Guernsey Law Reports 2007–08 GLR 1
MARSH and HARDY v. LAW OFFICERS OF THE CROWN
FALLAIZE v. LAW OFFICERS OF THE CROWN
COURT OF APPEAL (Nutting, J.A., Rowland, Bailiff, and Bailhache, Bailiff of Jersey): March 27th, 2007
Criminal Law—drugs—cultivation—sentence—starting points—Richards guidelines on starting points for importation to be followed—no significance in difference between herbal cannabis and cannabis resin—sale price identical and potential yield in cultivation cases, properly estimated, equivalent to actual quantity in importation cases
The appellants were charged in the Royal Court with the cultivation of cannabis plants contrary to the Misuse of Drugs (Bailiwick of Guernsey) Law 1974, s.5(2).
The appellants were all engaged in the bulk cultivation of cannabis in their homes. M and H were found growing, in a sophisticated manner involving financial outlay, preparation and organization, 14 small plants and 45 seedlings. In addition, 29 seeds were found. The police estimated that the plants and seedlings would have produced a crop of approximately 4.75 kg. in weight, valued at £35,000, which would have made 19–21,000 reefers and taken one person almost 19 years to consume on a recreational basis.
In F’s loft were found 36 cannabis plants, 10 of which were wilted and dried out, seeds, seedling pots, a seed propagation box and various other aids to the cultivation of the plants. The police seized approximately 1.13 kg., valued at approximately £2,200, the harvested component of which, approximately 330g., would have made about 1,400 reefers and taken one person nearly 500 days to consume on a recreational basis.
M pleaded guilty to the charge. He had no previous drug-related convictions, had not previously been imprisoned and had recently become a father. The Royal Court (Collas, Deputy Bailiff) expressly said that although the guidelines for starting points in sentences for importation laid down in Richards did not refer to cultivation, it should apply them (though not rigidly) and therefore chose a low starting point of 5 years (in a 5–8 year range) for the offence, even though at 4.75 kg. it was near the top of the weight range (2–5 kg.). Allowing mitigation, it sentenced M to 3 years’ imprisonment.
H pleaded not guilty. He also had no previous drug-related convictions and no previous imprisonment. The court felt it could not distinguish his
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culpability from that of M, chose the same 5-year starting point and allowed 6 months’ discount for mitigation. H was therefore sentenced to 4½ years’ imprisonment.
F pleaded guilty. He had several previous convictions, including for drug-related offences and public order offences and had been subject to several different forms of punishment. The Royal Court (Finch, Lieut. Bailiff) selected a starting point of 5 years, using the Richards criteria and on the basis that the available drugs in the Island had been considerably increased by the offence, but after allowing mitigation passed a sentence of 3 years’ imprisonment.
The appeals against sentence were consolidated as raising common points of sentencing policy. The appellants submitted that (a) the Royal Court had been wrong to apply the Richards starting points (which were guidelines for sentencing in importation cases) to offences involving the cultivation of cannabis; (b) in particular, they were inapplicable since a distinction should have been drawn between the cultivation of herbal cannabis and the importation of cannabis resin; (c) the court’s estimate of the usable and saleable quantities of cannabis involved was unreliable and exaggerated, since it had not distinguished between the various parts of the plants and the uses to which they could be put and was therefore a statement of potential rather than actual yield; (d) inadequate consideration (and insufficient discount) had been given to the appellants’ claims that they were cultivating the plants for their personal use and the court had wrongly proceeded on the basis that the appellants were running commercial enterprises; and (e) the personal circumstances of the appellants had been inadequately considered, especially those of M, who was anxious to address his drug dependency and required a suspended sentence and treatment conditions rather than imprisonment.
Held, affirming the sentences on the appellants in the first appeal and reducing that on the appellant in the second appeal:
(1) The Royal Court had properly followed the Richards guidelines for starting points for sentencing, even though those guidelines basically applied to the importation of drugs rather than their cultivation. In particular, it was legitimate to compare the present cases with importation cases, even though they involved herbal cannabis rather than cannabis resin (which the importation cases invariably concerned), since there was evidence that the street price, the mid-market price and the wholesale price was the same for both (paras. 33–37).
