England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT HARROW CROWN COURT LEEDS CROWN COURT SHEFFIELD CROWN COURT
Mr Recorder Popat Miss Recorder Ellis QC His Honour Judge Hoffman His Honour Judge Moore
T20100339 T20090538 T20100561 T20100230

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

Lord Justice Hughes :

1. In Xu [2007] EWCA Crim 3129; [2008] 2 Crim App R (S) 50 at 308 this court considered the general level of sentencing for large scale commercial production of cannabis. The present four cases require us to consider sentencing in cases of smaller scale, but well planned and resourced, cannabis cultivation operations. Often, but not always, they may be carried on in the defendant's home.
2. The cultivation methods described in Xu are readily usable on this scale. They may be operated in a single room, or loft or garage, just as they may be installed, as in Xu, in an industrial unit, a workshop, or an unoccupied house given over entirely to cannabis. The precise methods used will no doubt vary somewhat, but they are likely to include the essential features of hydroponic cultivation and intensive artificial lighting. They may well involve the use of some or all of the following apparatus: pumps for dispensing water/nutrient (although hand watering is also effective, if more time consuming), growing medium such as rockwool or similar, timers for the lighting in order to accelerate growth and to meet the differing requirements for light and dark at the different stages of plant life, insulation and light-reflecting paint and/or materials, air circulation/ventilation equipment, fume extraction machinery, temperature and humidity controllers, pH measuring equipment for the nutrient mixture, sometimes carbon dioxide supply.
3. The object is a crop of flowering tops of the female plants, usually of the kind known as sinsemilla, which is to say without seeds, achieved by having an all-female population. This herbal, not resinous, material is to be contrasted with imported herbal cannabis, because it is significantly stronger. The non-scientific expression "skunk" is often applied to it, particularly where it is a variety with high odour. Cannabis is an annual plant, so that its life cycle ends with flowering and the production of new seeds. When grown intensively indoors one, or sometimes two, crops can be obtained from a plant before it passes to senescence and dies, and a crop takes (generally speaking) something of the order of four months from the planting of the seed to harvest, or about three months from the seedling stage. Plants in the flowering stage have different lighting needs from those at the germination or growing stage, so either the lighting regime in a single space is altered or, if more continuous production is desired, different lighting regimes may be provided in different rooms or areas; this may well be indicated by the presence of plants at different stages of development in separate areas. Yield may vary according to the type and size of plant, how long left they are left before harvest, and the cultivation methods (for example spacing), but from the evidence in the cases before us seems likely to be in the general region of about one to one-and-a-half ounces (about 28-40g) per fully matured plant. We recommend that such estimates be provided in these cases.
4. The principal psycho-active ingredient of cannabis is THC (tetrahydrocannabinol). Recent research commissioned by the Home Office for the Advisory Council on the Misuse of Drugs reported that the mean THC concentration in sinsemilla seized was (albeit with a wide range) approximately double that of imported herbal cannabis and about three times that of cannabis resin. Correspondingly, the level of cannabidiol (CBD), which it is thought possible may moderate the effect of THC, is very low in herbal cannabis, including sinsemilla, by comparison with cannabis resin. The Advisory Council reported in 2008 that sinsemilla now accounts for a large majority of cannabis seizures (about 80%, compared with about 15% resin and about 2% imported herbal cannabis). As the Council observed, the potential overall effects of the drug depend not simply on potency but on a combination of potency and quantity taken; users may need much less sinsemilla than less potent forms, or the extra potency may mean greater effects. Natural market forces mean that sinsemilla attracts a significantly higher price than less potent forms of cannabis.
5. Production of cannabis on the kind of scale we are considering in these cases is far from the equivalent of simple possession of the drug. Whatever may be the position in the different case of a plant or two in the garden, production of the kind here under discussion will almost inevitably call for a custodial sentence. It involves not simply possessing, but creating, a drug which it is illegal to have, and this kind of intensive cultivation involves doing so in some quantity. There is, as this court remarked in Herridge [2005] EWCA Crim 1410; [2006] 1 Cr App (S) 45 at 252, a significant element of calculated defiance of the law. There will typically have been a substantial investment in the crime; in one of the cases before us, in no way out of the ordinary, the defendant volunteered that he had spent about £900 on equipment. Cannabis for individual use commonly changes hands in quantities of one eighth, one quarter or one half of an ounce (3.5, 7 or 14 grams), although of course supplies may be in larger quantities. The cases before us, which do not appear in any way unusual, involve operations likely to produce not less than 1 Kg (35 ounces) and sometimes quite a lot more. A defendant who embarks upon such cultivation, even exclusively for his own use, is avoiding the risk of being caught buying on the open market and making available to himself large quantities of strong cannabis. The total drug available in the community is appreciably increased by these operations.
6. Typically in this kind of case the question will arise what use is to be made of the cannabis produced. First, it is clear that even when it is genuinely for the exclusive use of the defendant, the custody threshold is passed. Second, an element of supply equally clearly makes the offence more serious. Third, an operation which is really a commercial one is more serious still.
