Healey & Ors, R v

A sentencing court must follow relevant Sentencing Council guidelines under section 125(1) of the Coroners and Justice Act 2009, unless the particular case makes that contrary to the interests of justice. A judge cannot disregard guidelines because of disagreement with the general sentencing level.

Drug-guideline categories operate on sliding scales. Their boxes overlap and their quantities are indicative rather than fixed thresholds. In cannabis-production cases, harm depends on actual or potential output, not simply plant numbers. Purpose-built, equipped and repeated cultivation ordinarily indicates a significant role. A court must not accept that production is solely for personal use while sentencing on an assumed prospect of supply.

Five defendants separately convicted of cultivating cannabis were sentenced together in the Crown Court at Sheffield. Each appeal challenged the length of the immediate custodial sentence imposed for a domestic but intensive cultivation operation.

The sentencing judge referred to earlier appellate guidance and stated that he would decline to follow the recently effective Sentencing Council drug-offence guideline if it prevented immediate custody. The appeals raised the proper statutory status and interpretation of that guideline, including assessment of harm, role, potential yield and future supply.

1. Disposition. The court allowed all five appeals against sentence. It substituted terms of eight months for Brearley and McGregor, six months for Healey and Taylor, and five months for Bolton.
2. Section 125(1) of the Coroners and Justice Act 2009 requires a court to follow a relevant sentencing guideline unless the interests of justice in the individual case require otherwise. That exception does not permit a sentencer to reject the guideline because the sentencer prefers a different general level of sentence. Earlier interim guidance in R v Auton [2011] EWCA Crim 76 had expressly been made subject to later general guidance from the Sentencing Council.
3. The drug guideline must be read as a whole. The pictorial categories overlap and describe graduations of seriousness, not mutually exclusive boxes. Harm and culpability are separate but related considerations. For production, plant numbers are only indicators of actual or potential output. As confirmed by R v Boakye [2012] EWCA Crim 838, they are neither thresholds nor fixed points.
4. A person who has created a dedicated, equipped and repeated cannabis-growing operation is ordinarily at the bottom of the significant-role category, rather than in the lesser-role category. A realistic prospect of circulation or supply places the offender higher within that category. Possession with intent to supply concerns an identifiable existing quantity of drug, not plants from which drugs may later be extracted.
5. Where an asserted sole-use account is improbable, the judge may invite evidence and decide whether to accept it. If it is accepted, however, the offender cannot be sentenced on a contrary finding that future supply is likely. On the accepted bases, the relevant cases fell within the applicable guideline ranges and warranted reduced sentences.

• Court of Appeal (Criminal Division): Allowed the five sentence appeals in [2012] EWCA Crim 1005 and substituted reduced custodial terms.
• Crown Court at Sheffield: Sentenced the five defendants for separate offences of cultivating cannabis. No lower-court citation was stated.