(2) Similarly, it was no obstacle to applying the importation guidelines based on weight simply because the quantity of usable herbal cannabis had to be estimated. The potential yield was a legitimate consideration in cultivation cases (rather than the actual quantity in importation cases)—and the court was entitled to make a sensible estimate of the quantity likely to be produced, based on volume of plants, seeds, seedlings, seedling pots and cultivation equipment seized, and the uncontroverted estimates of experienced Drug Squad officers. In any case, the potential
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quantity was only one factor to be considered, since the court also had to be concerned with the sophistication and scale of the cultivation process (paras. 38–41).
(3) The Royal Court had considered and properly rejected the submissions that the drugs were intended for personal use only, since the quantities involved were sufficiently large to make it unlikely that these were genuine claims and more likely that the cannabis would be supplied to others. A credible claim of cultivation of a small quantity for personal use might have amounted to mitigation but a larger quantity (or any other evidence), which suggested that offenders were dealers, would in fact be an aggravation. In such a case, whilst the Richards guidelines should be followed, it was the scale of the increase in the stock of the drug available in the Island that should be treated as the basis for sentencing (paras. 42–45).
(4) The sentences of M and H would be upheld. The starting point for both had been correctly, if somewhat generously, chosen and appropriate mitigation had been allowed. F’s sentence would be reduced to two years—the starting point of five years had been too high, as the quantity was half-way up the relevant Richards band but the starting point selected was near the top. The starting point should have been three years and appropriate mitigation reduced the final sentence to two years (paras. 46–53).
Cases cited:
(1) Edwards v. Law Officers, C.A., Cr. App. No. 343, September 19th, 2006, unreported, followed.
(2) Law Officers v. Le Flock, Royal Ct., October 3rd, 1996, unreported, approved.
(3) Law Officers v. Le Long, Royal Ct., December 5th, 2000, unreported, approved.
(4) Law Officers v. Petit (1990), 10 GLJ 24, approved.
(5) Mather v. Law Officers, C.A., Cases No. 241 and 242, July 22nd, 1999, unreported, referred to.
(6) Richards v. Law Officers, C.A., Cases No. 267, 270, 273, 275–277, April 18th, 2002, unreported, applied.
(7) Stephenson v. Law Officers, C.A., July 21st, 1997, unreported, dicta of Lord Carlisle of Bucklow, J.A. considered.
Legislation construed:
Misuse of Drugs (Bailiwick of Guernsey) Law 1974, s. 5:
“(1) Subject to any Order under section six of this Law for the time being in force, it shall not be lawful for a person to cultivate any plant of the genus Cannabis.
(2) Subject to section twenty-seven of this Law, it is an offence to cultivate any such plant in contravention of subsection (1) of this section.”
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The appellants in the first appeal appeared in person;
Ms. J.E. Roland for the appellant in the second appeal;
Mrs. F. Russell, Crown Advocate, for the Crown.
1 NUTTING, J.A., delivering the judgment of the court:
Introduction
Since these three appeals all concern the cultivation of cannabis and since all three involve several grounds of appeal which are common one to another, it is convenient to consolidate these cases.
2 This is the first occasion on which this court has had to consider a case of cultivation of cannabis since the promulgation of the guidelines in Richards v. Law Officers (6). In the light of that and other matters, we considered that it was appropriate to give leave to appeal to these appellants and we did so.
Jonathon Graham Marsh and Dean John Hardy
3 On October 3rd, 2006, these two appellants appeared before Collas, Deputy Bailiff and Jurats for sentence on an indictment containing a single count, which alleged that together they cultivated cannabis plants contrary to s.5(2) of the Misuse of Drugs (Bailiwick of Guernsey) Law 1974.
4 The appellant Marsh pleaded guilty to the offence on July 6th, 2006. The appellant Hardy entered a not guilty plea and was convicted on September 8th, 2006 after a trial. Having heard pleas in mitigation and having considered social enquiry reports, the Royal Court decided that immediate custodial sentences were required in respect of both accused. Marsh received a sentence of 3 years’ imprisonment and Hardy a sentence of 4½ years’ imprisonment. On October 10th, 2006, the appellants filed notices of application for leave to appeal against sentence. Leave was refused by a single judge of this court on February 2nd, 2007.
