R v Jake Kiernan & Ors [2026] EWCA Crim 492

[2026] EWCA Crim 492
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 19 March 2026
The Strand
London
WC2A 2LL
ON APPEAL FROM THE CROWN COURT AT CAERNARFON
(HER HONOUR JUDGE NICOLA JONES) [60CD0081225]
Case No 2026/00189/A4, 2026/00190/A4
2026/00191/A4, 2026/00192/A4, 2026/00193/A4
2026/00194/A4, 2026/00195/A4, 2026/00196 & 2026/00197/A4
B e f o r e:
THE VICE PRESIDENT OF THE COUT OF APPEAL CRIMINAL DIVISION
(Lord Justice Edis)
MR JUSTICE GOOSE
HIS HONOUR JUDGE CONRAD KC
____________________
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_____________________
J U D G M E N T
Between
Jake Kiernan & OrsDefendantRCrown
[1]This is an application by His Majesty's Solicitor General for leave to refer nine sentences to this court under section 36 of the Criminal Justice Act 1988. The Solicitor General submits that those sentences were unduly lenient and should be reviewed and increased on that ground by this court. We give leave.[2]We start by thanking all counsel for their helpful submissions which were in each case presented in a succinct and attractive way which enabled what might have been a very lengthy hearing to be concluded well within this morning.

Introduction

[3]The offenders were part of an organised crime group, of which Jake Kiernan (the first offender) was the leader. This group sourced and supplied cocaine, ketamine and cannabis into an area of North Wales between July and December 2024. It was also engaged in the cultivation of cannabis for distribution through its network. At the conclusion of its activity when arrests and searches took place, 1.352 kilograms of cocaine at 81 to 83 per cent purity, 1.618 kilograms of ketamine and approximately 1 kilogram of cannabis were seized. 13 cannabis plants under cultivation were recovered from one site.[4]It was a sophisticated operation. It had a structure which facilitated the transport of drugs into North Wales. It then involved the storage of drugs in "safe houses" where they could be processed by being broken down into smaller quantities for onward sale through a retail distribution network. The money collected as a result of those sales needed to be laundered and payment for drugs from sellers higher up the chain of distribution also needed to be transported. This involved processing very large sums of cash, some of which were recovered during the course of the surveillance of the operation, which took place in the autumn of 2024. Further sums were recovered at its conclusion.[5]The offenders were sentenced by Her Honour Judge Nicola Jones in the Crown Court at Caernarfon. It was a complicated and difficult sentencing exercise. We shall have to identify some areas where we part company with the judge's reasoning, but we would wish to begin by emphasising the careful way in which she approached her task and the fact that almost all of her decision making is unchallenged by anyone in this Reference.[6]The assessment of credit for the guilty pleas which were entered by all of the nine offenders was itself a difficult task. That is because different people pleaded guilty at different times; some pleaded guilty to new and alternative counts. They claimed credit at the full rate on the basis that it was reasonable for them to delay their guilty pleas until the offences to which they finally pleaded guilty had appeared on the indictment. All of those factors had to be assessed by the judge. No criticism is made by anybody of any of her findings in that regard. It is therefore not necessary for us to set out all the procedural history which underpinned those decisions and which the judge was required to evaluate. It will suffice for us to set out at the start of our judgment what offences each offender was sentenced for, what the sentence was, and the amount of credit each received for his or her guilty pleas.[7]In the course of that review we shall also indicate the category of each conspiracy for the purposes of the guideline assessment of harm and the role assigned to each offender by the judge for the same purpose in relation to culpability. Except in one respect, no criticism is made of the judge's assessment of the categories of these conspiracies for the purposes of assessing harm. There is also only one minor criticism advanced on behalf of one offender of her assessment of the roles played. Again, we record that most of the judge's decision making in those respects is not challenged.[8]It is convenient to identify each offender in that way and in those respects, but it will assist in summarising the nature of this case if we observe now that actually the offenders fell into two different categories.[9]First, there were those who were sentenced for conspiracy to supply Class A drugs. The judge decided that the conspiracy to supply Class A drugs was a category 1 conspiracy for guideline purposes. She found that it was at the very lower end of that category. That is the respect in which there is criticism of her categorisation of this conspiracy. One offender, Melanie Kiernan was involved with Class A drugs, but was not convicted of conspiracy to supply cocaine. She pleaded guilty to a different offence in that regard, as we shall record. We shall refer to these offenders as "the Class A offenders".[10]Second, there were those who were sentenced only for conspiracy to supply Class B drugs (cannabis or ketamine) or for cultivating cannabis. We shall call these "the Class B offenders". All of the Class B conspiracies were assessed by the judge as category 2 in terms of the harm caused because of the quantities trafficked. All of the conspirators who fell to be dealt with only for Class B conspiracies were assessed as having had significant roles in therm.[11]Some of the Class A offenders also committed Class B offences. They received concurrent terms for those offences, and one of the criticisms advanced on behalf of the Solicitor General is that that resulted in an inadequate weighting of the sentence for the conspiracy to supply Class A drugs, which was treated as the lead offence. In effect, submits the Solicitor General, the judge assessed the sentence for the Class A conspiracy and allowed the offenders who had also pleaded guilty to Class B conspiracies to get away scot free with those significant and serious crimes.[12]The real areas of contention are: 1. It is said that the Class A offenders who received immediate custodial sentences received sentences which were too short, both because the Class A conspiracy was not properly categorised and because the Class B offences did not add to that sentence, as we have just explained. That complaint relates to the first three Class A offenders. 2. It is said that Danielle Steele should have been sentenced to four years' imprisonment, rather than a community order, for a Class A offence. It is said that the judge wrongly determined that four years' imprisonment was a "moderate sentence" for the purposes of the sentencing guidelines. Our attention is drawn to a decision of this court in R v White [2024] EWCA Crim 1390; [2025] 1 Cr App R(S) 28. In that decision this court accepted that a term of three years' imprisonment was for the purposes of the relevant guideline a "moderate sentence". Essentially, the Solicitor General submits that that should mark the upper level of the range of sentences which for this purpose can properly be described as moderate. 3. The Class B only offenders all received suspended sentence orders, although the judge categorised them all as playing a significant role in those offences. That attracts a range of two and a half to five years' imprisonment, and a starting point of four years. In each case the judge found herself able to suspend the sentence which she imposed because she had made a substantial reduction to the term of it to reflect time spent on remand. The Solicitor General submits that that approach is wrong in principle and contrary to the express terms of a passage in the relevant guideline to which we shall turn shortly.[13]The same error in relation to accounting for time spent on remand is said to have been made also in the case of Melanie Kiernan, who was a Class A offender as well as a Class B offender and who received a suspended sentence.[14]We shall now turn to identify what occurred in relation to each of the offenders before the judge.

