This offence is subject to statutory minimum sentencing provisions.
The court should determine the offender's culpability (role) and the harm caused (quantity) with reference to the tables below.
In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, or where the level of the offender's role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender's culpability.
Culpability demonstrated by the 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 buying and selling on a commercial scale
- Substantial links to, and influence on, others in a chain
- Close links to original source
- Expectation of substantial financial or other advantage
- 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
- Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender's own habit), 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, grooming and/ or control
- Involvement through naivety, immaturity or exploitation
- No influence on those above in a chain
- Very little, if any, awareness or understanding of the scale of operation
- Expectation of limited, if any, financial or other advantage (including meeting the offender's own habit)
Harm
In assessing harm, quantity is determined by the weight of the product. Where the offence is supply directly to users (including street dealing or supply in custodial institutions), the quantity of product is less indicative of the harm caused and therefore the starting point is not solely based on quantity. The court should consider all offences involving supplying directly to users as at least category 3 harm, and make an adjustment from the starting point within that category considering the quantity of drugs in the particular case.
Indicative quantities of the most common drugs, upon which the starting point is to be based) are given in the table below. Where a drug (such as fentanyl or its agonists) is not listed in the table below, 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. There will often be no precise calculation possible, but courts are reminded that in cases of particularly potent drugs, even very small quantities may be held to be equivalent to large quantities of the drugs listed.
Category 1
- Heroin, cocaine - 5kg
- Ecstasy - 7,000 tablets*
- MDMA - 5kg
- LSD - 250,000 squares
- Amphetamine - 20kg
- Cannabis - 200kg
- Ketamine - 5kg
- Synthetic cannabinoid receptor agonists (for example 'spice') - very large quantity indicative of an industrial scale operation
Category 2
- Heroin, cocaine - 1kg
- Ecstasy - 1,300 tablets*
- MDMA - 1kg
- LSD - 25,000 squares
- Amphetamine - 4kg
- Cannabis - 40kg
- Ketamine - 1kg
- Synthetic cannabinoid receptor agonists (for example 'spice') - large quantity indicative of a commercial operation
Category 3
Selling directly to users
OR
Supply of drugs in a custodial institution
OR
- Heroin, cocaine - 150g
- Ecstasy - 200 tablets*
- MDMA - 150g
- LSD - 2,500 squares
- Amphetamine - 750g
- Cannabis - 6kg
- Ketamine - 150g
- Synthetic cannabinoid receptor agonists (for example 'spice') - smaller quantity between categories 2 and 4
Category 4
- Heroin, cocaine - 5g
- Ecstasy - 13 tablets*
- MDMA - 5g
- LSD - 170 squares
- Amphetamine - 20g
- Cannabis - 100g
- Ketamine - 5g
- Synthetic cannabinoid receptor agonists (for example 'spice') - very small quantity
Note - where the offence is selling directly to users or supply in a custodial institution the starting point is not based on quantity - go to category 3
*Ecstasy tablet quantities based on a typical quantity of 150mg MDMA per tablet[1]
Step 2 - Starting point and category range
Having determined the category at step one, 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. A case of particular gravity, reflected by multiple features of culpability or harm in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.
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 offender's role.
Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders and that for Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 186 to 194 of the Equal Treatment Bench Book.