Herridge, R. v

This case, whilst raising matters peculiar to itself, also poses the question as to whether, following the re-classification of cannabis as a Class C drug, that should be reflected in some reduction of sentence for the offence of cultivating cannabis where the object of such cultivation is personal use. For this reason the court reserved its judgment.

This is an appeal, with leave of the single judge, against a sentence of 12 months imprisonment imposed by His Honour Judge Ball QC on 11^th February 2005 in the Crown Court sitting at Chelmsford following a guilty plea to an offence of cultivating cannabis contrary to Section 6 of the Misuse of Drugs Act 1971. The maximum sentence for such an offence is 14 years imprisonment.

The appellant who is aged 33 has quite a bad criminal record involving previous sentences of custody. However, his last such sentence (which was an offence involving cannabis) was one of 2 months imprisonment in 1995 whereafter he has a solitary drunk and disorderly conviction. He is an habitual and heavy user of cannabis who since his arrest had taken steps to address this issue by voluntarily attending NEEDAS (a local drug service). His guilty plea was intimated at the earliest opportunity.

This offence came to light on 24^th April in an unusual manner. His landlord attended his premises with a view to collecting rent. On looking through a window he saw in a chair what he thought was a body and he notified the police. The police attended. They found no body but they did find 52 cannabis plants under cultivation. Some care and thought had clearly gone into it as they found means of ventilation, heating and extractor fans. In interview the appellant was to explain that this was his second crop, his first having wholly failed. It is not easy to estimate how much usable cannabis this crop may have yielded but it was readily accepted as being consistent with personal use.

In imposing a sentence of 12 months imprisonment the judge’s approach is criticised by Mr Kelly as being both too high and failing properly to reflect the mitigation available to the appellant. We agree. A perusal of cases like Davy [1997] 1 Crim App Rep (S) 17, Bennett [1998] 1 Crim App Rep (S)429 and Evans [2000] 1 Crim App Rep (S) 107 suggests that on a plea of guilty to this offence where the object is personal use a sentence of between 6 and 9 months imprisonment will usually be merited.

However, Mr Kelly sought to carry his argument further. He submitted that following the reclassification of cannabis as a Class C drug, the court should translate Parliamentary intention into a reduction of the tariff sentence. He recognised that following Donovan [2004] EWCA Crim 1237 and Mitchell [2004] EWCA Crim 2945 that that argument would not be available to him were he dealing with a case in which an element of supply to others was involved. By Section 284 and Schedule 28 to the Criminal Justice Act 2003 penalties for certain offences (including supply and possession with intent to supply) involving Class C drugs were increased to the levels that had originally obtained for Class B drugs. In that area Parliament clearly intended no change.

Mr Kelly argued that Parliament, however, had not increased the penalty for simple possession so that that remained at 2 years imprisonment rather than the 5 year maximum for a Class B drug. Thus he submits Parliament intended that simple possession should be regarded less seriously and that should be reflected in sentences of cultivation of cannabis where it is clear that personal use alone is intended.

Against that must be set the fact that the maximum sentence for cultivation of cannabis remains unaltered at 14 years imprisonment suggesting that Parliament did not intend any lessening in the seriousness of that offence. Again it must be recognised that the Section 6 offence covers a very wide spectrum of criminality from industrial farming for substantial commercial profit down to those who keep cannabis plants where others more conventionally keep pot plants. Clearly following the logic of Donovan and Mitchell (supra), no reductions in sentence should be made where an element of supply is involved.

What has concerned us is whether some reduction is called for where clearly personal use alone is the object so as to reflect the significant reduction in maximum penalty for simple possession of cannabis. Mr Kelly sought to persuade us that a non-custodial option should be considered. Given that a significant element of calculated defiance of the law is required to commit the Section 6 offence even on a small scale, we would expect to see such offences not only being regarded as over the custodial threshold but as ordinarily attracting a custodial sentence. The issue is the length of such sentence.

We think that there is real force in Mr Kelly’s submissions. Given the vast range of culpability that Section 6 covers, we think that a widening of the gap in sentencing between those cases where supply is an object and those where it is not in fact reflects what Parliament has sought to achieve through increased penalties prescribed in Schedule 28. In our judgment the proper sentence here to reflect both this principle and the matters particular to this case would be one of 6 months imprisonment. To that extent this appeal is allowed.