Attorney General's Reference No. 93 OF 2005

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, a deferred sentence may be increased if it is unduly lenient. Large-scale commercial cultivation and supply of cannabis require a custodial sentence. A prompt guilty plea, good character, remorse and other personal mitigation remain material, but cannot justify a deferred community disposal where custody is required. The substituted term must reflect all mitigation and the particular double jeopardy involved in increasing a sentence on a reference.

The offender pleaded guilty at the earliest opportunity to producing cannabis and supplying cannabis. Police found 307 cannabis plants at industrial premises used for cultivation. The estimated yield and remaining cultivated material had a substantial street value. The offender also admitted having sold an earlier crop.

Bristol Crown Court deferred sentence on conditions directed to employment, physical recovery and avoiding further offending. The Attorney General referred that disposal as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issues were whether the deferred sentence was unduly lenient and, if so, the proper substituted sentence.

1. The Court granted leave and held that the deferred sentence was unduly lenient. It increased the sentence to 21 months’ imprisonment.

2. The Court had power to increase the sentence although it had been deferred. It applied R v L (Deferred Sentence); R v J [1999] 1 WLR 479 in holding that deferral did not prevent the exercise of jurisdiction under section 36 of the Criminal Justice Act 1988.

3. The offending was a commercial operation on a large scale. It involved cultivation capable of yielding about 15 kilograms of cannabis and the supply of an earlier crop. The offender’s age, previous good character, early guilty pleas, confession, remorse and compliance with the conditions of deferral were substantial mitigation.

4. Cases concerning cultivation of cannabis on a guilty plea established a range of three to five years’ imprisonment. This offending fell towards the lower end of that range and would ordinarily have attracted at least three years’ imprisonment. The Court reduced the substituted term to reflect the mitigation and the normal, but particularly important, factor of double jeopardy on an Attorney General’s reference.

5. The imprisonment term was to begin on the date of the Court’s judgment. The Court also approved postponement of the confiscation hearing.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the Court granted leave and replaced the deferred sentence with 21 months’ imprisonment: [2005] EWCA Crim 3186.
• Bristol Crown Court: On 5 August 2005, deferred sentence until 28 November 2005 on conditions concerning employment, physical recovery and further offending.
• Bristol Magistrates’ Court: The offender pleaded guilty at the earliest opportunity and was committed to the Crown Court for sentence on 27 June 2005.