5 The circumstances of the offence are that at 5.20 a.m. on Thursday February 2nd, 2006, a police raid took place at a flat in Mount Durand in St. Peter Port. On entering the premises, the police officers made their way to the only bedroom, where they found that an area had been partitioned off with plastic sheeting. This area had been specially equipped to cultivate cannabis plants. A number of plants and seedlings were visible. Strip lights were attached to the wall and the ceiling. Water was stored in open containers and a temperature gauge was fixed to the wall. The air within the room was hot and humid to the extent that one of the officers described the environment as being “like on a Caribbean beach.”
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6 The appellant Marsh, who was present, was taken to the police station for questioning. Later that morning, the appellant Hardy was arrested at his place of work and was also subsequently interviewed. Both appellants made full admissions. They stated that they had decided to cultivate cannabis together for their own use as it was cheaper than buying it. Marsh said that he had bought the seeds on the Internet and that he and the appellant Hardy had set up the equipment in the flat together. No one else was involved. Analysis established that there were 14 small cannabis plants in the premises together with 45 seedlings. In addition 29 cannabis seeds were recovered.
7 Hardy later retracted his admissions. At trial, he stated that he had made a false confession in order to protect his sister in whose name the premises were rented. Marsh gave evidence on Hardy’s behalf.
8 At the trial of the appellant Hardy, evidence of an officer of the Drugs Squad was read to the court, apparently by agreement, that this was a far more organized and sophisticated attempt at growing cannabis than either appellant had admitted in interview. The officer calculated that the plants and seedlings, not including the 29 seeds, could have yielded a total crop of approximately 4.75 kg. of cannabis. This amount would make between 19,000 and 21,000 reefer cigarettes, which, for recreational use, would have taken one person between 17 and 19 years to consume.
9 The value of the cannabis, as estimated, was £35,000. The officer’s conclusion was that the volume of cannabis recovered, combined with the appellants’ financial outlay, preparation and organization indicated that the appellants were engaged in a commercial enterprise.
10 As to previous convictions, both appellants have appeared before the Magistrate’s Court on a number of occasions but prior to the present proceedings neither had any drug-related convictions. Marsh’s most recent conviction in March 2005 was for a motoring matter. Hardy’s most recent conviction in January 2006 was also for a relatively minor offence. Neither man has been to prison before.
11 On behalf of the appellants it was submitted to the Royal Court that the guidelines set out in Richards (6) should not be applied in the present case for the following reasons:
(i) Whilst the courts had stated, prior to Richards, that cultivation cases should be considered along the same lines as importation cases, the sentencing principles in the latter situation were now different and therefore this approach was no longer appropriate.
(ii) Richards referred only to cannabis resin while the present case concerned cannabis plants.
(iii) It would be inappropriate to take account of the 4.75 kg. figure with
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reference to the Richards guidelines because the Drug Squad officer’s opinion was based on a potential yield rather than an actual yield. In any event, it was submitted that the figure was a gross over-estimate. The plants cultivated were of a low quality dwarf variety and it had not been established how many of the seedlings were female and therefore of any value.
12 It was further submitted that the court should not sentence the appellants on the basis that they were engaged in a commercial enterprise. The venture was in its early stages. The plants discovered were only a month old and no useable cannabis had yet been produced. There was no evidence that the appellants had sought to supply cannabis to others or had profited in any way from their activities.
13 The court’s attention was further drawn to the personal circumstances of each appellant. Marsh in particular was described as being keen to address his drug dependency. The court was invited to adopt the recommendation made in his social enquiry report that a suspended sentence could be imposed with drug treatment and testing requirements.
14 In sentencing the appellants, the Deputy Bailiff noted that this was the first occasion on which the court had had to consider appropriate sentences for an offence of cultivating cannabis since the guidelines in Richards (6) had been laid down. It was acknowledged that Richards did not expressly refer to the cultivation of cannabis.
