Production of a controlled drug/ Cultivation of cannabis plant

Misuse of Drugs Act 1971, s.4(2)(a) or (b), Misuse of Drugs Act 1971, s.6(2)
Effective from: 27 February 2012

Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 110 Powers of Criminal Courts (Sentencing) Act 2000 in which case the offence is triable only on indictment.

Class A
Maximum: Life imprisonment
Offence range: Community order – 16 years’ custody

A class A offence is a drug trafficking offence for the purpose of imposing a minimum sentence under section 110 Powers of Criminal Courts (Sentencing) Act 2000

Class B
Maximum: 14 years’ custody
Offence range: Discharge – 10 years’ custody

Class C
Maximum: 14 years’ custody
Offence range: Discharge – 8 years’ custody

User guide for this offence


Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability

In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after 1 April 2014 regardless of the date of the offence.*

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed on or after 6 April 2010:

“Every court –

  1. must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and
  2. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.”

This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Sentencing children and young people - overarching principles.

Structure, ranges and starting points

For the purposes of section 125(3) – (4) of the Coroners and Justice Act 2009, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified three categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.

Starting points define the position within a category range from which to start calculating the provisional sentence. Starting points apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified.

*The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 – Determining the offence category

The court should determine the offender’s culpability (role) and the harm caused (output or potential output) with reference to the tables below.

In assessing culpability, the sentencer should weigh up all of the factors of the case to determine role. Where there are characteristics present which fall under different role categories, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.

In assessing harm, output or potential output is determined by the weight of the product or number of plants/scale of operation. For production offences, purity is not taken into account at step 1 but is dealt with at step 2.

Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.

Culpability demonstrated by offender’s role

One or more of these characteristics may demonstrate the offender’s role. These lists are not exhaustive.

Leading role

  • directing or organising production on a commercial scale;
  • substantial links to, and influence on, others in a chain;
  • expectation of substantial financial gain;
  • uses business as cover;
  • abuses a position of trust or responsibility.

Significant role

  • operational or management function within a chain;
  • involves others in the operation whether by pressure, influence, intimidation or reward;
  • motivated by financial or other advantage, whether or not operating alone;
  • some awareness and understanding of scale of operation.

Lesser role

  • performs a limited function under direction;
  • engaged by pressure, coercion, intimidation;
  • involvement through naivety/exploitation;
  • no influence on those above in a chain;
  • very little, if any, awareness or understanding of the scale of operation;
  • if own operation, solely for own use (considering reasonableness of account in all the circumstances).

Category of harm

Indicative output or potential output (upon which the starting point is based):

Category 1

  • heroin, cocaine – 5kg;
  • ecstasy – 10,000 tablets;
  • LSD – 250,000 tablets;
  • amphetamine – 20kg;
  • cannabis – operation capable of producing industrial quantities for commercial use;
  • ketamine – 5kg.

Category 2

  • heroin, cocaine – 1kg;
  • ecstasy – 2,000 tablets;
  • LSD – 25,000 squares;
  • amphetamine – 4kg;
  • cannabis – operation capable of producing significant quantities for commercial use;
  • ketamine – 1kg.

Category 3

  • heroin, cocaine – 150g;
  • ecstasy – 300 tablets;
  • LSD – 2,500 squares;
  • amphetamine – 750g;
  • cannabis – 28 plants;*
  • ketamine – 150g.

 Category 4

  • heroin, cocaine – 5g;
  • ecstasy – 20 tablets;
  • LSD – 170 squares;
  • amphetamine – 20g;
  • cannabis – 9 plants (domestic operation);*
  • ketamine – 5g.

  * With assumed yield of 40g per plant

Sentencing drug offences involving newer and less common drugs

It is important to note that this guidance does not carry the same authority as a sentencing guideline, and sentencers are not obliged to follow it. However, it is hoped that the majority of sentencers will find it useful in assisting them to deal with these cases.

The Drug Offences Guideline came into force in 2012 and covers the main possession, supply, importation and production offences in the Misuse of Drugs Act 1971. By virtue of s125 (1) (b) of the Coroners and Justice Act 2009, sentencers may also refer to this guideline when sentencing other relevant offences, for example, offences under the Psychoactive Substances Act 2016.

