‘too much of this sort of thing going on in this area’.
For a sentencer to depart from this general rule there must first be evidence
provided to the court ‘by a responsible body or by a senior police officer’. Secondly,
that evidence must be made available to the prosecution and defence in good time
‘so that meaningful representations about that material can be made’. Even if such
material is provided, a judge will only be entitled to treat prevalence as an aggra-
vating factor if he or she is satisfied that: (a) the level of harm caused in a particular
locality is significantly higher than that caused elsewhere; (b) the circumstances can
properly be described as exceptional and (c) it is just and proportionate to increase
sentence for such a factor in the particular case before him or her. ‘A court should be
hesitant’ before aggravating a sentence by reason of prevalence. Judges will be
only too well aware of the types of harm which are caused by drug dealing and ‘will
not be assisted by statements of the obvious’. Only if the evidence placed before the
court demonstrates a level of harm which clearly exceeds the well understood
consequences of drug dealing by a significant margin should courts be prepared
to reflect this in sentencing. When judges are so persuaded, they must clearly state
this in passing sentence.
In B.’s case the judge had received a witness statement from the senior investi-
gating officer regarding the nature and effect of organized drug dealing networks
within that area, ‘referring not only to the harm caused by drug dealing on a sig-
nificant scale but also to associated violence, intimidation and targeting of the
vulnerable’. However, that was not enough to justify any increase in sentence. This
sentencing exercise:
reveals the need for clarity if the issue of prevalence is to play a part in the sentencing
exercise. If the Crown intends to invite the court to consider that matter, it must expressly
say so at the hearing, identifying the materials upon which it relies as evidence and
referring the judge to the relevant guideline. If a judge of his or her own motion is
contemplating prevalence as a factor, he or she should clearly identify that as a matter
to be addressed in submissions to the court. Any sentence imposed should then identify
72 Probation Journal 64(1)
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