15 The Deputy Bailiff emphasized that in the earlier cases of Law Officers v. Le Flock (2) and Law Officers v. Le Long (3) the Royal Court had said that it would treat commercial cultivation on a similar basis to importation. The court’s view in the instant case was that this remained the correct approach. It was plain, said the Deputy Bailiff, that the appellants’ crop would have added to the stock of cannabis on the Island in accordance with the mischief identified in Richards. However, the court emphasized that the Richards sentencing guidelines should not be rigidly applied. Given the number of plants and seedlings in this case and the degree of sophistication involved, the Royal Court considered that the correct starting point was five years’ imprisonment.
16 The Deputy Bailiff acknowledged that neither appellant had appeared in the Royal Court before and that neither had previously been convicted of a drug-related offence. Their personal circumstances and the social enquiry reports were also considered and Marsh was given full credit for his guilty plea. However, the court’s view was that the appellants had been engaged in an elaborate enterprise to produce cannabis and that in the circumstances the appropriate sentences were therefore sentences of immediate custody.
17 The appellant Marsh now appeals against his sentence on the
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grounds that the court erred (a) in failing to disclose its starting point; (b) by following the Richards guidelines in circumstances which were not appropriate; and (c) in declining to suspend the sentence.
18 The appellant Hardy appeals against his sentence on the grounds that the court erred (a) by referring to the Richards guidelines when determining the starting point; (b) in selecting a starting point based on a presumed yield of 4.75 kg. of cannabis; (c) in finding that the cannabis was grown on a commercial basis; and (d) in attaching insufficient weight to the fact that the appellant did not have any similar previous convictions.
Sean David Fallaize
19 On October 3rd, 2006, this appellant appeared before Finch, Lieut. Bailiff and Jurats for sentence on an indictment containing a single count which alleged that he cultivated cannabis plants contrary to s.5(2) of the Misuse of Drugs (Bailiwick of Guernsey) Law 1974.
20 The appellant had pleaded guilty to the offence on August 3rd, 2006. Having heard details supporting the charge and a plea in mitigation, and having considered a social enquiry report and a psychiatric report, the Royal Court imposed a sentence of three years’ immediate imprisonment. On October 11th, 2006, the appellant filed notice of application for leave to appeal against sentence; but leave was refused by a single judge of this court on February 2nd 2007.
21 On May 26th, 2006 at 5 p.m., a police raid on a flat occupied by the appellant in Tower Hill, St. Peter Port, revealed that the loft area had been converted for the cultivation of cannabis. The loft appeared to have been divided into a growing area and a drying area. There were 26 cannabis plants present in various stages of growth. These were divided into two main groups. One group of 10 plants was located close to the loft hatch; their leaves were wilted and dried out. The second group of 26 plants was located towards the back of the attic space; these plants were apparently healthy and thriving. The area also contained electric lights, a fan, plant food, pest sprays, peat, dried plant material and a 2006 calendar containing handwritten notes on when to feed, water and cut the plants. Alongside the healthy plants were bunches of mature buds hanging from drying lines attached to the rafters.
22 Elsewhere in the flat police found various other paraphernalia connected with cannabis cultivation, including seeds, seedling pots, a seed propagation box and two books entitled Marijuana Growers Guide and Hydroponics. It was later discovered that since the appellant had taken up residence in the flat the average electricity consumption had increased by 93%.
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23 The appellant was interviewed. He accepted that the plants were cannabis plants and that they belonged to him. He stated that no one else was involved in the cultivation of the plants and that the cannabis produced was for his own use. He claimed to smoke about 2 oz. of cannabis per week and that he had intended to throw away the plants that were dead.
24 Analysis confirmed that the 16 live plants were indeed cannabis. Two different varieties were present. Had these plants continued to grow, according to an officer of the Drug Squad, it was expected that they would have produced up to 799.47g. (28.21 oz.) of cannabis with an approximate value of between £3,375 and £5,642. In addition to the plants, a total of 333.25g. (11.9 oz.) of cannabis plant material was recovered from the loft. This material was estimated to be worth between £2,140 and £2,380. The total weight of cannabis as calculated was potentially in excess of 1.13 kg.
