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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Xu & Ors, R v [2007] EWCA Crim 3129 (21 December 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3129.html Cite as: [2008] 2 Cr App R (S) 50, [2008] 2 Cr App Rep (S) 50, [2007] EWCA Crim 3129

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2007

Lord Justice Latham:

1. These applications and appeals have been listed together because they all raise questions as to the appropriate levels of sentencing in cases of large scale cultivation and production of cannabis. This has become a widespread problem. Common to all the cases with which we are concerned, is that cultivation has taken place hydroponically, that is essentially in water, under artificial light requiring a high consumption of abstracted electricity. In large part, the cannabis crop has been of the highest quality, producing what is commonly known as skunk, which is particularly strong. The premises in which the cannabis was growing are private houses or industrial premises appropriately converted if necessary, and extensively equipped with propagating and growing apparatus.
2. Typically in such operations there will be one or more workers (sometimes described as "gardeners") tending the plants in the particular premises, carrying out what might be described as the ordinary tasks involved in growing and harvesting the cannabis. They will usually, but not always, have had little or nothing to do with the setting up of the operation, but will simply be doing their tasks on the instructions of those running the operation. They will often be illegal immigrants, who are being exploited because of their vulnerability; and they may well be paid either nothing, but provided with board and lodging, or paid simply enough for subsistence.
3. 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.
4. These operations are extremely profitable. The value of crops harvested from them can substantially exceed £100,000 per annum. The costs are minimal, as the electricity is usually unlawfully abstracted, and the labour cost of running them is usually minimal for the reason that we have given in a previous paragraph. The fact that these operations are so remunerative means that the court is bound to consider deterrent sentences. Clearly the value of a deterrent sentence may be less in relation to those at the bottom end of the hierarchy, for whom discovery and the threat of deportation are probably the most pressing concerns. But for those with greater involvement, the length of sentence must reflect the fact that they stand to make a substantial profit from their criminal activities.
5. The maximum penalty for production of cannabis contrary to section 4(2) of the Misuse of Drugs Act 1971 and cultivation of cannabis contrary to section 6(2) of the Act, is 14 years imprisonment. It is to be noted in particular that when cannabis was reclassified pursuant to the Misuse of Drugs Act 1971 (Modification) (No 2) Order 2003 (S.I. 2003 No 3201), the maximum penalty on conviction on indictment for production of a Class C drug (to which cannabis had been reclassified) was increased from 5 years to 14 years. This, in our view signalled a clear intention on the part of Parliament that whilst reclassification might result in a review of sentences for personal use, commercial production (and pari passu cultivation) should remain a serious offence carrying substantial penalties. This has been recognised by this court in, for example, Tuckman [2005] EWCA Crim 335 and Kieu Vi To [2006] 2 Cr App R (S) 38 at page 260.
6. We do not intend in this judgment to lay down any guidelines, but rather to indicate the bracket within which some consistency of sentencing can be achieved. We consider that for those involved at the lowest level, the starting point should be 3 years before taking into account any plea of guilty and personal mitigation. This reflects the view of this court in KuangVan Nguyen [2007] EWCA Crim 9. For those who set up and control individual operations, the organisers, the starting point should be 6 – 7 years depending upon the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation: see Jupp [2002] Cr App R(S) 8 and Liljerous and Alderson [2004] 2Cr App (R)(S) 81 at page 486. 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. Severer sentences may be appropriate for those who control a larger number or network of such operations. Nothing we say is intended to relate to non-commercial cultivation or production.
7. With those introductory remarks, we return to the individual appeals.
8. Xion Xu

This applicant pleaded guilty to being concerned in the production of cannabis and on the 31^st August 2007 was sentenced to 4 years imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 139 days spent on remand should count towards sentence, and was recommended for deportation. His application for leave to appeal against sentence has been referred to the full court by the Registrar.