The Class A Offenders

[15]Jake Kiernan (aged 33), whose role was categorised as leading, was given credit of one third for his guilty plea: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 1 Conspiracy to Supply a Class A Drug (Cocaine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 8 years 7 months' imprisonment Life 2 Conspiracy to Supply a Class B Drug (Ketamine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 4 years' imprisonment Concurrent 14 years' imprisonment 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 4 years' imprisonment Concurrent 14 years' imprisonment 4 Conspiracy to Produce a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 4 years' imprisonment Concurrent 14 years' imprisonment Total Sentence: 8 years 7 months' imprisonment[16]Jamie Steele (aged 33), whose role was categorised as a high end significant role, was given credit of one third for his guilty plea: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 1 Conspiracy to Supply a Class A Drug (Cocaine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 6 years' imprisonment Life 2 Conspiracy to Supply a Class B Drug (Ketamine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 2 years 8 months' imprisonment Concurrent 14 years' imprisonment 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 2 years 8 months' imprisonment Concurrent 14 years' imprisonment Total Sentence: 6 years' imprisonment[17]Nicholas Reynolds (aged 54), whose role was categorised as significant, was given credit for his guilty plea of ten per cent in relation to count 1; 25 per cent for count 3; and one third for count 4: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 1 Conspiracy to Supply a Class A Drug (Cocaine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 7 years 2 months' imprisonment Life 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 20 months' imprisonment Concurrent 14 years' imprisonment 4 Conspiracy to Produce a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 22 months' imprisonment Concurrent 14 years' imprisonment Total Sentence: 7 years 2 months' imprisonment[18]Melanie Kiernan (aged 50), whose role was categorised as significant, was given credit for her guilty plea of 25 per cent for count 3 and one third for count 5: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 18 months' imprisonment suspended for 18 months 14 years' imprisonment 5 Permitting Premises to be Used for the Supply of Class A Drugs (Cocaine), contrary to s8 Misuse of Drugs Act 1971 Pleaded Guilty 12 months' imprisonment suspended for 18 months Concurrent 14 years' imprisonment Total Sentence: 18 months imprisonment suspended for 18 months To include 6 months EM Curfew between 10 pm and 6 am and 10 RAR days[19]Danielle Steele (aged 30), whose role was categorised as lesser, was given credit for her guilty plea of 20 per cent: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 1 Conspiracy to Supply a Class A Drug (Cocaine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 3 year Community Order Life 2 Conspiracy to Supply a Class B Drug (Ketamine), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 19 month Community Order Concurrent 14 years' imprisonment Total Sentence: 3 year Community Order To include 1 year GPS monitoring and 15 RAR days[20]We pause the narrative at this point in order immediately to draw attention to an oddity in the case. Melanie Kiernan and Danielle Steele are both alleged to have made their homes available to the Class A drug conspiracy for the purposes of the supply of Class A drugs. In relation to Melanie Kiernan, that resulted in the acceptance of a guilty plea to an offence of allowing premises to be used for the supply of Class A drugs, contrary to section 8 of the Misuse of Drugs Act 1971. That attracts a sentencing guideline which sets out a very much lower tariff for sentencing than that which applies in the guideline for offences of supplying Class A drugs.[21]Danielle Steele's conduct in relation to her home was reflected in an indictment alleging conspiracy to supply Class A drugs, namely cocaine, to which she entered a guilty plea. It is rightly pointed out on behalf of the Solicitor General that her conduct went somewhat beyond making her home available, because she also moved drugs. However, in substance the nature of the offending by these two women was very similar so far as the cocaine was concerned, but the way in which it was indicted was different.

