2. Production of a controlled drug

Misuse of Drugs Act 1971, s.4(2)(a) or (b)
Effective from: 27 February 2012

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. The court should then consider further adjustment within the category range for aggravating or mitigating features, set out on page 243. In cases where the offender is regarded as being at the very top of the ‘leading’ role it may be justifiable for the court to depart from the guideline.

Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, 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.

For class A cases, section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a court should impose a minimum sentence of at least seven years’ imprisonment for a third class A trafficking offence except where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.

Class A
CLASS A Leading role Significant role Lesser role

Category 1 

Starting point

14 years’ custody

Starting point

10 years’ custody

Starting point

7 years’ custody

Category range

12 – 16 years’ custody

Category range

9 – 12 years’ custody

Category range

6 – 9 years’ custody

Category 2 

Starting point

11 years’ custody

Starting point

8 years’ custody

Starting point

5 years’ custody

Category range

9 – 13 years’ custody

Category range

6 years 6 months’ – 10 years’ custody

Category range

3 years 6 months’ – 7 years’ custody

Category 3 

Starting point

8 years 6 months’ custody

Starting point

5 years’ custody

Starting point

3 years 6 months’ custody

Category range

6 years 6 months’ – 10 years’ custody

Category range

3 years 6 months’ – 7 years’ custody

Category range

2 – 5 years’ custody

Category 4 

Starting point

5 years 6 months’ custody

Starting point

3 years 6 months’ custody

Starting point

18 months’ custody

Category range

4 years 6 months’ – 7 years 6 months’ custody

Category range

2 – 5 years’ custody

Category range

High level community order – 3 years’ custody

Class B
CLASS B Leading role Significant role Lesser role

Category 1 

Starting point

8 years’ custody

Starting point

5 years 6 months’ custody

Starting point

3 years’ custody

Category range

7 – 10 years’ custody

Category range

5 – 7 years’ custody

Category range

2 years 6 months’ – 5 years’ custody

Category 2 

Starting point

6 years’ custody

Starting point

4 years’ custody

Starting point

1 year’s custody

 

Category range

4 years 6 months’ – 8 years’ custody

Category range

2 years 6 months’ – 5 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category 3 

Starting point

4 years’ custody

Starting point

1 year’s custody

Starting point

High level community order

Category range

2 years 6 months’ – 5 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category range

Low level community order – 26 weeks’ custody

Category 4 

Starting point

1 year’s custody

Starting point

High level community order

Starting point

Band C fine

Category range

High level community order – 3 years’ custody

Category range

Medium level community order – 26 weeks’ custody

Category range

Discharge – medium level community order

Class C
CLASS C Leading role Significant role Lesser role

Category 1 

Starting point

5 years’ custody

Starting point

3 years’ custody

Starting point

18 months’ custody

Category range

4 – 8 years’ custody

Category range

2 – 5 years’ custody

Category range

1 – 3 years’ custody

Category 2 

Starting point

3 years 6 months’ custody

Starting point

18 months’ custody

Starting point

26 weeks’ custody

Category range

2 – 5 years’ custody

Category range

1 – 3 years’ custody

Category range

High level community order – 18 months’ custody

Category 3 

Starting point

18 months’ custody

Starting point

26 weeks’ custody

Starting point 

High level community order

Category range

1 – 3 years’ custody

Category range

High level community order – 18 months’ custody

Category range

Low level community order – 12 weeks’ custody

Category 4 

Starting point

26 weeks’ custody

Starting point

High level community order

Starting point

Band C fine

Category range

High level community order – 18 months’ custody

Category range

Low level community order – 12 weeks’ custody

Category range

Discharge – medium level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. Where appropriate, consider 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 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 (see shaded box at page 241 if third drug trafficking conviction)
  • Offence committed on bail

Other aggravating factors include:

  • Nature of any likely supply
  • Level of any profit element
  • Use of premises accompanied by unlawful access to electricity/other utility supply of others
  • Ongoing/large scale operation as evidenced by presence and nature of specialist equipment
  • Exposure of others to more than usual danger, for example drugs cut with harmful substances
  • Attempts to conceal or dispose of evidence, where not charged separately
  • Presence of others, especially children and/or non-users
  • Presence of weapon, where not charged separately
  • High purity or high potential yield
  • Failure to comply with current court orders
  • Offence committed on licence
  • Established evidence of community impact

Factors reducing seriousness or reflecting personal mitigation

  • Involvement due to pressure, intimidation or coercion falling short of duress, except where already taken into account at step 1
  • Isolated incident
  • Low purity
  • No previous convictions or no relevant or recent convictions
  • Offender’s vulnerability was exploited
  • Remorse
  • Good character and/or exemplary conduct
  • 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
  • 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