25 The officer estimated that the 333.25g. (11.9 oz.) of cannabis available for consumption at the time of seizure would have made between 1,333 and 1,487 reefer cigarettes, which, assuming recreational use, would have taken one person just short of 500 days to consume. The appellant’s claim of smoking 2 oz. of cannabis per week would use up the cannabis seized within six weeks. The officer considered that this level of consumption by a person in full-time manual employment such as the appellant was unlikely. The level of investment by the appellant was estimated to have been in the region of £2,000 which, combined with the level of preparation and organization, suggested that the appellant was cultivating cannabis on a commercial basis.
26 The appellant has a large number of previous convictions for a variety of offences. His most recent conviction prior to these proceedings was on March 5th, 2004 for an offence involving public order. He has several previous convictions for the possession of controlled drugs, the last being for possession of cannabis on April 26th, 1999.
27 On behalf of the appellant it was submitted to the Royal Court that the guidelines set out in Richards (6) should not be applied in this case, as those guidelines applied only to the importation of cannabis resin and not to the cultivation of herbal cannabis. If the Richards guidelines were to be applied, it was submitted that the appellant’s case should be viewed as falling at the bottom of the scale.
28 It was further submitted that undue weight should not be attached to the evidence of the officer of the Drug Squad. It was suggested that he had failed to take into account that ultimately only the buds of the cannabis plants were to be used (in accordance with the appellant’s evidence) and that the remainder would be thrown away. It was emphasized that the appellant was cultivating cannabis for his own use.
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29 Finally, attention was drawn to the appellant’s personal circumstances and in particular to the fact that he suffered from a chronic back problem. This caused him considerable pain, from which the cannabis provided relief. It was submitted that the appellant’s medical condition amounted to extenuating circumstances and that a suspended sentence should therefore be imposed.
30 In sentencing the appellant, the Lieutenant Bailiff stated that the expert evidence including the evidence of the officer of the Drug Squad had been particularly helpful to the court. He observed that, consistent with the principle of Richards (6), the amount of cannabis available in the island of Guernsey had been increased by the appellant’s cultivation of the drug and that the quantities involved were far from insignificant. He said that the appellant’s claim that the cannabis was for personal use did not assist the court, because the mischief of adding to the stock of drugs on the Island still applied. A starting point of five years’ imprisonment was adopted. The Lieutenant Bailiff stated that, having taken into account all the information provided on the appellant’s behalf, in the court’s view, a suspended sentence was not appropriate. He emphasized that the court considered that this was a sophisticated effort to cultivate a substantial amount of cannabis and that the appellant’s enterprise was organized and fruitful and had required a significant outlay.
31 This appellant appeals against his sentence on the grounds—
(a) that the court erred in applying the Richards guidelines in a case involving the cultivation of herbal cannabis. The Richards guidelines only apply to cases concerning cannabis resin;
(b) even if the Richards guidelines were relevant, the court erred in selecting a starting point of five years. In the circumstances, this starting point was too high;
(c) the court’s approach to the starting point was inconsistent both with previous cases (for example Le Long (3)) and also with the similar case of Marsh and Hardy who had been sentenced, albeit by a different court, that very morning;
(d) the method adopted by the court for assessing the quantity of cannabis cultivated by the appellant was inaccurate. The court failed to take into account that some or all of the plants might not have survived; that some of the detritus would have been thrown away; and that only the buds of the plants were to be smoked; and
(e) the court attached insufficient weight to the appellant’s contention that the cannabis was for his personal use.
32 Before we come to determining these appeals, we should like to pay tribute to Miss Roland who presented the appeal of Fallaize with a
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cogency and a realism which made her submissions the more attractive. We would also like to assure the appellants Marsh and Hardy that the absence of advocates to argue their cases in the light of the refusal of legal aid has caused them no disadvantage. The persuasive and succinct way in which they expressed themselves to us together with the written submissions settled by counsel on their behalf (in advance of their applications for leave to appeal) have provided this court with all the information and argument the court needs to determine their appeals.
