England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
Mr Recorder Amakye
T20100371 T20100372

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2011

Lord Justice Hughes :

1. This applicant seeks leave to appeal against a sentence of 18 months imprisonment for possession of cannabis with intent to supply.
2. His case was listed for convenience alongside a number of cases of cannabis cultivation, in case they raised related questions. In fact they do not. We have dealt with the cultivation cases in our judgment in Auton & others [2011] EWCA Crim 76. No general question is raised by the present application; accordingly we deal with it separately.
3. The applicant was one of three young men convicted of this offence after trial. The cannabis in question was a box containing 742 grams of sinsemilla cannabis, of the kind whose strong aroma attracts the non-scientific term "skunk". The aroma does not by itself indicate strength, rather than variety, but sinsemilla is usually noticeably stronger than imported herbal cannabis: see Auton & others. Three quarters of a kilogram of this material had a street value of about £4000. The cannabis was taken to a hotel room, apparently booked for the purpose of selling it, but was found before any sale had taken place. The defendant Dhalech organised the booking. Ahmed helped him by providing a driving licence for use as identification. He had been in the room on the afternoon after it was booked, but said that that had been to be with a girlfriend. He admitted using a small quantity of the drug whilst there. A third man, Latif, was proved by his fingerprints on the box also to have been involved.
4. The applicant's proposed arguments are as follows:

i) the recorder was wrong to treat all the defendants as equally involved;

ii) the recorder should have paid attention to the magistrates' court sentencing guideline which suggests a starting point of six weeks for small scale retail supply of cannabis to a consumer, and/or to the report of the Sentencing Advisory Panel on drug offences;

iii) the recorder was wrong to treat the fact that the cannabis was skunk as an aggravating feature;

iv) the recorder should have followed the approach exhibited in Donovan [2005] 1 Cr App R (S) 16 at 65.

v) the sentence was too long given the applicant's youth and previous good character.

5. We regret that we regard none of those arguments as tenable. The recorder had heard a trial of some five days. She was in the best position to assess what inference of fact could properly be drawn and she was entitled to conclude that the three defendants were equally involved in an offence motivated entirely by the desire for profit, particularly since the applicant had told a number of lies when first arrested by the police. The magistrates' guidelines are not relevant to this kind of quantity of drug; it is not a small amount and it would not be appropriate for trial by the magistrates. The Sentencing Advisory Panel did very valuable work, but its reports have no legal force unless and until adopted by the Sentencing Guidelines Council or, now the Sentencing Council. We agree that there is no separate statutory regime for sinsemilla but that does not mean that the nature of the drug is irrelevant; on the contrary it is plainly relevant when, as is accepted here, the cannabis is of a kind which has a much higher value that traditional imported herbal cannabis, or cannabis resin, and the offence is committed for profit. Donovan was a case of a defendant generously dealt with after the judge concluded that notwithstanding his conviction of possession with intent to supply (of a total amount of half a kilogram) any actual supply would have been very limited. This applicant was indeed of good character, and was 21, whilst his co-accused were a few years older and one of them had minor driving and assault convictions, but those facts do not mean that it was unfair to deal with the three defendants on the same basis; on the contrary, when none had any previous drug offence that was perfectly proper. 18 months was a proper sentence after trial for a case of proposed commercial supply. The applicant did not have the mitigation of accepting what he had done; indeed he continued to maintain to the probation officer after conviction the account which the jury had rejected.
6. It follows that despite Mr Kaufman's submissions, this application must be refused.