7. When considering the second group of cases, care needs to be taken with the oft-used expression "social supply". This seems to us to be of little use as a definition for sentencing purposes because it covers a wide range of activity. In a different, but related, context, two friends who make a joint purchase of a small quantity of drugs for their evening out together will often be involved in a supply, one to the other, in a social context, but it may be a wholly technical supply and it may be possible to treat it essentially the same as possession. More serious is the man who makes himself the purchasing agent for a number of friends, also likely to be labelled 'social'. Some way removed from those situations is the drug dealer whose customers are friends who buy from him. In his case neither the fact that they are friends, nor the fact that they are existing users of the drug will normally provide any significant mitigation. Most drug purchasers are existing users; that is why they want the drugs. It makes good sense for a drug supplier to deal with friends whom he can trust rather than with strangers he cannot.
8. Cultivators of cannabis on the kind of scale we are here considering are highly likely to spread their product wider than their own use. Some will genuinely grow it exclusively for their own use. More will use some of it themselves and supply the rest to others. That is likely, given the quantities involved. They may sell it, or they may circulate it amongst friends and acquaintances, but circulation amongst friends on a regular basis is unlikely to be wholly gratis, whether the consideration is money or something else, given the investment, effort and risk involved, and, even if it is, the offence is the more serious as a result. Even at the lowest level of supply as part of hospitality to visitors (not amounting to creating the cannabis equivalent of a "crack house"), the cultivation is further widening, and socialising, the use of an illegal drug and making it available in circumstances where the risk of detection is reduced. A combined venture to cultivate for a group of associates sharing the cost involves supply and is usually more serious than the case of hospitality. All supplies make the offence more serious; there is a sliding scale of gravity. Cultivation involving the prospect of frank sales for profit is at the top, and mere occasional hospitality at the bottom.
9. The proper inference as to what the cultivation entailed and what would be likely to happen to the product depends on the facts of each case. In most cases, and not only where the plants have not as yet been harvested, it will not be possible to frame a count of possession of identified material with intent to supply. The issue must be dealt with by the judge. As with many other offences, care needs to be taken with assertions advanced by way of basis of plea. It hardly needs to be said that the Crown should accept (ie endorse) such a basis only when satisfied that it is proper to do so. To say that there is no evidence to "gainsay" it is rarely discharging the Crown's responsibility; the evidence of the scale of the operation and the implausibility of the explanation may justify the inference that the basis advanced is false whether or not there is independent evidence of actual supply. The Judge is not obliged to accept any basis of plea advanced, even if the Crown does, but if he does not he must say so. If it is not manifestly unfounded, he will normally give the defendant the opportunity to give or call evidence to justify it, if he wishes, on advice, to do so. That does not mean that a Newton hearing will be needed in every, or even most, cases. If, however, the basis of plea is accepted by the judge, then on ordinary principles he must honour it in passing sentence. These are well known rules of general application: see Tolera [1999] 1 Cr App R 29 and Underwood [2005] 1 Cr App R 13 at 178.
10. We have helpfully been referred to a large number of decisions of this court upon individual cases of cultivation of this kind. They are necessarily single instances, and it would not be of any assistance to attempt to summarise them all. They generally support the proposition that a significant distinction exists between cultivation which is genuinely for the exclusive use of the defendant alone, and cultivation which will lead to some element of supply. Both will ordinarily involve a custodial sentence, but the latter clearly a longer sentence than the former. For those propositions see for example Evans [2000] 1 Cr App R (S) 107, Herridge (2005, supra), and Labbett [2010] EWCA Crim 1819.
11. In Dibden [2000] 1 Cr App R (S) 64 the court's judgment had adverted to the possibility of analysing these cases into four categories, growing exclusively for own use, growing for self and friends, growing for self and for sale to friends and growing on a massive scale for commercial sale. In that case, the court was concerned with supply to associates for money and upheld a sentence of 21 months on plea of guilty. Whilst there will no doubt be cases of each of the descriptions there used, we are satisfied that it is not helpful to attempt to draw a hard line between differing levels of supply below the operation which is simply for profit. Rather, the courts should recognise the sliding scale of supply short of that case, to which we have adverted in paragraph 8 above. We agree with the observation of this court in Herridge that the critical distinction is now recognised to be between those operations which are genuinely wholly for the defendant's own use, and those which will entail a degree of supply.
12. For the frankly commercial operation the sentence will plainly be significantly longer and will approach the Xu range. We observe, for example, that in Sheen [2007] EWCA Crim 1255 this court dealt with a home-based cultivation which was of a size not far short of some of the industrial building cases. It involved some 159 plants and an estimated yield of 14 Kg, worth something in the region of £40,000 at street level. A sentence of four years on plea of guilty was upheld.
13. We are aware that the Sentencing Council has before it the task of framing guidelines for a wide range of drug offences. What we say by way of assistance to judges for the present must necessarily be subject to any more general guidelines thus prepared.
14. On the basis of the cases which we have examined, we draw the following conclusions. For cultivation short of the industrial such as contemplated by Xu but carried out on the kind of scale which we have described in paragraphs 2 and 3 above,

