How do the new Sentencing Guidelines impact on cannabis offences – RELEASE

How do the new Sentencing Guidelines impact on cannabis offences

http://www.release.org.uk/comment/375-sentencing-guidelines-for-cannabis-offences

Copyright © 2012 Release Legal Emergency & Drugs Service Ltd. Registered charity number 801118.


Release
 124-128 City Road, London EC1V 2N

We have received a number of emails from cannabis activists asking for clarification on how the new Sentencing Guidelines will impact on cannabis cultivation and possession. Release provided detailed advice to the Council and has welcomed many of the changes in the guidelines as an improvement on the previous regime, but in relation to cannabis, there has only been a slight shift in approach.

With regards to possession of cannabis, there has been very little change from the current Magistrates Sentencing Guidelines. The starting point for sentencing remains the same, that is, a Band B fine. The sentencing range has changed, previously it was Band A fine (A is lower than a B fine) to 12 weeks custody (this covers sentencing for both small and large possession offences). The new guidelines range from discharge (more lenient than before) to 26 weeks in custody (harsher than before). If someone comes before the court in respect of possession of cannabis for medicinal purposes that would mitigate the sentence, and if there were no other factors could reduce it down from a Band B fine. However, it is still a criminal conviction resulting in a criminal record even with an absolute or conditional discharge.

In terms of cultivation and production of cannabis there does seem to have been real movement, but this is primarily due to the recent guidelines in the Court of Appeal case of R v Auton. This case was decided only last summer and provided much harsher guidelines for sentencing cannabis production cases involving yields of approximately 1 kilo. The guidelines stated that:

  • Where there is no element of supply the sentence range is likely to be between 9 – 18 months, depending on size of operation and the defendant’s personal circumstances;
  • Where there is no evidence of commercial supply for profit but there is supply to others the range is likely to be 18 months to 3 years – operation and personal circumstances again relevant;
  • Where the operation is a commercial one but falls below an industrial operation the range will be 3 to 6 years.

The new guidelines are certainly an improvement on R v Auton and sentencing will be determined through a two-step approach. The first step is to determine the role of the offender and there are three potential categories – lesser role, subordinate role or leading role. The second step is the quantity of drugs involved and there are four categories:

  • Category 4 – 9 plants (presumed yield 40gram per plant)
  • Category 3 – 28 plants (presumed yield 40 gram per plant)
  • Category 2 – operation capable of producing significant quantities for commercial use
  • Category 1 –  operation capable of producing industrial quantities for commercial use

The Court will then consider mitigating/aggravating factors.   

In relation to someone who is producing for their own purposes, or even where it is social supply, it is likely they will fall within the ‘lesser role’ category within the new guidelines. In terms of quantity 1kg (25 plants) would fall within category 3. This would lead to a sentencing starting point of a high level community order and a sentencing range of a low level community order to 26 weeks custody, again depending on mitigating and aggravating circumstances. This is definitely an improvement on Auton but there is still a risk of imprisonment especially where there is a previous conviction.

Where someone was growing a lesser quantity (9 plants) and falls within the lesser role the guidance suggests a starting point of Band C fine, with a sentencing range of a discharge through to a medium level community order.  This would then be increased/decreased through aggravating and mitigating factors.  Frankly, this is only a slight departure from current Magistrates guidelines which state that the starting point for small scale cultivation is a Band C fine and the range is Band B fine to low level community order.

So overall, whilst we are pleased that our advice has been followed to some degree and has impacted on other areas of sentencing, the general approach to cannabis offences has not shifted a huge amount, and cannabis activists should be aware that the offences remain criminal, and so can result in a criminal conviction. There is also no evidence to suggest that the police will de-prioritise the policing of cannabis cultivation.

Fine Bands

Fine A – Starting point 50% of relevant weekly income; Category range 25% – 75% of relevant weekly income 
Fine B – Starting point 100% of relevant weekly income; Category range 75% – 125% of relevant weekly income 
Fine C – Starting point 150% of relevant weekly income; Category range 125% – 175% of relevant weekly income

If anyone has any questions on the new guidelines please feel free to comment below and we will respond as soon as possible.