Drug offences – assessing harm

For most offences, the Drug Offences guideline uses class and quantity of the drug as the key element of assessing the harm caused by the offence, with higher quantities indicating higher harm. The current guideline covers all drugs included in the Misuse of Drugs Act 1971. However, as indicators of the level of harm, the guideline gives the indicative quantities of only the most common drugs: heroin, cocaine, ecstasy, LSD, amphetamine, cannabis and ketamine.

Example – supplying or offering to supply a controlled drug

To put the offence of supplying or offering to supply a controlled drug in the most serious category, the quantity of drug required would be:

  • for amphetamine, 20kg
  • for heroin or cocaine, only 5kg

The Council intended, and case law has clearly shown, that where the drug in question is not listed in the guideline, the assessment of harm will be based on the equivalent level of harm caused by the relevant quantity of that drug.

Newer drugs – assessing harm

Since publication of the Drug Offences guideline, there has been an increase in the number of cases before the courts involving newer drugs, such as synthetic opioids, which may have much higher potency and potential to cause harm than more common drugs.

Where these newer drugs are covered by the guideline but not specifically listed in the section on assessment of harm, the approach to assessing harm in these cases should be as with all cases of controlled drugs not explicitly mentioned in the guidelines. Sentencers should expect to be provided with expert evidence to assist in determining the potency of the particular drug and in equating the quantity in the case with the quantities set out in the guidelines in terms of the harm caused.

Example – supplying or offering to supply a controlled drug

If the quantity of the drug would cause as much harm as 5kg of heroin, the offence would be in the most serious category.

Where the offence is not covered by the guideline (such as offences under the Psychoactive Substances Act 2016) the approach should be the same, but the court must also take into account any difference in the statutory maximum penalty.

Expert evidence

In line with CPS guidance, prosecutors will be providing courts with this information and expert evidence to ensure that the court can make a correct assessment of harm in cases involving drugs not explicitly listed in the guidelines. This is likely to include evidence on the potency of the drug in question, and the value of sales, along with evidence on the wider harm caused to the community as well as to the drug users and others immediately affected in the case.

The Council has published an evaluation of the Drug Offences guideline, and has now started work to revise the guideline. We will consult on a revised draft guideline in due course, and documents will be available on the consultation pages.

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. 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

Community orders

For further information see Imposition of community and custodial sentences.

  • The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels within the community order band is appropriate. See below for non-exhaustive examples of requirements that might be appropriate in each.
  • At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so.
  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
  • Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities.
  • A community order must not be imposed unless the offence is ‘serious enough to warrant such a sentence’. Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order.
  • Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. In particular, a Band D fine may be an appropriate alternative to a community order.
  • The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender.
  • Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions).
  • In many cases, a pre-sentence report will be pivotal in helping the court decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. Whenever the court reaches the provisional view that a community order may be appropriate, it should request a pre-sentence report (whether written or verbal) unless the court is of the opinion that a report is unnecessary in all the circumstances of the case.
  • It may be helpful to indicate to the National Probation Service the court’s preliminary opinion as to which of the three sentencing ranges is relevant and the purpose(s) of sentencing that the package of requirements is expected to fulfil. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. If an adjournment cannot be avoided, the information should be provided to the National Probation Service in written form and a copy retained on the court file for the benefit of the sentencing court. However, the court must make clear to the offender that all sentencing options remain open including, in appropriate cases, committal for sentence to the Crown Court.
Low Medium High
Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate

In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary

Offences that obviously fall within the community order band Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances

More intensive sentences which combine two or more requirements may be appropriate

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 40 – 80 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for a few weeks
  • Exclusion requirement, for a few months
  • Prohibited activity requirement
  • Attendance centre requirement (where available)
Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  •  80 – 150 hours of unpaid work
  • Curfew requirement for example up to 16 hours for 2 – 3 months
  • Exclusion requirement lasting in the region of 6 months
  • Prohibited activity requirement
Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 150 – 300 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 4 – 12 months
  • Exclusion requirement lasting in the region of 12 months

* If order does not contain a punitive requirement, suggested fine levels are indicated below:

BAND A FINE

BAND B FINE

BAND C FINE

Custodial sentences

Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline.


