Appellant: McElroy; Paterson Bell, Edinburgh (for L&G Robertson, Glasgow)

Respondent: Small, AD, ad hoc; Crown Agent

16 October 2013

[1] On 20 May 2013 the appellant was convicted after trial in Glasgow Sheriff Court of two charges. The first was that on 17 May 2012 at an address in Glasgow he produced cannabis, a Class B drug, contrary to the Misuse of Drugs Act 1971, section 4(2)(a), and the second was that on the same date and at the same address he was concerned in the supplying of cannabis contrary to section 4(3)(b) of the same Act. On 13 June 2013 the sheriff sentenced the appellant to 4 years imprisonment in respect of both offences, the sentences to run concurrently.

[2] The facts were that the appellant was the tenant of a flat which was found to have within it substantial cannabis cultivation. The appellant's contention, which the sheriff notes was rejected by the jury, was that he knew nothing of what was going on in the flat as he was not in residence, having allowed a friend to live there. The discovery of the cannabis was made by a uniformed foot patrol who became aware of an extremely strong smell of cannabis in the street, Carmunnock Road, where the flat was situated. They followed the smell to the flat, and when they knocked on the door the appellant allowed them entry. Two others who were present ran off. There was little evidence that anyone actually lived in the flat beyond a mattress and other minimal furniture, but there was substantial evidence of large scale cannabis cultivation throughout the flat, including the two bedrooms. Plants, lamps, nutrients and the like were found. Following a search, 68 growing cannabis plants were found with a potential street value of between £11,560 and £34,680. In addition, 1,396 grams of herbal cannabis were found with a street value of between £5,000 and £11,965.

[3] In relation to sentence, the sheriff stated that he recognized that there were a number of positive features in the appellant's background. He had obtained school qualifications, he had spent time in the army and only left the army on account of ill-health, and he was in employment thereafter. He had a strong work record and employment was available to him. Moreover, he was, for practical purposes, a first offender. Despite those positive features, the sheriff considered that the gravity of the offence was such that the only appropriate disposal was custody. Although the offending occurred on only one day the sheriff pointed out that it involved substantial cannabis production with a very large number of plants at different stages of growth. The sheriff described that as "a day which served to open a window on the commercial operation which existed within the flat".

[4] Counsel for the appellant submitted that the sentence imposed by the sheriff was excessive given the scale of cultivation that was involved and the timescale in the charges of which the appellant was convicted. Those charges related to one day only. Counsel referred to two earlier cases, Lin v HM Advocate 2008 SC 147 and Wei v HM Advocate, 23 April 2010. In Lin the plants were worth £84,900, the offence was committed over 23 days according to the indictment, and a relatively large scale operation was involved. The sentence there was 5 years' imprisonment discounted on account of an early plea. In Wei the cultivation involved 228 plants on a single day, the value was £95,000, and the appellant in that case was sentenced to 31/2 years' imprisonment. The argument made by counsel was that the amounts involved in those cases were substantially greater than in the present case, and in Lin there was the further point that the charges related to a period of 23 days, not 1 day. Wei was, he submitted, a better comparison because it related to one day only.

[5] We note, however, that in both of these cases the persons concerned had arrived in the United Kingdom from China, either claiming asylum or described as a refugee. They appeared to have been brought here by human traffickers, and it is notorious that the position of those brought here in that way is extremely adverse. For practical purposes, they are little better than slaves. Moreover, these individuals were merely tending the plants; they could truly be described as gardeners. In the present case, the appellant was a tenant of the flat where the plants were found. On that basis, his position can clearly be distinguished from that of the appellant in the cases of Lin and Wei. It is plain that the appellant was playing a part that was greater than that of a mere gardener. He was, at the very least, making his flat available, and appeared to have a much more significant involvement than the appellants in those two cases. Furthermore, it can be said that cultivation in the present case was plainly on a commercial and substantial scale, even if it was smaller than that involved in Lin and Wei. We note further that in the courts' opinion in Lin, the Lord Justice General states at paragraph 13 that the appropriate starting point for gardeners involved in relatively large scale operations will ordinarily be in the range of 4 to 5 years' imprisonment. Where within that range, or possibly outwith that range, the sentence should be in a particular case will depend on circumstances. The Lord Justice General noted that the range appeared to be higher than that currently set in England, but the court considered that necessary to discourage a new development within Scotland; that justified the difference.

[6] In our opinion, the sheriff correctly applied the guidance that was given in Lin; the starting point in a case of this sort should have been 4 to 5 years. The sheriff chose 4 years. The cultivation is, as we have said, substantial. The fact that it was on only one day does not appear to us to be of any great significance. As the sheriff indicated, that day served to open a window on the commercial operation which existed within the flat. That observation in our opinion is clearly correct. This operation of cannabis cultivation clearly did not exist only on that day but continued as a substantial commercial operation for considerable periods, both before and after the day referred to in the indictment. For these reasons we are of opinion that the sheriff applied the right approach and was entirely justified in imposing the sentence that he did. The present appeal is accordingly refused.

SM