i) where the cultivation will genuinely involve no element of supply of any kind, the sentence after trial is likely to be in the range 9 to 18 months, depending on the size of the operation, and the personal history of the defendant;

ii) where the cultivation is for the defendant's own use and is not a frankly commercial operation for profit, but will involve supply to others, the sentence after trial is likely to be in the range 18 months to 3 years; where any individual case will come within this range will depend on, inter alia, the scale of cultivation, the investment made, the number of parties involved, the nature of the likely supply and, in the upper reaches of the range, the level of any profit element; a previous history of directly relevant similar offending may take the case above this range.

iii) where the cultivation is a frankly commercial one designed with a view to sale for profit, and whether or not the defendant may use a limited quantity of the drug himself, the sentence will usually be somewhat below the Xu range because of the smaller size of operation, but is likely to be in the general range after trial of 3 to 6 years.

The circumstances, character and any criminal history of the defendant will as always be relevant. Where cultivation is accompanied by unlawful abstraction of electricity, often on a substantial scale, that will ordinarily be an aggravating factor. Adjustment should be made for a plea of guilty in the usual way according to the stage at which it was tendered.

15. We apply those principles to the individual cases before us as follows.

Auton

16. Auton was found to be cultivating cannabis in his garage and loft. The production arrangements were the intensive ones which we have described with lamps, fans, air filters and humidity sensors. There were 49 plants in the two different growing rooms, at different stages of development, with an estimated yield of just over 1 Kg (1100-1200 grams or about 40 ounces), and some 73 grams (two and a half ounces) of sensimilla was found harvested and drying. The estimated crop would have had a street value of somewhere between £5500 and £6500. The judge observed that the quantity involved would make something like 6000 reefers. The defendant entered a basis of plea which the Crown accepted and the Recorder did not reject. It was that the production was principally for the defendant's own use but he had a circle of friends who were cannabis users, to whom he would be likely to supply any excess beyond his own needs, "on a social basis", if he had a good crop.
17. Auton was 27 years old. He was in work. He had 12 previous convictions for offences mostly of dishonesty, which included a single offence of simple possession of cannabis. He was sentenced for stealing cash from his employers and taking their van as well as for the drug cultivation. The inevitable custodial sentence would be his first.
18. The Recorder passed a sentence, upon prompt pleas of guilty, of 15 months for the cannabis cultivation and 3 months consecutive for the other offences. The challenge in this court is limited to the 15 months. Mr Walker-Nolan asks us to say that the likely supply would be social, because it was to friends who were existing users, and that accordingly the sentence ought to have been in the region of 6-9 months. For the reasons which we have explained, that would be an appropriate level of sentence (on plea of guilty) for cultivation exclusively for one's own use. This was not such a case. The likely supply would not be either occasional or simply in the course of hospitality; rather, the defendant would be a significant source of the drug for a circle of users. The sentence passed, expressed to be on the basis of Dibden, is also fairly within the correct range as we have held it to be. The appeal must accordingly be dismissed.

Hindle

19. Hindle had a cultivation unit set up in his loft and used his spare bedroom for drying the product. The cultivation was by the intensive methods which we have described. The necessary electricity was abstracted unlawfully. He said that he had spent £900 on the equipment. There were 37 plants and he admitted that they represented his second batch. There was no estimate of yield, but from 37 plants it was likely to be of the order broadly similar to, but a little less than, Auton's.
20. Hindle was 39. He was a musician with regular work as a freelance tutor, and the Recorder accepted that he was industrious. He had a significant previous conviction for possession of cannabis with intent to supply. He fell to be sentenced also for unrelated but serious offences of possession of child pornography.
21. There was no written basis of plea. The mitigation advanced on his behalf was that the cultivation was all for his own use. The Crown case, as opened, suggested that there seemed to be a lot of equipment if that was the case. The conclusion of the Recorder did not amount to accepting everything that was advanced on behalf of the defendant, but she did sentence him on the basis that there was no evidence of his making money out of the cultivation. The quantity would suggest the likelihood of some circulation, but not, on that basis, for profit. The sentence was 15 months after plea of guilty, consecutive to a further 15 months for the pornography offences. For the same reasons as we have given in the case of Auton, and given the previous conviction, we take the view that the sentence for cultivation was within the proper range. Accordingly the appeal is dismissed.

