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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Appeal Against Sentence by Arber Ketuka (High Court of Justiciary) [2025] HCJAC 25 (13 June 2025)
URL: http://www.bailii.org/scot/cases/ScotHC/2025/2025hcjac25.html
Cite as: [2025] HCJAC 25

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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 25
HCA/2025/000068/XC
Lord Doherty
Lord Clark
OPINION OF THE COURT
delivered by LORD DOHERTY
in
APPEAL AGAINST SENTENCE
by
ARBER KETUKA
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: A Ogg, sol adv; MTM Defence Lawyers, Falkirk
Respondent: M Way, AD (ad hoc); Crown Agent
13 June 2025
Introduction
[1]
The appellant pled guilty under section 76 procedure to the production of cannabis
contrary to section 4(2)(a) of the Misuse of Drugs Act 1971 and to being concerned in the
supplying of cannabis contrary to section 4(3)(b). Both offences were committed between
27 April 2023 and 22 June 2023. The appellant farmed cannabis plants in two adjacent first
floor flats in Falkirk. He was paid £200 a day for doing it. A connecting opening had been
2
made in a supporting wall between the flats to facilitate this. Every room in the flats was
used for cultivation. There was extensive lighting, ducting, ventilation and watering
equipment, including sheeting and hosing. When the police discovered the operation there
were 180 plants, which had the potential to produce 15 kilograms of high quality cannabis
bud. The maximum value of the cannabis likely to be produced by the plants was £172,800.
On arrival of the police the appellant fled by accessing the roof of the property and climbing
down from there to the street. The appellant is an Albanian national. Prior to the
commission of these offences he had been residing in London.
The sheriff's sentence
[2]
The sheriff had regard inter alia to the guidance provided in Lin v HM Advocate 2008
JC 142 and to the Sentencing Council for England and Wales Sentencing Guideline for
Production of a controlled drug/Cultivation of cannabis plant. Lin indicated that the starting
point for "gardeners" involved in relatively large scale operations ought ordinarily to be in
the range of 4 to 5 years' imprisonment. In terms of the Sentencing Guideline, the appellant
had a significant role rather than a lesser role, and the operation was on an industrial scale,
either category 2 or category 1. The sheriff selected a headline in cumulo sentence of
42 months' imprisonment which she reduced to 32 months and 2 weeks because of the
utilitarian value of the plea of guilty. She backdated that sentence to the date of the
appellant's remand in custody, 5 November 2024.
Submissions for the appellant
[3]
The headline sentence is excessive. In Lin the court observed in relation to the 4 to
5 year starting point (para [11]):
3
"Although this range appears to be higher than that currently set in England (where
the cases cited to us tend to suggest a starting point of 3 years) we consider that the
need to discourage a new development in this jurisdiction justifies that difference."
The commercial production of cannabis in Scotland is no longer a new development. That
factor could not now justify higher sentences than in England and Wales. Moreover, since
Lin the Sentencing Guideline had been issued. In terms thereof the appellant ought to be
viewed as having a lesser role, or a role somewhere between a significant role and a lesser
role. For those reasons the court may wish to consider referring the case to a court of three
judges where the continued applicability of the guideline range in Lin could be considered.
Besides, Lin was a more serious case where there had been 849 plants.
[4]
So far as the English Sentencing Guideline is concerned, the quantity of drugs
involved here places the appellant in category 2, not category 1. The range for significant
role category 2 cases is 2 years 6 months to 5 years and the starting point is 4 years. The
range for lesser role category 2 cases is 26 weeks to 3 years and the starting point is 1 year.
[5]
In R v Andi Toromani [2023] EWCA Crim 1302 Mr Toromani had looked after
197 plants capable of producing 10.87 kilograms of cannabis with a maximum value
of £58,360. The Court of Appeal considered that his involvement fell between a significant
role and a lesser role, and that the amounts produced placed the harm in category 2. The
appropriate headline sentence was 3 years' imprisonment, which was reduced to 2 years
3 months because of a guilty plea.
[6]
The appellant's role was less significant than Mr Toromani's. His sentence should
also be compared to sentences passed on five men in Jedburgh Sheriff Court in January this
year for being concerned in the production or supplying of cannabis in Galashiels. The
drugs involved there, which were cultivated in two nearby properties, were said to have a
4
street value of up to £2.4 million. All of the accused pled guilty and their sentences ranged
between 18 months and 28 months.
[7]
All of these considerations suggested that the headline sentence of 42 months for the
appellant is excessive.
Decision and reasons
[8]
The appellant pled guilty to two serious offences. The sentence passed was an
in cumulo sentence for both offences. The issue is whether that in cumulo sentence was
excessive.
[9]
Lin remains a guideline judgment for gardeners concerned in relatively large scale
production operations. The quantity of drugs there (849 plants) was higher than here, but so
was the headline sentence of 5 years. We accept that the relatively large scale production of
cannabis is not now a new development in Scotland. While that factor may no longer justify
higher sentences being imposed here than in England, the need for deterrence remains given
the current prevalence in Scotland of such large scale operations. It is also worth recalling
that Lin was decided during the period (between 2004 and 2009) when cannabis was
classified as a class C drug, whereas it is now a class B drug, and that greater harm is
associated with class B drugs than with class C drugs.
[10]
Turning to the Sentencing Council Guideline, and culpability, there are factors
pointing to the appellant having a significant role. There was an expectation of a significant
financial advantage - payment of £200 a day. The appellant must have been well aware of
the scale of the operation. Moreover, he seems to have been trusted to be in sole charge of
its day-to-day running. On the other hand, there is no indication he had any influence on
5
those above him in the chain. Weighing these factors, we think it is right to treat him as
having a significant role.
[11]
Category 1 harm involves an "operation capable of producing industrial quantities
for commercial use". Category 2 harm occurs where there is an "operation capable of
producing significant quantities for commercial use". In Toromani the court considered the
operation to be "high up the scale of category 2 cases". The plants there were expected to
produce a total of 10.84 kilograms of cannabis with a maximum value of £58,360. Here, the
harvest could have been 15 kilograms, the plants were of higher quality, and the maximum
street value was £172,800. If the harm is not category 1 it is at the top of the category 2 scale.
[12]
We have not obtained any assistance from the information given to us about the
Jedburgh Sheriff Court cases. We do not have the narratives for those cases or details of any
mitigation which there may have been, and we do not know what the headline sentences
were.
[13]
In the whole circumstances we are not persuaded that a headline sentence of
42 months was excessive. It is 6 months below the bottom of the range of starting points in
Lin, and 6 months below the starting point for a significant role category 2 harm case. It is
only 6 months more than the headline sentence in Toromani. Culpability here was no less
than in Toromani and the harm here was greater.
[14]
Since we are satisfied that the sentence here accords with the guideline in England
and Wales, it is not necessary for the determination of this appeal for it to be referred to a
larger court where the continued applicability of the guideline range in Lin might be
considered.
[15]
For these reasons the appeal is refused.
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