Advice to the Sentencing Guidelines Council : sentencing for drug offences

2010·4.6 MB·English

by  Great Britain. Sentencing Advisory Panel

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Advisory Panel
ADVICE TO THE SENTENCING GUIDELINES COUNCIL
Sentencing for Drug Offences
The Panel's Advice to the Court of Appeal
Environmental Offences March 2000
Offensive Weapons Offences May 2000
Importation and Possession of Opium June 2000
Racially Aggravated Offences August 2000
Handling Stolen Goods March 2001
Extended Sentences November 2001
Minimum Terms in Murder Cases April 2002
Domestic Burglary May 2002
Rape May 2002
Offences involving Child Pornography August 2002
Causing Death by Dangerous Driving February 2003
Alcohol and Tobacco Smuggling July 2003
The Panel's published Advice to the Sentencing Guidelines Council
Robbery May 2004
Reduction in Sentence for a Guilty Plea September 2004
New Sentences: Criminal Justice Act 2003 September 2004
Manslaughter by Reason of Provocation May 2005
Allocation Guidelines February 2006
Custodial Sentences of less than 12 Months March 2006
Domestic Violence April 2006
Sexual Offences Act 2003 June 2006
Reduction in Sentence for a Guilty Plea January 2007
Sentencing for Bail Act Offences May 2007
Sentencing for Assault and Other Offences Against the Person June 2007
Driving Offences - Causing Death by Driving January 2008
Sentencing for Offences of Theft and Dishonesty March 2008
Sentencing for Theft from a Shop March 2008
Sentencing for Breach of an Anti-Social Behaviour Order May 2008
Sentencing for Fraud Offences February 2009
Sentencing Principles - Youths June 2009
Sentencing for Corporate Manslaughter and
Health and Safety Offences Involving Death October 2009
Overarching Principles of Sentencing March 2010
Offences Taken Into Consideration March 2010
Sentencing for Domestic Burglary March 2010
ane of the above are available from the Sentencing Guidelines Secretariat
(see inside back cover for contact details)
th tN
FOREWORD BY THE CHAIRMAN
This advice to the Sentencing Guidelines Council makes proposals in relation to the sentencing of the most
commonly sentenced drug offences. It considers those offences which derive from conduct intended to
bring illicit drugs into circulation (including importation, production and supply) as well as those relating to
possession and use. |
The harm that is caused by the use of illicit drugs is well documented; it may result in harm to the individual
users but it also harms society more widely, both through the consequential effects of dependency or use on
those close to the user and through the effects of organised crime that are closely associated with the drug
market.
As is clear from the 2009 World Drug Report issued by the United Nations Office on Drugs and Crime (see the
Appendix to this advice), the creation, distribution and use of illegal drugs is world wide in its reach; the harms
that are caused cannot be minimised by sentencing of those convicted alone but requires a far more extensive
response. Nonetheless, the sentencing of offenders is important both as a reflection of public concern and
as a response to illegal acts that are knowingly committed. There was support for the approach that, where
appropriate, use of the orders that remove assets from offenders was likely to be more effective than custodial
sentences by themselves when dealing with those with a significant involvement in the creation or distribution
of illicit drugs. The Panel has recommended that more research is required to demonstrate how such orders
can most effectively be used; it will also be important to disseminate more extensively information concerning
those effects.
In its Consultation Paper, the Panel sought to explore ways in which it is possible to distinguish between
different types of offender based on the extent to which they are involved in the offending conduct, and
then to examine the extent to which those differences are relevant to the determination of the appropriate
sentence. In particular, the Panel was aware that especial concern was felt about those who were used to bring
drugs into the country who came from situations of poverty or need and whose naivety had been exploited by
those higher in the supply chain. A section of the Consultation Paper explored the proper approach in these
circumstances and the advice recommends how a court should proceed when sentencing such an offender.
The Panel received a high number of responses to its consultation and, as always, has considered each response
carefully. We are extremely grateful to all who have assisted in our deliberations.
abusortt.
Professor Andrew Ashworth
Chairman of the Sentencing Advisory Panel
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SENTENCING FOR DRUG OFFENCES
THE SENTENCING ADVISORY PANEL'S ADVICE TO THE SENTENCING GUIDELINES COUNCIL
INTRODUCTION were only 319 sentences recorded in 2007).
