R v Kennley Mark Bailey

In sentencing for cannabis production, the court must assess all relevant features of the offender’s role. Where the facts disclose both significant-role and lesser-role features, it is wrong to select a significant-role starting point without reflecting the lesser-role elements.

The sentencing court may make an upward adjustment within the applicable category for the scale of cultivation, previous convictions and children’s exposure to the operation. It must then give proper weight to substantial personal mitigation, credit for plea and totality.

The appellant pleaded guilty in the Crown Court at Birmingham to producing, supplying and possessing Class B drugs, after police found 83 cannabis plants in two rooms at his home. He also pleaded guilty on a separate indictment to cruelty to a person under 16.

On 9 September 2022, the Crown Court imposed 24 months’ imprisonment for child cruelty and consecutive drug sentences producing an aggregate of 34 months. The appellant challenged the finding that he had played a significant role in the cannabis production, the starting point adopted, and the weight given to mitigation. The ground concerning immediate custody was not pursued.

1. The appeal was allowed in part. The court reduced the consecutive sentence for the principal drug offence from 10 months to four months. The concurrent one-month sentences remained unchanged. The aggregate sentence was therefore reduced from 34 months to 28 months.

2. It was common ground that the offending fell within category 3, although 83 plants substantially exceeded the 20 plants associated with that category. An upward adjustment was therefore justified to reflect the scale of cultivation.

3. The judge had correctly identified a significant-role feature: the appellant alone operated the cultivation and understood its scale. However, the evidence also showed lesser-role features, particularly an expectation of limited financial gain because the plants were mainly for personal use. The absence of an upstream chain did not make the operation wholly for personal use, since it included a commercial element.

4. The role straddled the significant and lesser categories. The judge erred by selecting a 16-month starting point without reflecting the lesser-role elements. A nine-month starting point was appropriate, subject to upward adjustment for the number of plants, previous convictions and the fact that children visited premises containing the operation.

5. After allowing for the appellant’s considerable personal mitigation, credit for plea and totality with the child-cruelty sentence, the proper sentence for the separate drug offending was four months’ imprisonment, consecutive to the two-year sentence for child cruelty.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and reduced the consecutive sentence for the principal drug offence to four months.
• Crown Court at Birmingham: On 9 September 2022, imposed an aggregate sentence of 34 months’ imprisonment for child cruelty and the drug offences.