New Sentencing Guidelines for Drugs Offences in England & Wales

24 January 2012

The Sentencing Council has produced new sentencing guidelines for drugs offences, effective in courts in England and Wales from 27-2-12.  Full details can be found on the Sentencing Council Website.

Drug Trafficking Offences

The guidelines are based on the category of offence, the role of the offender, and on aggravating or mitigating factors.  Trafficking offences include Import, Supply, Possession with Intent and Production.  All carry similar penalties although there are some minor differences.

Categories of Offence

The categories of offence are determined by the quantity of drugs Category 1 is for the most serious offences involving large scale import or supply down to Category 4 for the lowest level supply offences.

Note that street dealing would be classed as Cat 3 as would be supply in prison

Role of Offender

Sentencing for each category of offence depends on whether the court (Judge) decides that the defendant is playing a leading, significant or lesser role in the offence.

LEADING role:

•  directing or organising buying and selling (or production) on a  commercial scale;

•  substantial links to, and influence on, others in a chain;

•  close links to original source;

•  expectation of substantial financial gain;

•  uses business as cover;

•  abuses a position of trust or responsibility, for example  prison employee, medical professional.

SIGNIFICANT role:

•  operational or management function within a chain;

•  involves others in the operation whether by pressure,  influence, intimidation or reward;

•  motivated by financial or other advantage, whether or  not operating alone;

•  some awareness and understanding of scale of  operation;

•  supply, other than by a person in a position of  responsibility, to a prisoner for gain without coercion.

LESSER role:

•  performs a limited function under direction;

•  engaged by pressure, coercion, intimidation;

•  involvement through naivety/exploitation;

•  no influence on those above in a chain;

•  very little, if any, awareness or understanding of the  scale of operation;

•  if own operation, absence of any financial gain, for  example joint purchase for no profit, or sharing minimal  quantity between peers on non-commercial basis.

•  if own operation (import/production), solely for own use (considering reasonableness of account in all the circumstances)

Guidelines for Sentencing in Trafficking Offences

* Min MCO for import

Notes

HCO/MCO/LCO – High/Medium/Low level Community Orders

Fine A – 50%, Fine B 100%, Fine C 150% of weekly income

Aggravating & Mitigating Factors

Aggravating and mitigating factors will detemine where in the range of penalties an offence will be deemed to have fallen. Other factors are taken into account after aggravating or mitigating factors in determining the final sentence, such as any time spent remanded in custody.

Aggravating Factors

Previous convictions, having regard to:

(a) nature of the offence to which conviction relates and relevance to current offence; and

(b) time elapsed since conviction

Offender used or permitted a person under 18 to deliver a controlled drug to a third person

Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when school in use as such or at a time between one hour before and one hour after they are to be used

Offence committed on bail

Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18

Exposure of others to more than usual danger, for example drugs cut with harmful substances

Attempts to conceal or dispose of evidence, where not charged separately

Presence of others, especially children and/or non-users

Presence of weapon, where not charged separately

Charged as importation of a very small amount

High purity

Failure to comply with current court orders

Offence committed on licence

Established evidence of community impact

Mitigating Factors

Involvement due to pressure, intimidation or coercion  falling short of duress, except where already taken into  account

Supply only of drug to which offender addicted

Mistaken belief of the offender regarding the type of drug, taking into account the reasonableness of such belief in all the circumstances

Isolated incident

Low purity

No previous convictions or no relevant or recent convictions

Offender’s vulnerability was exploited

Remorse

Good character and/or exemplary conduct

Determination and/or demonstration of steps having been taken to address addiction or offending behaviour

Serious medical conditions requiring urgent, intensive or long-term treatment

Age and/or lack of maturity where it affects the responsibility of the offender

Mental disorder or learning disability

Sole or primary carer for dependent relatives

Other Factors

Any assistance given to the prosecution (e.g. information, Queens evidence)

Reduction for a guilty plea – max 20% for class A, up to 30% for other cases, discount will depend on how early the guilty plea was tendered,

Proportionality & totality (where a number of offences to be sentenced)

Time spent on remand (normally counts double)

The court must give reasons for the sentence.

In trafficking offences financial investigations and confiscation proceeding will commonly follow a conviction or guilty plea.

Cannabis Cultivation/Production

The guidelines impose, for the first time, thresholds in the number of cannabis plants and how they affect the category of offence.  Note that the guidelines to not (currently) differentiate between mature plants and immature plants or cuttings.  The presumed yields are based on an average of 40g per plant and thus demonstrating yields lower than this may be used to reduce the category.

Categories of Offence

The category of a cultivation offence will depend on the scale of production

Category 1 - Operation capable of producing industrial quantities for commercial use

Category 2 – Operation capable of producing significant quantities for commercial use

Category 3 – 10-28x plants (Yield 1120g)

Category 4 – Up to 9x plants (yield 360g)

The role of offenders (whether leading, significant or lesser) is according to the same general guidelines for trafficking offences.

Cannabis (Class B) Production Sentencing Guidelines

Simple Possession of Drugs

Possession offences are treated slightly differently with the starting point dependent on the class of drug and with a wide range of sentencing options, but with no custody option for Class C drug possession, the starting point in each case being a fine.  Bona fide medicinal use is now officially recognised as a mitigating factor in sentencing.

Sentencing Guidelines - Possession

Specific Aggravating & Mitigating Factors

The following factors are specific to possession offences, the general aggravating and mitigating factors outlined above still apply.

Specific Aggravating Factors

Possession of drug in Prison

Possession of drug in a school or licensed premises

Failure to comply with current court orders

Charged as importation of very small amount

Specific Mitigating Factors

Offender is using cannabis to help with a diagnosed medical condition

Comment

To a large extent the new sentencing guidelines formalise existing practices, however the courts have been increasing sentences for small-scale cultivators with custodial sentences the norm, the guidelines restore to Judges the option to impose community sentences for non-commercial scale growers (e.g. heavy users or those involved in small-scale social supply).

There is a potential issue with the number of plants which will require clarification via case law.  Thresholds of 9x plants and 28x plants would, if they refer to all the plants within a system rather than mature plants or those plants capable of being brought to maturity, potentially restrict the capacity of user-growers to achieve self-sufficiency.

9x mature plants could generate around 1oz per week over a cycle, sufficient for the consumption of all but the heaviest users in the UK, however if the total includes immature plants the production capacity could be halved.  A continuous system would thus be limited to 1x mother plant, 4x cuttings and 4x mature plants, sufficient to sustain only moderate levels of use over a cycle.

28x plants, if including immature plants, would in a continous system be limted to 10-12 flowering plants, 12-16 cuttings or immature plants and possibly 2x mother plants.  This could well represent a personal-scale cultivation for a typical heavy user.

By limiting the number of plants rather than the available space or wattage of lighting, growers will be incentivised to grow fewer but larger plants to maximise the potential yield.

The bona-fide medicinal use of cannabis provided a defence to cannabis offences including possession and cultivation until overturned by a House of Lords decision in 2005.  Since then courts have generally accepted medical necessity as a mitigating factor in sentencing, however the guidelines formalise this approach.  The test would appear to be that the defendant suffers from a diagnosed condition, although there is no formal definition of which conditions are relevant or not.

Much case law already exists to define the roles of offenders, which has been formalised in the guidelines.  Much new case law is likely to develop around the guidelines and interpretations as the guidelines are tested in the courts.

Matthew J Atha

Director – IDMU Ltd

24^th January 2012