The Class B Offenders

[22]Ryan Potts (aged 31), whose role was characterised as significant, was given credit for his guilty plea of 20 per cent: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 2 years' imprisonment suspended for 2 years N/A 14 years' imprisonment Total Sentence: 2 years imprisonment suspended for 2 years To include 12 months EM Curfew from 9 pm to 6 am and 20 RAR days[23]Clint Woodcock (aged 45), whose role was characterised as significant, was given credit for his guilty plea of 20 per cent: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 2 years' imprisonment suspended for 2 years N/A 14 years' imprisonment Total Sentence: 2 years imprisonment suspended for 2 years To include 12 months EM Curfew from 9 pm to 6 am and 15 RAR days[24]Charlie Thorley (aged 26), whose role was characterised as significant role, was given credit for his guilty plea of ten per cent: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 3 Conspiracy to Supply a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977) Pleaded Guilty 21 months' imprisonment suspended for 2 years N/A 14 years' imprisonment Total Sentence: 21 months' imprisonment suspended for 2 years To include 150 hours Unpaid Work and 10 RAR days[25]James Kiernan (aged 48), whose role was categorised as significant, was given credit for his guilty plea of one third: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum 4 Conspiracy to Produce a Class B Drug (Cannabis), contrary to s1(1) Criminal Law Act 1977 Pleaded Guilty 20 months' imprisonment suspended for 24 months Concurrent 14 years' imprisonment Total Sentence: 20 months' imprisonment suspended for 24 months To include 10 RAR days

The Facts

[26]The evidence relied upon to prove the counts of conspiracy was set out in the Reference in very considerable detail. We make no criticism of that, but it is unnecessary to burden this judgment in that way, given the conclusions that the judge reached which are not controversial.[27]It is very clear that Jake Kiernan was the head of these very substantial drug conspiracies. His criminal business was successful and lucrative. It led to the acquisition of very substantial sums of money. He recruited significant numbers of people to support him in the exercise. It involved a significant and sophisticated business model. In particular we should point out that he operated a business in Rhyl called The Fuel Bar. That was a smoothie and takeaway shop, which did in fact sell smoothies and other things which could be taken away, but its principal role was as a front to launder substantial amounts of money which had been received by way of cash as a result of the drug business. Those illegitimate earnings were funnelled through this business in order to make them seem legitimate.[28]Jamie Steele was Jake Kiernan's deputy. He was responsible for the movement of drugs and cash, and managing all the many people who participated in or interacted with the illegal drug businesses. He arranged for bulk quantities of drugs to be imported into North Wales and then stored somewhere safe. He oversaw the splitting of the drugs into smaller quantities for onward supply and, it is thought, their cutting with other agents to improve profitability.[29]Nicholas Reynolds was in a relationship with Melanie Kiernan and they shared a home together. We have already said something about how that home was used in the course of the conspiracies. His role went beyond the mere provision of his house. It is to be recorded that of the two stash houses we have mentioned, it was the house of Melanie Kiernan and Nicholas Reynolds which was used far more extensively in the conspiracy than was that of Danielle Steele. A great deal of drug business went on there. Nicholas Reynolds was very substantially involved in it and in the management of the cocaine conspiracy at a lower level than Jamie Steele, but nevertheless at a significant level.[30]We have said all that we need to say for the moment about the activity of Melanie Kiernan and Danielle Steele.[31]The Class B offenders were all involved in the supply of cannabis in significant quantities on behalf of Jake Kiernan. James Kiernan was involved in the production of cannabis.[32]The evidence revealed familiar observations of transactions which are seen in cases of this kind. There was covert travelling with drugs and money which was observed by the police on multiple occasions. It is unnecessary to set out the details of all that.[33]However, we should identify the evidence about the circumstances in which Danielle Steele became involved in making her premises available, as she did, for the supply of cocaine and ketamine. She is the sister of Jamie Steele, who was a senior figure within the conspiracies. In the course of the investigation text messages were recovered which showed that she was a single mother who was struggling financially. She sent messages to her brother complaining that her electricity was about to be cut off. She has a son called [name], who is now 6 years old and at the material time was somewhat younger. As a result of those messages, Jamie Steele responded by offering modest amounts of money if she would store drugs at her house for him. She agreed to do that and did do it; but it is clear from messages also recovered that she was very reluctant. On 26 May 2024 she messaged:
"Feel a dick now. I honestly thought u ment everything I will hold some 7 more times to pay for it and then I not doing it after that."
On 30 June 2024 she said: 34. "Don't want to do all this after all this is gone getting to much. Don't want people I don't know where I live and got [her son’s name] to think about sorry."[34]At about the same time, Danielle Steele sent this message to another member of the family:
"No I won't tell him not to tell absolutely no one. Or I'm not doing it anymore I'm only doing it for family." "
I'm not doing it after this weekend. Getting to risky now. I got [her son’s name] to think about."