Submissions in common
33 The first point common in the cases of all three appellants is the submission that the lower court was wrong to apply the guidelines in Richards (6) to cases involving the cultivation of cannabis, because the guidelines should only be applied to cases involving importation. In fact, there are several cases, albeit at first instance, where the Royal Court has indicated that in such cases proper comparators are indeed cases concerning importation. The cases to which we have been referred include Law Officers v. Petit (4) in which the Deputy Bailiff said in sentencing:
“As regards cultivation of cannabis, where the accused cultivates more than a few plants, the court will impose a deterrent sentence for the same reason and at the same level as has been stated as regards sentences for importation of cannabis to the value of several hundred pounds. The difficulty of detecting this offence calls for a high level of punishment as is recognized by the level of penalties which the court is empowered to impose.”
34 That approach was endorsed by the Royal Court in the subsequent case of Law Officers v. Le Flock (2):
“The court adopts what was said in the case of Petit in 1990, which was that cultivation of more than a few plants of cannabis would attract sentences at similar levels to those imposed for importation of larger amounts of cannabis.”
35 The most recent instance where a guideline case of importation was used in a cultivation case is Law Officers v. Le Long (3). The offender in that case had cultivated in excess of 2.5 kg. of cannabis. In sentencing, the Deputy Bailiff said:
“Except in cases where a clear intent has been established to deal in the crop which results from the cultivation of cannabis, when such intention will be treated as an aggravating factor and therefore generally lead to a longer sentence, this court will approach sentencing on the basis of the amount of cannabis produced. This court has said in the case of Le Flock in 1996 that cases of
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cultivation will be treated in a very similar way to cases of importation.”
36 We see no reason to disapprove this approach. Indeed, we consider that in such cases as these the court should look to the guideline cases involving importation (which, since 2002, consists of Richards) to obtain assistance for appropriate starting points for sentence.
37 The second common submission was that since cases of cultivation necessarily involve herbal cannabis, it is not appropriate to compare them with importation cases, which invariably concern cannabis resin. We do not agree. The evidence of the Drug Squad officers in the instant cases tabulated the comparative prices for both herbal cannabis and cannabis resin. The officers provided the prices for street dealing in both kinds of cannabis as well as the mid-market price and the wholesale price in each ⅛ oz. The price for both kinds of cannabis was the same in all categories. It follows that there was no reason for the Royal Court to feel deterred from treating herbal cannabis any differently from cannabis resin, with which Richards was, among other drugs, concerned.
38 The third linked submission was that in assessing the amount which the cultivation in each case might have produced, the Royal Court was not entitled to assume that all the plants would have survived nor that all the plants would have yielded material fit for consumption and that actual weight in importation cases is an inappropriate yardstick to compare with potential yield in cultivation cases.
39 It is of course true that the weight of cannabis with which the court is concerned in a case of cultivation is less certain than in a case of importation where the amount seized can be weighed to a nicety. Nevertheless, where an offender chooses to grow cannabis on a continuing basis and where, as was the situation in both the instant cases, the evidence related to seeds and seedlings and seedling pots as well as all the paraphernalia necessary to produce regular supplies of cannabis, the offender cannot complain if the court makes a sensible estimate of the quantity of cannabis that could be produced by the material found at the time of the raid, based on evidence given by someone with knowledge of cannabis cultivation.
40 In both the flat at Mount Durand (Marsh and Hardy) and the flat at Tower Hill (Fallaize), the sophistication of the cannabis cultivation process was all too obvious. We accept that the inexpertise of an individual offender might cause him to fail to cultivate the full potential of the plants he has grown so as to achieve the weight estimated by a Drug Squad officer, but so long as the court treats the evidence of the officer as an estimate rather than a certain amount and provided the court makes some allowance for that fact, we see no reason why the court
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should not pay heed to the evidence of such an expert. It is to be noted that no evidence was submitted to the Royal Court in either case (notwithstanding assertions made to the Royal Court and repeated to us) to contradict the conclusions of the Drug Squad officers.
