Criminal law - Cultivation of cannabis - Sentence length

R v (1) John Auton (2) Lawrence Hindle (3) Glen Vincent (4) Stephen Willis: CA (Crim Div) (Lord Justice Hughes LJ (vice-president), Mrs Justice Eady, Mr Justice Rafferty DBE): 3 February 2011

The appellants appealed against their sentences for offences of cultivation of cannabis. Each of the four appellants had been convicted of small-scale cultivation of cannabis at home.

The methods included hydroponic cultivation and intensive artificial lighting and involved the use of specialist equipment.

Held: (1) For cultivation short of industrial cultivation, as was contemplated in R v Xiong Xu [2007] EWCA Crim 3129, [2008] 2 Cr App R (S) 50: (a) where the cultivation genuinely involved no element of supply of any kind, the sentence after trial was likely to be in the range of 9-18 months, depending on the size of the operation and the personal history of the defendant;

(b) where the cultivation was for the defendant’s own use and was not a commercial operation for profit, but did involve supply to others, the sentence after trial was likely to be in the range of 18 months to three years; where any individual case came within the range depended on, inter alia, the scale of cultivation, the investment made, the number of parties involved, the nature of the likely supply, the level of any profit element and any history of similar offending;

(c) where the cultivation was a commercial one designed with a view to sale for profit, and whether or not the defendant might use a limited quantity of the drug himself, the sentence would usually be below the Xu range because of the smaller size of the operation, but was likely to be in the general range of 3-6 years after trial, Xu considered (see paragraph 14 of judgment).

(2) On that basis, the first appellant’s sentence of 15 months’ imprisonment for an estimated crop of 49 plants with a street value of £5,500-£6,000, where he pleaded guilty on the basis that it was principally for his own use with supply to friends, was within the correct range (paragraphs 16-18).

(3) The second appellant’s sentence of 15 months’ imprisonment for a similar crop, after a guilty plea and on the basis that he made no profit from it, was also within the correct range (paragraphs 19-21).

(4) The third appellant’s sentence of three years’ imprisonment for a similar crop with supply to friends, ought to have been one of 27 months (paragraphs 22-24).

(5) The fourth appellant’s sentence of 18 months’ imprisonment on the basis that the cannabis was for his sole use should have been one of 12 months.

Appeals allowed in part.

B Walker Nolan (instructed by Bett & Co) for the appellant Auton; M Taylor (instructed by LatifeAdams) for the appellant Hindle; M Miller (instructed by Tates) for the appellant Vincent; R N Sheldon (instructed by Foyes) for the appellant Willis; C Cartwright (instructed by CPS) for the Crown in Auton, Hindle and Vincent: I West (instructed by CPS) for the Crown in Willis.