The Aggravating and Mitigating Features

[35]The Solicitor General identified the following aggravating feature which are present in the case to a different extent as between different offenders:(1) The number of drugs which were supplied. That is reflected in the different counts to which some of the offenders pleaded guilty.(2) The previous convictions: some offenders have significant previous convictions; others are of good character.(3) Some offenders were on licence or on a community order at the time of the offending.(4) The presence of others, in particular where the nature of the criminal conduct involved, however charged, constituted the permitting of premises to be used for the supply of drugs. In both of the stache houses which we have mentioned, children were living there and were present.[36]The Solicitor General has identified the following mitigating factors which are once again present in some cases, not in others, and to a greater or lesser extent:(1) Good character.(2) Addiction to the drug supplied.(3) Remorse.(4) Health.(5) Other personal mitigation.

Previous Convictions

[37]Jake Kiernan had a very significant criminal record. At the time of sentencing he had 31 convictions for 49 offences going back to 2006. They include offences of dishonesty, an offence of robbery, an offence of possession of an offensive weapon, offences of possession of various drugs, and an offence of wounding. In 2017 he was convicted of possession of a handgun, and an offence of possession of a class B drug with intent to supply it. He received a sentence totalling five years and ten months' imprisonment on that occasion. In 2022, for an offence of conspiracy to supply a Class B drug, he was sentenced to 32 months' imprisonment.[38]Jamie Steele had a conviction for affray from 2013, which was of no real significance in this case.[39]Nicholas Reynolds had four convictions for four offences, including a conviction for cultivation of cannabis dating back to 2012, but in view of its age that also was of limited relevance.[40]Melanie Kiernan had a conviction for permitting the production or attempted production on her premises of cannabis. Like her partner's conviction in that regard, it dated back to 2012 and had drifted into the history of events, rather than occupying a prominent position when decisions about sentencing came to be made. It was not, however, wholly irrelevant. She had other convictions, including a conviction for producing a Class C drug in 2019.[41]Neither Ryan Potts nor Danielle Steele had criminal convictions. Ryan Potts had received a caution; Danielle Steele was of good character.[42]Clint Woodcock had four convictions for 28 offences, including five offences of suppling Class A drugs in 2001 for which he received a sentence of five years' imprisonment. There was a further conviction in 2007 for possession with intent to supply Class A drugs, for which he received a sentence of seven years' imprisonment. He had received a further sentence of imprisonment in 2013 for possession of a bladed article in a public place. These convictions were old, but by no means irrelevant. The imposition of substantial terms of imprisonment of that kind is always likely to have relevance in any future sentencing exercise.[43]Charlie Thorley had seven convictions for 11 offences, going back into the distant past. Most were for different kinds of offending. Most relevantly in August 2023 he was convicted of breaching a community order. That resulted in the original community order being revoked and replaced by a new community order which was still in force at the time when this offending began and which continued to be in force throughout the conspiracy period. It was imposed for offences which were dealt with in the magistrates' court. They had been committed in December 2022. We know little about them, but it is clear that they were not offences of the utmost gravity.[44]James Kernan was of good character.

