Possession of a controlled drug is far less likely to result in a prison sentence compared to something like taking drugs into a music festival such as Creamfields.
Any court is required to apply the drugs sentencing guidelines published by the Sentencing Council. For the purpose of this article we are talking about possession of drugs only.
Possession of a controlled drug contrary to the S.5(2) Misuse of Drugs Act 1971
- Class A : Maximum: 7 years’ custody with an offence range of between : Fine – 51 weeks’ custody
- Class B: Maximum: 5 years’ custody with an offence range of between : Discharge – 26 weeks’ custody
- Class C: Maximum: 2 years’ custody with an offence range of between : Discharge – Community order
Identifying the category in the Drugs Sentencing Guidelines
Applying the drugs sentencing guidelines the court should identify the offence category based on the class of drug involved:
- Category 1 – Class A drug
- Category 2 – Class B drug
- Category 3 – Class C drug
Starting points in the Drugs Sentencing Guidelines
The court should use the table below to identify the corresponding starting point. It applies to all offenders irrespective of plea or previous convictions. A court will then consider further adjustment within the category range for aggravating or mitigating features.
The drugs sentencing guidelines suggest that a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence where:
- The defendant is dependent on or has a propensity to misuse drugs and;
- there is sufficient prospect of success.
|Offence category||Starting point (applicable to all offenders)||Category range (applicable to all offenders)|
|Category 1 ( class A )||Band C fine||Band A fine – 51 weeks’ custody|
|Category 2 (class B)||Band B fine||Discharge – 26 weeks’ custody|
|Category 3 (class C)||Band A fine||Discharge – medium level community order|
A non-exhaustive list of additional factual elements are included in the drugs sentencing guidelines. These are set out in the table below. They cover the context of the offence and factors relating to the offender. The court Identifies whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, possession of drugs in prison is likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
The custody threshold
The court will consider, where appropriate, the custody threshold as follows:
- has the custody threshold been passed?
- if so, is it unavoidable that a custodial sentence be imposed?
- if so, can that sentence be suspended?
- Where appropriate, the court should also consider the community threshold as follows:
- has the community threshold been passed?
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant or recent convictions
- Good character and/or exemplary conduct
- Offender is using cannabis to help with a diagnosed medical condition
- Determination and/or demonstration of steps having been taken to address addiction or offending behaviour
- Serious medical conditions requiring urgent, intensive or long-term treatment
- Isolated incident
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability
- Sole or primary carer for dependent relatives
Factors increasing seriousness
Statutory aggravating factors:
- Previous convictions, having regard to:
- a) nature of the offence to which conviction relates and relevance to current offence; and
- b) time elapsed since conviction
- Offence committed on bail
Other aggravating factors include:
- Possession of drug in prison
- Presence of others, especially children and/or non-users
- Possession of drug in a school or licensed premises
- Failure to comply with current court orders
- Offence committed on licence
- Attempts to conceal or dispose of evidence, where not charged separately
- Charged as importation of a very small amount
- Established evidence of community impact
Rose & Dunn are specialist criminal defence and motoring law solicitors and higher courts advocates. We can be contacted at any time of day or night. If you need emergency police station assistance contact us using any of the methods below and we will get back to you as soon as possible.
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