41 We wish also to emphasize that the amount of cannabis which might potentially become available once the crop has been harvested is only one of the matters to which the sentencing court should have regard in deciding the starting point. Another aspect is the sophistication of the cultivation process and the scope of the offender’s involvement in the drug scene. The cultivation of a few plants with no evidence of more than the possibility of one harvest is necessarily very different from a case where there is evidence of plants at various stages of growth, evidence of seedlings waiting to be potted on, and of packaged seed waiting to be planted.
42 The fourth point made by all three appellants was that the Royal Court was wrong to decline to adopt the submission that the cannabis found at the two locations was for the personal use of the appellants and to sentence them on that basis. It is clear that in their approach to sentencing, both the Deputy Bailiff and the Lieutenant Bailiff had in mind the approach which the Deputy Bailiff had adopted in Le Long (3):
“With regard to cases of importation, the Court of Appeal has stated this [in Mather v. Law Officers (5)] and this obviously relates to importation:
‘The gravity of the offence depends on the nature and quantity of the drugs imported and to an extent and by extension to their street value. We accept that an importer who brings drugs into the Bailiwick for his own consumption may use that fact to mitigate his conduct but the larger the quantity the less likely it is that the drugs will be used by the importer alone and the more likely it is that the drugs will be supplied to one or more persons within the jurisdiction. Quantity is an aggravating feature.’
By similar reasoning, this court would state that the essential seriousness of the offence of cultivation depends upon the fact of cultivation itself and the amount grown. In this case, the amount of cannabis available for use within this community has been increased by some 90 oz. It is also obvious that your cultivation of the cannabis was a well-planned exercise.”
43 The genesis of this approach may be derived from what was said by Lord Carlisle of Bucklow, J.A. in Stephenson v. Law Officers (7):
“The court accepts the distinction made by the Comptroller that, whilst there may be cases where there is no evidence of intention to
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supply at the time of importation—and therefore it would not be appropriate to bring a prosecution for intent to supply—nevertheless there is a distinction between those cases where the amount brought in is merely for personal use for one or two days (which should be equated with simple possession) and those where the individual brings into the community a significant amount. This in itself is bound to be a matter of public concern because of the continuing risk of the existence of the drug within the Island and the temptation it may hold out to people. In cases of that kind, whilst it is not appropriate to indict for possession with intent to supply, nevertheless the gravity of the importation is in itself far greater than the gravity of the offence of mere possession.”
44 Moreover, this was the essential mischief which was later identified and endorsed in Richards (6) and was repeated most recently in Edwards v. Law Officers (1):
“In applying the guidelines, it is for the sentencing court to determine whether the quantity of drugs under consideration can properly be described as ‘very small,’ having regard to the facts and circumstances of the particular case. If it cannot be so described, a ‘personal use’ claim will not generally result in a lighter sentence, because any importation adds to the stock of drugs available in the Island. The risk of such addition to the stock is that drugs may find their way into other hands.”
45 In the view of this court, it is the increase in the available stock which is the appropriate basis for sentence in cases such as those with which we are dealing today. Where an offender is able to show indubitably that the cannabis was for his own consumption, usually because of the very small amount discovered, that fact may be considered as a mitigating factor in sentence. By the same token, where the evidence reveals—usually but not invariably by reference to quantity—that the offender is a dealer, that fact will be treated in aggravation of punishment. But where as in many cases there is no certain conclusion which can be drawn one way or the other, the offender should be sentenced on the above basis and punishment should be assessed, paying appropriate caution to quantity as identified above in cases of cultivation, by reference to the current guidelines established in Richards.
The individual appeals
46 The appellant Marsh submitted that the Deputy Bailiff erred by setting a starting point which was manifestly too high. Apart from the submissions canvassed above in support of this proposition, he asserted in particular that the amount of cannabis which could have been produced at his address was not 4.75 kg. as suggested to the Royal Court, but not
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more than 100g. We do not accept the figure suggested by the appellant. There was cogent expert evidence before the Royal Court that the plants recovered at Mount Durand were capable of producing 4.75 kg. Moreover, the Richards band into which this amount would fall if imported was a band between 2 and 5 kg., the sentencing bracket for which is five to eight years. Thus the Deputy Bailiff chose a starting point at the bottom of the band for an estimated quantity of cannabis very near to the top. Rightly, in our view, he emphasized that in selecting the starting point the court had “not rigidly applied the Richards sentencing guidelines.”