Some matters of personal mitgation

[45]There was material before the judge which we have read. It spoke positively of each of the offenders. There were also pre-sentence reports on each of them. Their authors suggested in the cases where it was conceivably relevant ways in which the offender concerned could be managed or dealt with in the community.[46]In relation to Danielle Steele, there was material before the judge which confirmed that she suffered from anxiety and, significantly, from a serious condition of epilepsy. This imposes a serious restriction on her ability to live a normal life and explains, in part, why she was particularly vulnerable to exploitation by her brother. She had written a letter to the judge expressing her remorse and her concern for her son. At the point when she wrote that letter she had been remanded in custody for a significant period of time and the boy had been cared for by other members of her family.[47]Clint Woodcock also put forward a medical condition which he said was partly to blame for his chronic use of cannabis. The Judge's Sentencing Approach[48]The judge's sentencing remarks were long, careful and detailed, as they should have been. We make no criticism whatever of the way in which she expressed herself. She found that she was not persuaded that the quantity of cocaine supplied was as high as the prosecution said that it was. In making that finding, she was clearly influenced by the amount which had been recovered by the police from Danielle Steele's home when it was searched at the end of the conspiracy period. That quantity was 1.3 kilograms, as we have already recorded. As a result of that, the judge said that the size of the Class A conspiracy for guideline purposes was either at the top of category 2 or "just tipping into category 1". In the result, she approached the case on the basis that it was at the bottom end of category 1. The lower end of the category 1 range is 12 years' imprisonment, and the upper end of the category 2 range is 13 years' imprisonment. Accordingly, her categorisation led to a sentence of that order.[49]We have already identified the way in which the judge categorised roles and the size of the conspiracies for the Class B drugs.[50]In sentencing Jake Kiernan, the judge recorded that he was entitled to full credit. Balancing the aggravating and the mitigating factors, she arrived at a sentence for count 1 (the Class A conspiracy of 13 years' imprisonment. There is perhaps an error in the way that she explained that in that she referred to a starting point of ten years' imprisonment. However, she also referred to the appropriate category range being 12 to 16 years' imprisonment for a category 1 conspiracy of this kind. It appears likely that she took a sentence which was reduced below the category starting point and then increased it to reflect aggravating factors and also to reflect the other Class B conspiracies to which Jake Kiernan had pleaded guilty. We have set out the result so far as those are concerned in the table above. The result of all that, after giving full credit for the early guilty pleas, was a sentence on the lead offence (count 1) of eight years and seven months' imprisonment.[51]When sentencing Jamie Steele, the judge adverted to the appropriate sentence range having regard to her finding that his role was a significant one. That means that the starting point in the guideline is ten years' imprisonment, and the range is nine to 12 years. The judge identified the aggravating factors, including dealing in multiple drugs. She adverted to such mitigation as there was, including his acknowledged addiction to cocaine. There was also remorse, and she identified significant progress towards rehabilitation after the end of the conspiracy period. For those reasons the judge arrived at a sentence of nine years' imprisonment, which she reduced by one third to reflect the early guilty pleas, which produced a sentence of six years' imprisonment. The sentences for the Class B drugs were ordered to run concurrently with it.[52]The sentence on Nicholas Reynolds was arrived at by taking the starting point in the same range that had applied in the case of Jamie Steele and reducing it from ten years' imprisonment to reflect the mitigation to a sentence of eight years' imprisonment, against which the judge allowed ten per cent for the guilty plea, which resulted in the sentence of seven years and two months' imprisonment. Once again, the sentences for the Class B offences were ordered to run concurrently.[53]Melanie Kiernan was sentenced to a suspended sentence of imprisonment, with some requirements attached. The judge arrived at that sentence in her case by taking a starting point of four years' imprisonment, which is the appropriate starting point in the guideline for a category 2 significant role offence. The judge identified mitigating factors, including the fact that she had employment and that she had rehabilitated herself to a significant extent while on remand. In her case the judge made a very substantial reduction from that starting point of four years' imprisonment to reflect that mitigation to arrive at a sentence of two years' imprisonment, from which she then deducted 25 per cent credit for the guilty pleas. That was a sentence which could be and was suspended on the terms set out above. A concurrent sentence for the offence of allowing her premises to be used for the supply of Class A drugs was imposed, also suspended on the same terms. This was the first of the cases which we have mentioned which was affected by the judge's decision to reduce her sentence by the amount of time spent on remand so as to arrive at a sentence which could lawfully be suspended. Other reductions were also made to reflect personal mitigation and the like; but that reduction for time on remand featured in this case.[54]In the same way, the Class B offenders received the same reduction, with the same result, on the same grounds. Of the Class B offenders it is necessary only to refer specifically for our purposes to Charlie Thorley. That is because his sentence was imposed at a time when he was in breach of a community order, which the judge referred to specifically as an aggravating factor in his case. For reasons which will become apparent it is unnecessary to say anything further about the way in which the sentences were imposed in relation to the Class B offenders.[55]We do need to say more about the way in which the judge approached the sentence of Danielle Steele, which was different in principle from the way in which she arrived at suspended sentences in the other cases where she did that. Danielle Steele, it will be recalled, was sentenced for conspiracy to supply cocaine and ketamine. The most serious of the offences to be sentenced (the Class A conspiracy) was taken as the lead offence, and a concurrent term was imposed for the other offence.[56]The judge was satisfied, as we have said, that Danielle Steele undertook a lesser role in the Class A conspiracy. But that meant that she fell to be sentenced within a category range of six to nine yeas' imprisonment, and that the starting point in the guideline for her was one of seven years' imprisonment. The judge identified as an aggravating factor the fact that there were two different drugs being dealt with. She then moved to the question of mitigation. She said:
"You have your trauma, which you sustained, and it is mentioned in the pre-sentence report, I will not repeat it here, your mental health difficulties, your physical ailments, including epilepsy, your lack of previous convictions and your genuine remorse and rehabilitation …" 58. "
I note that you have served the equivalent of 20 months in custody, but I still cannot get this sentence down below that whereby it would be suspended, so what I will do is apply the case of R v White [mentioned above] and adopt those principles, in particular with regard to your outstanding attempts and success at rehabilitation and also the impact upon your six year old child of your continued, of your significant period of remand."[57]That process resulted in the sentence imposed by the judge. As we have said, that was a different process from that which was applied in the case of any of the other offenders and it resulted in the non-custodial disposal.[58]We summarised the submissions of the Solicitor General at the start of this judgment, and it is unnecessary to set them out any further at this point.