Vincent

22. Vincent had a cultivation unit established in a bedroom at his home. It was intensive, albeit without automatic watering and relatively unsophisticated. There were 43 plants and the estimated yield was 1.3 Kg (46 ounces), with a street value estimated in the region of £5500. He was 29 and not in work. He had a quite recent previous conviction in 2005 for selling cocaine at street level and had served a sentence of 3 years for it. His written basis of plea accepted that although his initial intention had been to produce cannabis for his own use, he had been out of work for some time and would have supplied some of his product to "close friends and associates". As he told the probation officer, those supplies would have been for money, for the purpose, as he put it, to finance his own use.
23. The judge took as his starting point, independently of the previous conviction, three years imprisonment. He related that to the lowest level in Xu. That was not a sufficient basis for its derivation, since Xu treats that level of sentence as appropriate to mere gardeners in an industrial scale operation. Whilst sentences for the kind of cultivation here in question must be consistent with the levels set out in Xu, there is no direct analogy between a lowest role gardener in a large-scale commercial operation and a man with his own smaller scale hydroponics unit in his home. The judge then reduced the three years to two to recognise the plea of guilty, but added back the year on account of the previous conviction, thus arriving at three years in all.
24. In our view the appropriate sentence after trial would have been about three years, on the basis set out above and allowing for the particularly relevant recent previous conviction. The plea of guilty to production was prompt, but the plea to possession with intent to supply was not. The judge appears to have been willing to make the full reduction of one third, but we do not think the defendant can reasonably claim that. We conclude that the total sentence ought not to have been one of three years but should have been one of 27 months. To that extent the appeal is allowed.

Willis

25. Willis appeared at court jointly charged with his brother with production of cannabis. At the defendant's home was found a two-storey outbuilding with an intensive cultivation unit and 12 plants. There was a separate drying room in which there was some 1.7 Kg of sensimilla ready for use; elsewhere in the outbuilding there was another quarter kilogram, making 1.9 Kg in all. That last quantity had an ordinary street value of around £7000. At his brother's house there was a separate nursery unit where seeds were being propagated and there were some 68 seedlings, some of which of course might have turned out to be male plants which had to be discarded. The brother was in possession of about £3000 in cash.
26. The defendant pleaded guilty promptly, but there was confusion as to the basis of plea. He entered a written basis asserting that the cultivation was exclusively for his own use and that he had been surprised at the size of the crop. The judge had not seen that initially and saw it at an earlier hearing at a point where it was being submitted to him that there ought to be a separate count for possession with intent to supply. The Crown disputed the basis. The judge was asked whether a custodial sentence was likely in any event and he correctly indicated that it was. The tenor of what he said also suggested that there was no occasion for the addition of any separate count, and as a result the Crown did not make that addition. The case was adjourned for reports and returned for sentence some six weeks later when no doubt the judge did not have, as we do, a transcript of the exchange at the first hearing. The written basis of plea was relied upon by counsel in mitigation. The judge did not reject it, nor give the opportunity for the defendant to support it with evidence. He passed a sentence of 18 months, saying that determined efforts to cultivate cannabis, especially with multiple premises, required that kind of sentence.
27. We entirely agree with the judge in a number of respects. First, on any view, this had to be a custodial sentence, even on the written basis of plea. Second, the scale of the operation, especially the separate nursery for seedlings, which require different growing conditions, and the amount of already harvested crop, in our view prima facie justified the very clear inference that this was production with a view to sale of part, if not a large part. On that basis, the sentence of 18 months on plea of guilty would have been wholly unchallengeable. The difficulty is that the basis of plea was tendered and never rejected. The judge's earlier remarks were taken as meaning that the sentence would be the same whether there was a prospect of some supply or not. For the reasons which we have given, that, if it is what he meant, would not have been correct. That does not mean that there has to be a separate count for possession with intent in such cases before the prospect of supply of some, not necessarily identified, product can be inferred. But in this case, at the very least, the correct factual basis for sentence was never confronted. For that reason, and for that reason alone, we have concluded that the sentence should be varied to one of 12 months. To that extent, therefore, this appeal is allowed.