Thomas, R v

In sentencing for possession of a Class A drug with intent to supply, the court should give effect to Parliament’s classification. It should not treat one Class A drug as less serious than another merely because its prevalence, addictive quality, or recorded consequences are said to differ.

The quantity held and the intended distribution remain important. Supplying drugs to friends, including on a small retail scale, is a serious offence and ordinarily warrants an immediate custodial sentence. A defendant’s good character, mental-health difficulties and other personal mitigation may reduce sentence, but do not make a properly assessed custodial sentence wrong in principle.

The appellant was convicted at Bristol Crown Court of possessing dried magic mushrooms, containing psilocybin, with intent to supply. He received two years’ imprisonment and appealed against sentence with leave of the Single Judge.

He had taken 73 self-sealing bags containing about 140 grams of dried mushrooms to the Glastonbury Festival. Although he asserted personal use, the jury rejected that account. The sentencing court found that he intended to sell drugs and had taken steps to avoid detection.

On appeal, he contended that custody was not justified, that magic mushrooms should be treated less seriously than other Class A drugs, that their unusual legal status reduced culpability, and that insufficient weight had been given to his good character, circumstances and depression.

1. Appeal dismissed. The two-year sentence was proper and already reflected the available mitigation.

2. The court rejected the contention that dried magic mushrooms should be sentenced differently from other Class A drugs. Although fresh mushrooms were said not to be unlawful unless deliberately dried or otherwise prepared, the appellant admitted that he had picked and dried these mushrooms himself. The alleged unusual legal status therefore did not reduce his culpability.

3. Parliament had classified the substance as Class A. Following R v Martinez (1984) 6 Cr App R(S) 364, the court held that no sentencing distinction should be drawn between different Class A drugs. Arguments based on limited prevalence, lack of evidence of addiction, or an asserted absence of deaths did not justify a different approach.

4. The court assessed seriousness principally by quantity and intended distribution, rather than market value. The appellant intended both to give mushrooms to friends and to sell some to meet the cost of his festival ticket. That was comparable to small-scale retail supply.

5. The authorities concerning LSD, R v Bennett (1981) 3 Cr App R(S) 68 and R v Virgin (1983) 5 Cr App R(S) 148, confirmed that facilitating drug use by supplying others is very serious and that a supplier must expect a substantial prison sentence. The Recorder had properly taken account of the appellant’s depression, previous good character and testimonials when imposing the sentence.

• Court of Appeal (Criminal Division) — the appeal against sentence was dismissed: [2004] EWCA Crim 3092.

• Crown Court at Bristol — the appellant was convicted on 21 July 2004 and, on 19 August 2004, sentenced to two years’ imprisonment for possession of a Class A drug with intent to supply.