Attorney General's Reference No. 12 OF 2006

For possession of a substantial quantity of cannabis with intent to supply, the pre-existing custodial sentencing guidelines continued to apply after cannabis was reclassified as a Class C drug. An immediate custodial sentence was required where the quantity placed the offence above low-level retail supply.

A favourable pre-sentence report prepared on an erroneous understanding of the offender’s antecedents does not ordinarily make custody unfair. On an Attorney-General reference, however, the court may decline to increase an unduly lenient sentence where double jeopardy and substantial completion of unpaid work mean that custody is no longer merited.

The offender was convicted at Wood Green Crown Court of possessing 4.94 kilograms of cannabis with intent to supply and possessing a three-inch knife in a public place. The sentencing judge imposed a community punishment order requiring 200 hours of unpaid work.

The pre-sentence report had recommended a community sentence on the mistaken basis that the offender had no previous convictions. His actual convictions were old and unrelated to drugs. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central questions were whether an immediate custodial sentence was required at first instance and, if so, whether the Court of Appeal should now interfere.

1. The court granted leave, held that the sentence was unduly lenient, but declined to increase it. Possession of almost five kilograms of cannabis with intent to supply was well above the low-level retail supply at the bottom of the relevant sentencing range.

2. The court accepted that the sentencing guidance applicable when cannabis was a Class B drug remained applicable after its reclassification as a Class C drug. Parliament had retained a maximum sentence of 14 years for supply offences. Following R v Aramah (1982) 4 Cr App R(S) 407, the normal custodial bracket was one to four years. An immediate sentence of about 18 months would have been appropriate at first instance, taking account also of the knife offence.

3. The judge had placed excessive weight on the offender’s family circumstances and on the favourable pre-sentence report. A recommendation for a community sentence can raise an offender’s hopes, but it does not make a custodial sentence unfair. The error might matter if an absence of convictions made a community penalty appropriate; it did not do so here.

4. The court nevertheless exercised its discretion not to interfere. The offender had already been sentenced and permitted to remain in the community, so a later custodial sentence bore heavily by reason of double jeopardy. He had also completed 78 of the 200 hours of unpaid work. Those matters reduced any custodial term to a short period, and custody was no longer merited.

• Court of Appeal (Criminal Division): Leave was granted under section 36 of the Criminal Justice Act 1988. The court held the community sentence unduly lenient but declined, in its discretion, to substitute a custodial sentence.
• Wood Green Crown Court: On 5 January 2006, imposed a community punishment order requiring 200 hours of unpaid work for possession of cannabis with intent to supply and a concurrent 50 hours for possession of a knife.