Discussion

[59]The first issue which we need to resolve relates to the categorisation of the Class A conspiracy to supply cocaine, which was alleged in count 1 of the indictment against some of these offenders. The judge was very much influenced by the amount of cocaine which was seized by the police at the end of the conspiracy period. In our judgment, she clearly fell into error in that regard. The amount of cocaine which was recovered by the police reflected the amount of cocaine which the conspiracy had failed to sell. It did not say anything about the amount of cocaine which the conspiracy had in fact sold. The conspiracy had been on foot for some months and involved highly significant and sophisticated methods of sourcing, funding, storing and supplying drugs, and it is wholly unlikely that in the course of all of that activity not one gram of cocaine had been supplied.[60]We are sure, to the criminal standard, that the judge adopted an unrealistic approach to an operation of this kind. There was evidence in terms of discarded wrappers which were said to have contained quantities of cocaine. That evidence may not in itself have been conclusive, but in association with all the other evidence about the activities of this group the overwhelming inference is that during the life of the conspiracy, the conspiracy was able to supply substantially greater amounts of cocaine than were recovered by the police at its end. There is no basis on which it could safely be concluded that the amount of cocaine supplied was substantially more than 5 kilograms. Nor is there any sound basis for concluding that the amount supplied was to any significant degree very much less than that. Accordingly, in our judgment, a fair approach to this conspiracy to supply cocaine would have been to deal with it as a case falling within category 1, attracting the category 1 starting point for the relevant role, rather than one which was either substantially increased within the lower range on the grounds of amount, or reduced within the higher range on that ground.[61]It appears to us that the judge ought, therefore, in the cases of each of the three offenders on whom she imposed sentences of immediate imprisonment, to have taken the starting point for the relevant role for that category. In relation to Jake Kiernan, who had the leading role in the whole conspiracy, that was a starting point of 14 years' imprisonment. It is clear from what we have said about his previous criminal record that a significant increase within the category range for the offence charged in count 1 was required on that ground. It was also, in our judgment, an error to impose concurrent sentences for the Class B conspiracies, having reduced, as we have said, by too much the sentence for the count 1 conspiracy. We accept the submission of the Solicitor General that such an approach means that that very significant criminal activity involving large quantities of cannabis and ketamine was simply not punished at all.[62]In our judgment that was an error. We therefore have concluded that the sentence imposed on Jake Kiernan was unduly lenient and that it requires an increase. The shortest sentence which we can impose in its place in respect of him on count 1 is based on a sentence after trial of 16 years' imprisonment. He is entitled to full discount for his plea of guilty, and that sentence therefore takes effect as a sentence of ten years and eight months' imprisonment. The other sentences for the Class B conspiracies continue to run concurrently and are unaffected. The change which we make in his case is by quashing the judge's sentence on count 1 and replacing it with that we have just announced.[63]Many judges, in our view, would have imposed a sentence which was significantly in excess of that level, and they would not have been wrong to do so. Some judges may have made findings of fact on the available evidence about the quantity of Class A drugs sold which would have been to the disadvantage of the Class A offenders, and or Jake Kiernan in particular. We, however, consider that a sentence of 16 years' imprisonment, in all the circumstances of this case, is within the reasonable range of sentences open to sentencing judges for such cases. Accordingly, in the case of Jake Kiernan we impose the sentence of ten years and eight months' imprisonment after credit for the guilty plea.[64]We also conclude that the judge's sentence in respect of Jamie Steele was unduly lenient, and for the same reasons. He was a trusted second lieutenant with an important managerial role in this serious conspiracy. The starting point for that in the relevant category range of the guideline is ten years' imprisonment. There was no reason why that should be reduced. On the contrary, it required an increase to reflect his role in the Class B conspiracies. We consider that it would have been appropriate in his case to increase the sentence to one of 12 years' imprisonment, before allowing a reduction for mitigation, which we acknowledge, to 11 years. He also is entitled to full credit of one third against that sentence, which produces a sentence of seven years and four months' imprisonment.