47 The second point made by this appellant is that in Le Flock (2), an offender who was caught with 45 plants valued on the basis of street sale at £27,000, was sentenced on the premise that the appropriate starting point was three years. This court has emphasized on many occasions that a precise comparison between the sentences in different cases is usually a vain and fruitless exercise and that this court is concerned not with whether the sentence in a given case fits precisely on a particular and identifiable footfall of a ladder of graduating seriousness, but rather with whether the court which imposed the sentence applied appropriately the principles of sentencing extracted from other cases in which this court has laid down guidelines. As has been said often in this and the neighbouring jurisdiction, sentencing is an art and not a science. Moreover, it is pertinent to point out that Le Flock was a case in which the sentence was imposed before the Richards guidelines were published.
48 We have considered the circumstances of this appellant. We have borne in mind his personal circumstances, including the fact that he has no drug-related convictions, that he has not previously been sentenced to a period of imprisonment and that since his incarceration he has become the father of a child. We have borne in mind too that his plea of guilty entitled the Royal Court to give a significant discount in sentence, albeit not a full discount since the evidence against him was overwhelming. We conclude that the five-year starting point adopted by the Royal Court was proper and we can find no fault in the two-year deduction from that starting point given by the Royal Court to reflect those matters which we have identified above. Accordingly, the three-year sentence must stand and this appeal must be dismissed.
49 The appellant Hardy was, like the appellant Marsh, a man with no previous convictions for drugs and someone who had not previously been sentenced to imprisonment. We can see no reason to distinguish between these two appellants for the purposes of assessing a starting point and accordingly we uphold the five-year starting point in his case. Unlike his co-appellant, he contested the indictment. He was therefore not entitled to a discount for sentence which the appellant Marsh received. We have carefully considered every aspect of his case but can find no reason to
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reduce the sentence of 4½ years imposed by the Royal Court. His appeal must also be dismissed.
50 We turn finally to the sentence of three years’ imprisonment passed on the appellant Fallaize. Miss Roland’s primary submission was that the five-year starting point was too high. Although we do not accede to some of her arguments in support of this proposition, whose validity we have considered above in other contexts, nonetheless it is a fact that the sentencing band in Richards (6) into which on the evidence of the Drug Squad officer the cannabis found at Tower Hill fell, is a lower band than the one we have identified and described in dealing with the appeals of Marsh and Hardy.
51 The relevant sentencing band in Fallaize’s case is the lowest band and relates to up to 2 kg. of cannabis. It is linked to a sentencing bracket of between three and six years. Even if the court were to accept the maximum weight for cultivation attested by the Drug Squad officer and if, contrary to the approach we have suggested above, no allowance is made for the possibility for example of wastage or inexpertise by the grower, the maximum weight is still only slightly in excess of the halfway point in this bracket. Nonetheless, the starting point selected by the Royal Court is near to the top end. We take the view that the starting point should have been three years for this appellant, not five years.
52 We cannot ignore the fact that he is a man with a large number of previous convictions, including offences for drugs, and that he has been sentenced to many different punishments, including cautions, bind-overs, fines, probation, youth detention and custody. Moreover, having read the medical report, we are not persuaded that the cultivation of cannabis in his case had much to do with his back problem for which he was being treated with dihydrocodeine on prescription from his doctor. Indeed, it is not without note that Miss Roland did not mention this aspect when she dealt with the appellant’s personal mitigation.
53 On the other hand, it is to his credit that the appellant pleaded guilty and, although the evidence against him was overwhelming, the Royal Court considered that a discount for his plea was appropriate. All things considered, we take the view that the appropriate sentence for this appellant is one of two years’ imprisonment. His appeal against sentence is allowed to that extent, and the sentence passed by the Royal Court varied accordingly.
Orders accordingly.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR 1