England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200800156/A1 Royal Courts of Justice Strand London, WC2A 2LL
		18th March 2008

1. MR JUSTICE GRIFFITH WILLIAMS: On 25th September 2006 the Diamond Jubilee Hotel in Rhondda Valley was sublet. Its outward boarded appearance thereafter belied what was happening inside. Between 25th September 2006 and 1st April 2007 it was converted into a well equipped and sophisticated factory for the production of cannabis. When police officers searched it on 1st April 2007 they found over 200 square metres of floor space, spread over three floors and a cellar being used for the cultivation of cannabis. There were 160 600 watt growing lamps and 13 100 watt extractor fans. There were over 3,000 cannabis plants in various stages of growth. There were nutrients, water butts, water pumps and over 30 bags of compost. Power supply was gained dangerously by direct access from the mains supply. Between 15th November 2006 and 2nd April 2007 electricity which would have been billed at over £25,000 had been used.
2. The forensic science service analysed a sample of the plants. There was a potential yield of between 127 and 171 kilograms from plants found growing at that time. The officer revealed that yield as being worth somewhere between £635,000 to a little over £2 million; the lesser sum being the wholesale price and the greater sum being the retail price. There was clear evidence that the cannabis had been cultivated for some time because on 30th January 2007, Rhondda council staff were called to recover over 80 black bin bags which had been dumped outside a house. Those bags were packed with cannabis leaves and contained letters addressed to occupants of the Diamond Jubilee Hotel.
3. On the following day a further 15 bags of cannabis leaves were recovered from the same site. On 2nd April 2007 100 bin bags were recovered from a lay-by in Mountain Ash. On 4th April another 40 bin bags full of discarded cannabis leaves were recovered from the side of the road, near the crematorium in Mountain Ash. So, in total, more then 235 black bin bags with cannabis leaves had been dumped in and around the Rhondda Valley area.
4. The appellant, who is 41 years old, has no relevant previous convictions. He was seen walking towards the hotel when police officers arrived on 1st April to search it. He was asked to sit in a police vehicle from where he used his mobile telephone to alert those inside the building of the police presence. He was arrested and in due course he pleaded guilty in the Crown Court at Cardiff to offences of being concerned in producing cannabis (count 1) and abstracting electricity (count 2).
5. There was a basis of plea, which was accepted by both the prosecution and the sentencing judge. It reads as follows:

"2. The defendant accepts that in scheme of this enterprise he was not one of the growers.

3. The defendant maintains that he was employed by the main perpetrators in this case to perform certain specific tasks; a. To buy, in accordance with shopping lists provided to his employers, equipment and food to the persons who were growing cannabis in the hotel.

b. To use money provided to him for the purpose of making the purchases. He was required to keep the bills in order to satisfy the employers that he was spending the money for their purposes.

c. To drive any of his employers, or their immediate staff above him, to the hotel if required. This was the case on the day of his arrest.

d. To collect cannabis which had been grown at the hotel and to deliver it, usually in the London area, to wherever he was told to deliver it.

4. The defendant had not received large sums of money arising out of the sale of drugs.

5. This was a much larger enterprise of which he was merely an employee, albeit higher up the chain of command than the growers."

6. On 17th December 2007 he was sentenced by His Honour Judge Curran to five-and-a-half years' imprisonment on count 1, and to a concurrent sentence of 18 months' imprisonment on count 2. He appeals by leave of the Single Judge. He was sentenced four days before a different constitution of this Court considered the consolidated appeals of R v Xiong Xu & Ors [2007] EWCA Crim 3129, in which the appropriate levels of sentence in cases of large-scale cultivation and production of cannabis were considered. In the judgment categories of offenders were identified, starting with gardeners or workers. At paragraph 3, the Vice-President Lord Justice Latham said this:

"The hierarchy above the workers is likely to be as follows. There will be those who play a greater part in the operation, making arrangements for the plants to be brought in, and the crop to be distributed. They may help to run more than one operation and be involved in making payments, such as rental payments, albeit again on instructions from those running the operation. They could be described as managers. There will then be those who have played a part in setting up the operation, for example obtaining the premises, workers and equipment with which to carry out the operation and can be described as organisers. Finally there will be those who control a substantial number of such operations."

Later at paragraph 6, after emphasising that it was not a guideline judgment, the Vice-President said:

"The starting point for managers will be somewhere between 3 and 7 years depending on the level of their involvement and the value of the cannabis being produced."

We emphasise those words.

7. The first consideration is accordingly a determination of the category of offending in the appellant's case. On the basis of his plea, he was a manager but on any view of the facts, he was heavily implicated in the operation. It is not without significance that his bank account was used not only to buy the equipment but also to transfer large sums of money from this jurisdiction to Vietnam for the benefit of the organisers. While he was not an organiser he clearly was more than just a manager. While there was no evidence that he was highly remunerated for his work, Mr Horton concedes that he has received payment and a significance part of that payment, it would appear, was the clearance by the organisers of his gambling debts.
8. This Court is grateful to Mr Horton for the very careful and moderate way in which he has presented the appellant's case. We were referred, as was the sentencing judge, to R v Judd [2002] 2 Cr App R(S) 8, R v Liljerous & Alderson [2004] 1 Cr App R(S) 81 and R v Nguyen [2007] EWCA Criminal 573. We observe that none of those decisions was concerned with production on the scale of the present case. Indeed the scale of production in the present case is at least six times, both in terms of number of plants and the wholesale value of the cannabis produced, than the most serious of the cases which we have considered of the consolidated appeals in R v Xiong Xu & Ors. That was concerned with the production of cannabis worth some £500,000 on the street. In that appeal the appellant was a worker. The other appeals were concerned with no more than 500 plants, and a factory in which there were no more than 500 plants cultivated.
9. The Vice-President made it clear, in paragraph 6 of the judgment, to which we have referred earlier, that the starting point must reflect the level of production. In our judgment the appellant's offending, even as a manager was on a far more serious scale than that of the managers in the cases to which we have referred. In our judgment the sentence of five-and-a-half years' imprisonment, which reflects the starting point of some 8 years, was entirely appropriate for offending as serious as this. The appeal against sentence is therefore dismissed.