[65]In exactly the same way, we consider that the sentence on Nicholas Reynolds was also unduly lenient. In his case the proper starting point was one of ten years' imprisonment. We consider that in his case the aggravating and mitigating features balance themselves out and that the sentence before discount for the guilty plea should have been ten years. The discount for the guilty plea to which he was entitled was ten per cent, because he delayed his guilty plea for so long. Accordingly, we quash his sentence on count 1 and substitute a sentence of nine years' imprisonment. The other sentences remain unaffected.[66]We now turn to those cases where the judge adopted an approach which involved reducing the notional sentence, before making any discount for a guilty plea, by deducting the time spent on remand. We consider that such an approach was clearly erroneous.[67]The relevant guideline on the imposition of sentences has this to say under the heading "Time remanded in custody or on qualifying curfew before imposing a suspended sentence order":
"The court imposing a suspended sentence order should determine the length of the suspended custodial term without reference to any time spent in custody on remand or on a qualifying curfew. When explaining the effect of the sentence, the court should indicate that the time remanded in custody or on a qualifying curfew would be deducted in the event of breach and activation of that sentence. If an offender has spent a significant proportion of the custodial term to be suspended on remand or on a qualifying curfew, the court must consider whether it would be appropriate to impose a suspended sentence order at all, as there would be limited effect of the custodial term in the case of activation. Depending upon the circumstances of the case, immediate custody (which may result in immediate release due to time served) or a community order or discharge may be appropriate, particularly where there is a good prospect of rehabilitation."
[68]We consider that the judge made a clear error in failing to follow the guidance in that guideline and in adopting her own bespoke approach to discounting time spent on remand. We make it entirely clear that this should not be done in future and that it was an error of principle which would entitled this court to interfere with those sentences.[69]The judge did not consider the approach approved in R v White in any of these cases. She did not find that any of them was in any way exceptional. In our judgment, it is clear that in the case of each of these offenders she should have imposed immediate custodial sentences. Because of the different allowances to be made for time spent on remand and time spent on qualifying curfew, that would have resulted in their release from custody at different points in the future following the sentencing hearing. Some would have been released quite soon after the hearing; others would have had to serve longer.[70]However, we are not the sentencing court. We are exercising a discretion which is designed to achieve justice in cases where sentences have been imposed which are far too low. We have reflected on these cases, and in particular on the cases of Melanie Kiernan and Charlie Thorley. Melanie Kiernan is a Class A offender, albeit one charged in the particular way we have described above. Charlie Thorley was in breach of a community order throughout the conspiracy period. These factors mean that in our judgment they were extremely fortunate to be sentenced in the way that they were.[71]In the cases of Ryan Potts, Clint Woodcock and James Kiernan, the end result, notwithstanding Woodcock's previous convictions, was a result which might have been achieved in other ways. Certainly the difference between the sentences which ought to have been imposed and the practical impact of the sentence which the judge did imposed is relatively modest. They were all entitled to substantial reductions for time spent on remand, which would be made automatically and did not require attention by the judge. Their release points would have been in the relatively near future.[72]For all of these reasons, in the cases of Melanie Kiernan, Charlie Thorley, Ryan Potts, Clint Woodcock and James Kiernan we have concluded that we should say that the judge's approach was wrong in principle, that it was lenient, and that sentences of imprisonment should have been imposed. However, in the exercise of our discretion, in the particular circumstances of this case we decline to adjust any of those sentences. Accordingly, those sentences will remain as imposed by the judge.[73]That leaves only the case of Danielle Steele, which we should deal with on its own because it raises a different question. The judge decided to impose a community order in place of a custodial sentence of four years. She applied the relevant Guideline on Imposition which says that such a course is available in place of "a moderate length custodial sentence". The guideline continues that a sentence in excess of two years' custody may fall within that category.