Home Office data records 36 seizures of opium
1. Following a request from the Sentencing in 2006/07 and the FSS is aware of 23 seizures
Guidelines Council, the Sentencing Advisory in 2008; in both cases, most quantities are
Panel has produced advice on a range of issues small. However, opium has been included
related to the sentencing of drug offences. in this consultation on the basis that the
judgment in Mashaollahwiil l be superseded
2. The Misuse of Drugs Act 1971 (MDA 1971)
by the Council's definitive guideline.
is the main piece of legislation creating
offences relating to controlled drugs; this In May 2008, the Council published revised
advice covers those drug offences which Magistrates’ Court Sentencing Guidelines
are sentenced frequently or result in either (MCSG) which include guidelines for the
a Significant number of custodial sentences more common drug offences sentenced
or lengthy custodial sentences, namely in a magistrates’ court; these have been
production, importation and exportation, incorporated into the Panel's proposals.
supply or offering to supply, possession with
intent to supply and possession. The Panel The Panel's proposals apply to adult offenders
also consulted in relation to the offence of only; separate legislative provisions and
permitting premises to be used for a drug- sentencing principles apply to young
related activity, which, although not falling offenders, now set out in the definitive Council
guideline Overarching Principles: Sentencing
within those criteria, is closely associated with
offences of supply and use. Youths.
3. The Council and Panel have considered
sentencing for drug offences previously.
In 2000, the Court of Appeal asked the Panel
to produce advice on sentencing offences
involving opium: existing guidelines based on
weight and intended primarily for cocaine and
heroin offences were thought inappropriate
as opium had a lower street value. The Panel's
advice! was adopted by the Court of Appeal
in its judgment in Mashaollahi,? which
maintained comparisons based on weight
equivalencies, but with street value and purity
being secondary factors. The number of opium
offences sentenced each year continues to be
small (opium offences are recorded within the
wider category ‘other class A’ for which there
' Importation and Possession of Opium - Advice to the Court of
Appeal: 3M ay 2000, p.1, www.sentencing-guidelines.gov.uk
2 [2001] 1 Cr App R (S) 300, [2000] EWCA Crim 52
1. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES
CONTENTS
The advice is structured as follows:
Section 1: The Sentencing Framework p.3-10
Seriousness p.3-6
Aggravating and mitigating factors p.6-10
Aggravating factors p.7-6
Mitigating factors p.8-9
Offender mitigation p.10
Section 2: The Offences p.11-12
Section 3: Sentencing drug offences p.13-16
Sentencing trends p.13
Ancillary orders p.14-16
Section 4: Key determinants of seriousness p.17-23
Quantity/Scale or extent of operation p.17-18
The offender's role p.18-20
Drug couriers p.20-22
Other factors p.22-23
Section 5: The Panel's Proposals p.24-37
Importation and Exportation, Supply or Offering to supply and p.26—29
Possession with intent to supply
Class A 0.28
Classes B and C p.29
Production of a controlled drug (including Cultivation of cannabis) p.31-33
Class A p.32
Classes B and C Dice
Permitting premises to be used p.34-35
Possession of a controlled drug p.36-37
Class A pio!
Classes B and C p.37
Annex A: Summary of Recommendations 0.38
Annex B: Extract from Overarching Principles: Seriousness p.39-40
Annex C: Meaning of ‘Range’, ‘Starting point’ and ‘First Time Offender’ p.41-42
Annex D: Community orders, Extract from MagistCrouart tSeentsenc’in g Guidelines p.43
Annex E: Proposals for inclusion in the MagistCrouart tSeentsenc’in g Guidelines p.44-52
Annex F: Details of the Consultation p.53-54
Appendix: Approach of other jurisdictions to drug offending p.55-56
2. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES
SECTION 1: THE SENTENCING was in a position of trust.’ For drug offences,
FRAMEWORK although the primary motivation for most
offenders will be economic, individuals
Seriousness involved in the illicit drugs market almost
always Know that they are acting illegally.
6. The primary consideration when sentencing is
Those most culpable will be involved in
the seriousness of the offending behaviour, in
bringing illegal drugs into the market, such
accordance with the Criminal Justice Act 2003
as producers and traffickers and suppliers
(the Act). When assessing offence seriousness,
of drugs who are primarily motivated by
the court must consider the offender's
financial gain. The level of culpability will be
culpability in committing the offence and any
determined by factors such as the amount
harm that the offence caused, was intended to
of drugs involved, the extent to which the
cause, or might foreseeably have caused.°
offender understood the true nature of the
drugs involved, the motivation for committing
7. The Sentencing Guidelines Council's guideline
the offence and the offender's exact role in the
on the general concept of seriousness -
Supply chain.
Overarching Principles: Seriousness - guides
sentencers on how to determine whether
Aggravating and mitigating factors relevant to
the respective sentencing thresholds have
the level of culpability are discussed more fully
been crossed.* The guideline provides that
in paragraphs 26-35 and 36-40 below.
harm must always bej udged in the light
of culpability and that the precise level of Harm
culpability will be determined by factors 10. The harm associated with drug offences is
such as motivation,°® which is a key feature in different in nature and wider in dimension
relation to the commission of drug offences. from that caused by other serious offences.
