Johnson, R v

In sentencing for supply of ketamine, where authority is sparse, courts should not mechanically extrapolate from sentencing ranges for other controlled drugs. Differences in classification, weight, value and the absence of a reliable correspondence between drugs make such an exercise unsafe.

The court should instead have regard to reported sentences for comparable ketamine offending so that the sentence is not out of step. No general ketamine sentencing guideline was laid down.

The appellant was convicted in the Crown Court at Dorchester of possessing ketamine with intent to supply. He had pleaded guilty to simple possession, but the jury rejected his contention that the drugs were solely for personal use. He received 18 months’ imprisonment.

Police had found 785 grams of ketamine at 86 per cent purity, equivalent to 612 grams of pure ketamine and capable of producing more than 2,600 deals. The appellant appealed against sentence, contending that the starting point was excessive for a Class C drug for which sentencing authority was limited.

The central issue was the proper sentence for a significant retail supplier of ketamine in light of the limited comparable authority.

1. Appeal allowed. The sentence of 18 months’ imprisonment was excessive. A sentence of 12 months’ imprisonment was substituted.

2. The appellant was properly to be treated as a significant retailer. The quantity and purity of the ketamine, and its potential retail value, made it unnecessary to determine precisely how much he would have retained for personal use.

3. The sentencing judge had little available guidance. It was unsafe to calculate a sentence for ketamine by mathematical reference to authorities concerning cannabis or amphetamine. Those drugs were differently classified, and there was no reliable correspondence between their weights or values and those of ketamine.

4. The court instead took broad guidance from R v Yucel [2007] EWCA Crim 3122 and R v Milan Kosanovic [2008] EWCA Crim 103. They concerned substantially larger quantities and more serious wholesale dealing, but indicated the appropriate sentencing level for ketamine. The sentence in this case had to be consistent with, or at least not out of step with, those decisions.

5. The appellant’s previous convictions provided little aggravation, as only one was a drug offence. Having regard to the comparable ketamine cases and the particular circumstances, the proper sentence was 12 months. The court declined to lay down general sentencing guidelines, noting that further guidance was anticipated from the Sentencing Advisory Panel.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 12 months’ imprisonment for 18 months: [2009] EWCA Crim 2745.

• Crown Court at Dorchester: The appellant was convicted of possessing ketamine with intent to supply and sentenced to 18 months’ imprisonment.