[74]The Guideline on Imposition contains this:- “As set out in certain offence specific guidelines, where there is a sufficient prospect of rehabilitation, a community order with a specific requirement can be a proper alternative to a short or moderate length custodial sentence. Short or moderate sentences are not defined, and may exceed two years’ custody.”[75]In R v. White, Lord Justice William Davis, giving he judgment of the court, said at [31] and [32]:- 31 We agree with the Solicitor General that the sentencing exercise in this case did not involve the analysis of the issues and an approach which was right in principle. We asked Miss Pope what then were we to do. She agreed what we had to do was to conduct the sentencing exercise properly. We agree with her that the eventual sentence should have been at or around three years' imprisonment i.e. to be applied to the lead offence. 32 But that is not the end of the matter. In each of the relevant guidelines the rubric to which we have already referred appears:
‘A community order can be a proper alternative to a short or moderate length custodial sentence.’
A sentence of three years' imprisonment is a moderate length custodial sentence.”[76]The submission of the Solicitor General is that a sentence of four years' imprisonment is simply too long to be described as "moderate" and that therefore the judge made an error of principle in proceeding in the way that she did.[77]We do not agree. The expression "moderate length custodial sentence" is no doubt deliberately not defined. Nor does the text define the offence types for which this approach may be suitable. We would suggest that the approach is most likely to be suitable where it is specifically referred to in the relevant offence specific guideline. It is unlikely to be suitable, for example, in cases involving serious sexual or violent offending which result in a term of two or more years' imprisonment, where significant harm has been caused to victims. White itself was a case of sexual offending, however. We would observe that the statutory framework surrounding the ability to suspend sentences – as it is at least in force for now – reflects Parliament's clear intention that in the overwhelming majority of cases where sentences in excess of two years' custody are imposed, they will be imposed immediately; otherwise, there would be a statutory power to suspend them.[78]We therefore conclude that it is reasonable to approach the guideline and the decision in R v White on the basis that before adopting that approach the court will wish to see that there are exceptionally high prospects of rehabilitation and exceptional mitigation.[79]We would find, along with the judge, that those factors were present in the case of Danielle Steele. We have set out above her reluctance to become involved in this conspiracy, and the fact that she did so only at the invitation of her brother at a time when she was in acute financial need. He exploited that need. We have referred also to her personal vulnerability, serious ill-health and to her caring responsibilities for her 6 year old child.[80]The principles in relation to sentencing those who have such care responsibilities were explained by this court in R v Petherick [2012] EWCA Crim 2214; [2013] 1 Cr App R(S) 116. Those principles apply in full to this case. The importance, where it is possible, of avoiding damage to the children of criminal defendants being sentenced cannot be overstated. They are blameless and their future is one of the factors a sentencing court must take into account. Where sentences of immediate imprisonment are unavoidable, particularly where the length of those sentences is required to be very significant, the interests of the children affected count for far less, because arrangements must necessarily be made for them to be cared for by others during their carer's term of imprisonment.[81]For the reasons we have indicated, Danielle Steele's was a case where significant weight should be given to the interests of her child. This, together with the other important matters we have mentioned, leads us to approve in her case the approach that was taken by the sentencing judge in avoiding immediate imprisonment. Those matters include the way in which Melanie Kiernan’s case was dealt with, see [20]-[21] above.

Result

[82]Accordingly, for those reasons the Solicitor General's application for leave in each case is granted. In the cases of each offender on whom an immediate custodial sentence was imposed by the judge, we have quashed the sentence she imposed on count 1 and replaced it with the sentences we have already announced.[83]In the case of Danielle Steele, we have expressly approved the sentence and determined that it is not unduly lenient, and that we would not interfere with it on that ground.[84]In the cases of the other offenders, we have concluded that their sentences were wrong in principle, that they ought not to have been assessed in the way that they were, but that in the exercise of our discretion we will not interfere to change them. ___________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________