Illegal drugs are generally supplied to
Culpability
individuals who choose to use them rather
8. The Council guideline® sets out four levels
than as a result of being compelled to do so.
of culpability, the highest of which is an
Some users may suffer no ill effects; however,
intention to do the act(s) necessary to commit individual users risk actual physical harm
the offence. Nonetheless, the guideline states
(which might amount to illness or death),
that the precise level of culpability will vary
and/or dependency (which might lead to
according to factors such as the offender's
mental or physical illness). Secondary harm
motivation, whether the offence was planned caused includes the impact on the families of
or spontaneous and whether the offender
users and on the wider community,’ not least
through the commission of acquisitive offences
wo Criminal Justice Act 2003, s.143(1) in order to fund the use of illegal drugs.
> published on 16 December 2004; the guideline has been
reviewed by the Panel, a consultation paper published
(July 2008) and the Panel's advice sent to the Council
(published March 2010): all documents can be found at ” ibid., para. 1.17
www.sentencing-guidelines.gov.uk
8 Nutt, D. et al., Development of a rational scale to assess
on ibid., para. 1.17 the harm of drugs of potential misuse, The Lancet, vol. 369
a ibid., para. 1.7 24 March 2007; www.thelancet.com
3. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES
A number of respondents commented on the three classes. Any differentiation within a
the complexity inherent in a comparison of class will only arise where the quantity of drug
sentencing levels for drug offences and other is used as the basis for starting points (see the
forms of serious offending behaviour given the guideline for importation and exportation etc
different type and extent of harm attributed on pages 26-29).
to drug offences. The Panel considers that
Purposes of sentencing
those differences and the broader harms
13 In determining sentence, sentencers must have
caused by drug offences are recognised and
regard to the five purposes of sentencing set
reflected in its proposals for sentencing which
out in section 142(1) of the Criminal Justice
are consistent with the relative severity of the
Act 2003:
offending behaviour.
the punishment of offenders:
Parliament has established a classification
the reduction of crime (including its reduction
system with the intention that those drugs
by deterrence):
within the same class are considered to be of
similar levels of harmfulness; those in class A the reform and rehabilitation of offenders;
are considered to be more harmful than those
the protection of the public; and
in class B, and those in class B more harmful
than those in class C. An independent body, the making of reparation by offenders to
the Advisory Council on the Misuse of Drugs, persons affected by their offence.
provides expert advice on the allocation of
The Act does not prescribe the relative
drugs to each class; this advice is provided
importance of these purposes, nor how the
to Ministers who make the final decision and
differing priorities should be balanced. The
who take into account a wider range of factors
court will therefore determine which purposes
than those on which the Council can advise.
are most relevant In any individual case by
TSE This classification has been the subject reference to the particular facts of the case
of extensive public debate. A number of and the circumstances of the offender.
respondents commented on the system and
In relation to drug offenders, as with other
were critical of it, suggesting that it is flawed
offences, one key outcome the court might
as the classification of a drug is not wholly
wish to achieve is punishmenfto r involvement
associated with its harms and asserting that
in an offence that has been committed
decisions have been made on the strength of
intentionally and which causes social harm.
factors unrelated to harm, including public
The court will wish to take into account
opinion and political concerns.
whether an offender was motivated by the
Given the statutory framework, the Panel has potential for (sometimes significant) financial
concluded that it would be inappropriate for gain.
sentencing guidelines to distinguish between
Where the offending behaviour was triggered
drugs within each class. Accordingly, the Panel
by an addiction, the court may decide on
has affirmed that the proper approach is to
a sentence aimed primarily at the reform
link starting points and sentencing ranges to
4. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES
and rehabilitation of the offender, with a individual(s) sentenced and of others who may
view to reducing the risk of reoffending. be considering committing similar offences.
A range of drug interventions is available The degree, however, to which sentences have
in both custodial and community-based the capacity to deter will depend both on
settings. Whilst there is no evidence available the motivation for the offending and on the
that allows reliable comparisons of the potential offender's awareness of the likely
effectiveness of different interventions or sanction. Research suggests that potential
identification of those offenders who would offenders are more likely to be deterred by
benefit most from different programmes, there the perceived risk of being apprehended and
is evidence that interventions that encourage convicted than by the sentence that is likely to
engagement with treatment can help reduce be imposed."
