The aggravating circumstances in this case are: (i) the Dial-A-Dope circumstances; (ii) the fact that the drug purported to be trafficked was cocaine; but the most aggravating is the fact (iii) that this offence took place while Mr. Basque was on an undertaking with respect to virtually the same offence.

As in the case of aggravating circumstances, the systems of some Member States provide for a general list of mitigating circumstances - Spain is an example - whereas others do not provide for a list and the court weighs up the facts that might be taken to constitute mitigating circumstances - for example Belgium.

As regards the level of the penalty, as in the case of aggravating circumstances, some Member States provide for a penalty in excess of the standard maximum - Austria, Belgium, France, Italy, Luxembourg, Sweden and Portugal - whereas others do not allow the statutory maximum penalty to be exceeded - for example, Finland, Ireland and Spain.

The Framework Decision provides a list of aggravating circumstances, which does not preclude the recognition of other circumstances under national law:

It finds that the percentage increases or reductions adopted on account of aggravating or mitigating circumstances must be applied to the basic amount of the fine, determined by reference to the gravity and duration of the infringement, and not to the amount of an increase previously applied in respect of the duration of the infringement or to the figure resulting from the first increase or reduction adopted to reflect an aggravating or a mitigating circumstance.

A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child, or (iii) evi ...[+++]dence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.