If anyone needs legal advice please contact the helpline on 0845 4500 215 or 020 7324 2989. 
 

Comments 

0#196 Max blunt 2012-06-01 15:21

Quoting john:

I’m slightly confused..what do they consider a proffesional grow or a repeat grow……let’s say I had between 2 and 6 plants in a tent which I would only use for personal……where would that put me in terms of sentencing….confusing

If you had six plants in flower, with no bud found and nothing cropped off the plants, that would be Cultivation. If you had six plants, but say 2 were in flower and you had two cuttings and two mothers, well that would be Production.
If it was all in a purpose built room as well, then you would most likely get a custodial.
After the ruling from the appeal court it looks like the only way to grow and not get a custodial is to use a tent with 4 plants maximum, no cuttings and no mothers and most certainly no dried bud. [ Make sure you stash it damn well, and take nothing for granted.

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0#195 dave 2012-06-01 12:25

hi john that would put you in catagory 4, lesser role. unless there were many aggrivating factors but im confident you will be in those sentencing guidlines.

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0#194 john 2012-06-01 11:23

I’m slightly confused..what do they consider a proffesional grow or a repeat grow……let’s say I had between 2 and 6 plants in a tent which I would only use for personal……where would that put me in terms of sentencing….confusing

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0#193 dave 2012-05-31 22:51

thanks guys … i will check on here from time to time to try and help anyone else that finds themselves in a similar situation

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0#192 Max blunt 2012-05-31 15:27

It’s the word ‘capable’, surely it is not the capability but the “intent & action” of the accused which can be punished. Otherwise, there exists an assumption of guilt.

Not my words I would like to add, but very well put.

I would be interested in your opinion.

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0#191 Release 2012-05-31 15:22

Thanks for that article Max. Those comments are worrying as repeated grows isn’t a criteria referred to in the guidelines. Though it seems they have had guidance from the Court of Appeal. 

In my opinion someone growing for their personal use, even with repeated grows, should still be considered as being in a lesser role.

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0#190 Max blunt 2012-05-31 15:14

@ Release.

Oh yes, I do realise that, it is an absurd situation where we have people sent to Crown Court for a few plants though. Not sure if you have seen this? http://www.sheffieldtelegraph.co.uk/news/local/fifty-cannabis-growers-convict…

Most signicantly, “One of the critical issues is going to be the issue of purpose-built rooms,” the judge told Sheffield Crown Court. 

“The public need to understand that people who set up growing areas CAPABLE OF PRODUCING REPEAT CROPS are going to be regarded by the courts as significant offenders, and they are all very likely going to go to prison – whether employed or not, a family man or not, of good character or not.”

My emphasis.

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0#189 Release 2012-05-31 15:08

Max, I agree it’s not necessarily fair, but as I said to Dave previously this is pretty normal for this sort of offence so he hasn’t been treated any differently to anyone else.

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0#188 Release 2012-05-31 15:07

That’s great Dave – sounds like a good result.

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0#187 Max blunt 2012-05-31 15:06

Hi Dave, really glad you didn’t get a custodial. I have to say though, there is nothing “fair and just” about being sent to Crown Court for a few plants.

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0#186 dave 2012-05-31 15:02

hi guys , went crown today, my barrister was brilliant five stars! he argued my case should be in lower cat 3, the judge accepted this mainly on my health plea. he nearly got me a conditional discharge! i ended up with a community order and gate way project with probation. all in all a fair and just result!

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0#185 Max blunt 2012-05-24 17:24

To be honest, if I were to be arrested for growing again, and after the treatment I got off the muppets that pass for magistrates, I would opt for Crown Court anyway.
So take heart.

Max

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0#184 Max blunt 2012-05-24 17:19

Crown Court for 16 plants is outrageous on any level.
Best wishes.

Max

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0#183 dave 2012-05-24 17:14

thanks alot mate… yes it does seem like the cps at magistrates were excessive, ive got crown on the 31st of may ill let u know what happens

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Copyright © 2012 Release Legal Emergency & Drugs Service Ltd. Registered charity number 801118.


Release
 124-128 City Road, London EC1V 2N
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