drug use and offending. Maximising the use
21. Responses on this point were complex and,
and effectiveness of community sentences
in the absence of evidence to substantiate
is likely to be more appropriate than
the effectiveness of the current approach
imprisonment for drug dependent offenders
and the additional deterrent effect of lengthy
who are convicted of less serious acquisitive
crimes or drug possession offences.® custodial sentences, the views expressed
demonstrated a degree of uncertainty. Whilst
19. Deterrence has for many years been there was general agreement that substantial
considered one of the main purposes in sentences were needed for the more serious
sentencing drug offences, particularly the offences, there was also considerable support
more serious offences such as importation for the view that, overall, deterrence has been
and exportation, taking priority over other given too great a priority among the purposes
purposes of sentencing. One of the statutory of sentencing for drug offences and the
purposes of sentencing" is the reduction of approach of increasing the length of already
crime (including its reduction by deterrence} long custodial sentences solely for the purpose
and the Panel sought views as to whether, for of increasing deterrence was not supported.”
serious drug offences where financial gain is Some respondents expressed concern that
the main motivation, the current approach any lessening of severity of sentencing would
is sustained by the belief that long custodial risk increasing drug offending in England and
sentences are necessary solely for the Wales since the response to offending would
purposes of deterrence. be perceived as being more lenient than in
other countries. The Panel found that available
20. Those who support that approach assert
information, particularly that relating to
that deterrent sentencing has the potential
to influence the behaviour both of the
"’ Making Punishments Work:A Review of the Sentencing
Framework for England and Wales (2001), Appendix 6
1 nN in its report Drugs and the law (2000), the Police Foundation
° a separate study - The Drug interventions programme (DIP): Independent Inquiry found that the maximum penalties
addressing drug use and offending through ‘Tough Choices’, for trafficking offences in UK legislation were among
Skodbo et al., (2007) (www.homeoffice.gov.uk/rds) - found the most severe in Europe. It recommended a scaling
that the overall volume of offending by a cohort of 7,727 down of penalties to ones that were credible and not
individuals was 26% lower following DIP identification disproportionate, which would still enable courts to pass
'© Criminal Justice Act 2003, s.142 severe sentences for offences at the top end of seriousness
5. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES
European countries (see the Appendix at pages of a custodial sentence beyond that which
55-56), indicated a wide variation in offence is justified to meet any other purposes of
definition, maximum penalties and use of sentencing. The Panel's provisional sentencing
actions outside of the criminal justice system. proposals were based on an assessment
Having reviewed the pattern of offending in of offence seriousness that recognises
England and Wales and the relationship of the wider social harms resulting from this
that pattern to the changes that have taken form of offending behaviour, but does not
place in the severity of sentencing, the Panel increase sentence lengths on the grounds of
has concluded that it is very unlikely that deterrence, relying instead on the prospect of
altering the approach in the way proposed confiscation (and other similar orders) to have
in its Consultation Paper would lead to any the desired additional deterrent effect. See
significant change in the perception of the discussion concerning confiscation orders at
seriousness with which drug offences are paragraphs 64-67 below).
sentenced in England and Wales.
24. There was support for the Panel's emphasis
22: The profits that can be made from drug on confiscation and other orders, although
offences are enormous and, where such this was limited on the grounds that there
large sums of money are involved, the Panel are many offences for which no significant
suggested that the fear of financial reprisal order could be made and, in some cases,
through asset recovery measures may be there is a significant lapse of time between
of more concern to offenders Involved in sentencing for the offence(s) and an order
the more serious forms of offending than being made; there were also concerns that
the potential for a somewhat longer loss of the orders available had not been used or
liberty, especially as confiscation orders can enforced effectively and consistently. There
target not only the proceeds of crime but also was general agreement with the sentencing
other assets. The relatively recent ‘serious levels proposed by the Panel.
crime prevention order’ may also come to be
Aggravating and Mitigating Factors
viewed as a severe sanction (see discussion
at paragraph 70 below). In comparison with Bese As well as factors that are determinants
the sanctions available when guideline cases of the seriousness of a drug offence (and,
were decided, ancillary orders such as the therefore, will affect the selection of both
confiscation order now play a much more starting point and sentencing range), there
significant role in the sentencing of drug will be aggravating and mitigating factors that
offences. There is no evidence that adding influence the position of the offence within
to the length of already lengthy custodial the range. The Seriousness guideline’? sets out
sentences contributes to crime reduction to a a generic list of aggravating and mitigating
greater degree than other available sanctions, factors that may apply to an offence (see
such as confiscation and asset recovery. Annex B). The Panel has also identified some
additional factors that are specific to drug
2553 Respondents were invited to consider
offences which are summarised below.
whether a confiscation order might be a more
effective deterrent than increasing the length
'S Overarching Principles: Seriousness, published on
16 December 2004; www.sentencing-guidelines.gov.uk
6. ADVICE TO THE SENTENCING GUIDELINES COUNCIL: SENTENCING FOR DRUG OFFENCES