The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Suspended Sentences: General Guidance

i) The guidance regarding pre-sentence reports applies if suspending custody.

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers).

iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences.

v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

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,

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Guidance on the use of previous convictions

    The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

    Section 143 of the Criminal Justice Act 2003 states that:

    In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—

    (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

    (b) the time that has elapsed since the conviction.

    1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
    2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
    3. Previous convictions are normally relevant to the current offence when they are of a similar type.
    4. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
    5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
    6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
    7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
    8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
    9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
    10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
    11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
    12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
    13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
    having regard to a) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since conviction (see “For Class A cases” above if third drug trafficking conviction)

  • Offence committed on bail

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    S143 (3) Criminal Justice Act 2003 states:

    In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.

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

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
    • Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

    Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

     
  • Attempts to conceal or dispose of evidence, where not charged separately

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

    Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

  • Presence of others, especially children and/or non-users

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
    • Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

    Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

     
  • Presence of weapon, where not charged separately
  • High purity or high potential yield
  • Failure to comply with current court orders

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • Commission of an offence while subject to a relevant court order makes the offence more serious.
    • The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of an order regard should be had to totality
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

     
  • Offence committed on licence or post sentence supervision

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
    • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
    • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
    • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

    When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

     
  • Established evidence of community impact

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
    • For issues of prevalence see the separate guidance below:

    Prevalence

    • Sentencing levels in offence specific guidelines take account of collective social harm. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community.
    • It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in this area'.
    • First, there must be evidence provided to the court by a responsible body or by a senior police officer.
    • Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
    • Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied
      • that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
      • that the circumstances can properly be described as exceptional; and
      • that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
     

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

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • Where this applies it will reduce the culpability of the offender.
    • This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
    • Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
    • This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.
     
  • Isolated incident
  • Low purity
  • No previous convictions or no relevant or recent convictions

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
    • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
    • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
    • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
     
  • Offender’s vulnerability was exploited
  • Remorse

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).

    Lack of remorse should never be treated as an aggravating factor.

  • Good character and/or exemplary conduct

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    This factor may apply whether or not the offender has previous convictions.  Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. 

    However, this factor is less likely to be relevant where the offending is very serious.  Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

     
  • Determination and/or demonstration of steps having been taken to address addiction or offending behaviour

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence.  This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

    Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation.

    The court will be assisted by a PSR in making this assessment.

     
  • Serious medical conditions requiring urgent, intensive or long-term treatment

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
    • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
    • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
    • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
    • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
     
  • Age and/or lack of maturity where it affects the responsibility of the offender

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    Age and/or lack of maturity can affect:

    • the offender’s responsibility for the offence and
    • the effect of the sentence on the offender.

    Either or both of these considerations may justify a reduction in the sentence.

    The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). 

    In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

    • evaluate the consequences of their actions
    • limit impulsivity
    • limit risk taking

    Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

    Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.

    An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

    An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

    There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

    Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties.  Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.

    Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

    Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

    When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR.

     
  • Mental disorder or learning disability

    Effective from: 01 October 2020

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

    Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

     
  • Sole or primary carer for dependent relatives

    Effective from: 01 October 2019

    Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

    This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.  See also the Imposition of community and custodial sentences guideline.

    For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

    Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

    For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

    ­When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

    In addition when sentencing an offender who is pregnant relevant considerations may include:

    • any effect of the sentence on the health of the offender and
    • any effect of the sentence on the unborn child

    The court should ensure that it has all relevant information about dependent children before deciding on sentence.

    When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

    When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the National Probation Service to address these issues in a PSR.

    Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 94-100)

     

     

Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the guideline for Reduction in Sentence for a Guilty Plea (where first hearing is on or after 1 June 2017, or first hearing before 1 June 2017).

For class A offences, where a minimum mandatory sentence is imposed under section 110 Powers of Criminal Courts (Sentencing) Act, the discount for an early guilty plea must not exceed 20 per cent.

Step 5 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. See Totality guideline.

Step 6 – Confiscation and ancillary orders

In all cases, the court is required to consider confiscation where the Crown invokes the process or where the court considers it appropriate. It should also consider whether to make ancillary orders.

Step 7 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 8 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.