9. On the 13^th April 2007, police officers executed a search warrant at an address in Southampton. The appellant was upstairs. 204 substantial cannabis plants were found, as to which the evidence was that this could produce 13.7kgs of cannabis with a wholesale value of £31,100. It was a sophisticated cannabis factory which the judge described as efficient and highly productive. The prosecution's case was that the applicant was a "gardener". This suggests that the prosecution were putting his participation at the lower end of the spectrum. He is an illegal immigrant, and said that he had been brought to the premises from Liverpool. His job was simply to tend the plants.
10. The judge referred in his sentencing remarks to the fact that commercial cannabis growing was becoming a serious problem in Southampton. He took the appellant's plea into consideration, but as he considered that he was caught effectively "red-handed", he would not give him full credit. He stated that a deterrent sentence was necessary, hence the sentence of four years imprisonment.
11. On behalf of the applicant, it is submitted that such a sentence placed him far too high in the hierarchy and had given him inadequate credit for his plea.
12. In our judgment, the judge, whilst understandably concerned about the proliferation of such operations, passed a sentence after a plea of guilty which was only justified for someone significantly more involved in the running of the operation. The judge was, however, entitled to reduce the discount for plea because of the circumstances. We consider that the appropriate starting point was one of three years imprisonment; and that that could properly be reduced to two years four months for the plea of guilty.
13. We accordingly give leave to the applicant, allow his appeal, and substitute a sentence of 2 years 4 months, with a direction that 139 days spent on remand should count towards his sentence pursuant to section 240 of the Criminal Justice Act 2003. The remainder of the sentence remains undisturbed.

Hoang Nguyen and Hai Hung Nguyen

14. The appellant Hoang Nguyen pleaded guilty before the magistrates to two offences of being concerned in the production of cannabis, and two offences of possessing a controlled drug of Class A (heroine and methadone). He asked for a further offence of being concerned with the production of cannabis to be taken into consideration. He was committed for sentence and on the 13^th August 2007 at the Crown Court at Southampton, he was sentenced to 4 years imprisonment on the first offence of being concerned with the production of cannabis, and 18 months imprisonment consecutive for the second offence. He was sentenced to one month imprisonment concurrent on each offence of possessing a controlled drug, to be served concurrently with the other sentences. He was recommended for deportation. 143 days spent on remand was ordered to count towards his sentence pursuant to section 240 of the Criminal Justice Act 2003.
15. Hai Hung Nguyen also pleaded guilty before the magistrates to an offence of being concerned with the production of cannabis. He was committed for sentence and was sentenced at the same time as Hoang Nguyen to four years imprisonment. Again 143 days spent on remand were ordered to count towards his sentence. He was also recommended for deportation. The first appellant appeals against sentence by leave of the single judge. The second appellant asks for an extension of time in which to make application for leave to appeal against sentence, and applies for leave; both applications have been referred to this court by the registrar. We extend his time, and give leave to appeal.
16. The charges arise out of a search carried out by police on the 21^st March 2007 of a property in Southampton where they found 221 cannabis plants, and three large bin liners of dried cannabis weighing 10kgs. The minimum total value of the cannabis recovered was estimated to be £22,000. Both appellants were on the premises when it was searched and were arrested. The first appellant admitted that he had no passport. He said that he had come to Southampton three or four months previously to help a friend set up the house in which he had been arrested. He admitted that he had the use of a car which was parked outside. 221 cannabis plants were found together with about three large bin liners of dried cannabis. The value of the cannibals was £22,000. As to the second offence of being concerned with the cultivation of cannabis, this related to another address in Southampton where the police found 186 plants. The second appellant's finger print was found on a light bulb there. He admitted going there but only on one occasion. He had been asked to pay the rent. The court was given no details of the offence which he asked to have taken into consideration.
17. As far as the second appellant was concerned, there was no evidence of involvement with any other operation. He was also an illegal immigrant. He said that he had been in the country some two and a half years. The only part he played in the operation was to water the plants occasionally.
18. In his sentencing remarks, the judge referred to the escalation of commercial cannabis growing operations in Southampton. Six addresses had been discovered in 2005 which had risen to 29 addresses in the first six months of June 2007. He concluded that deterrent sentences were necessary. He did not consider that it was appropriate to make any distinction between the two appellants in relation to the count in which they were co-defendants, hence the sentence of four years imprisonment on both. The consecutive sentence of 18 months imprisonment took account the fact that the first appellant was involved in more that one premises.
19. Counsel for both appellants, submit that, once again, the judge's starting point was too high. It equated to six years imprisonment before taking into account the pleas of guilty. It should be noted that in this case, the judge made no express reference to the discount for the plea of guilty.
20. As far as the second appellant is concerned, it is difficult to see how there could be any distinction between him and the appellant Xu (above). In those circumstances we consider that this appeal should be allowed to the extent only that a sentence of 2 years 4 months be substituted for the sentence of 4 years imprisonment. The time spent on remand of 143 days should count towards the serving of the sentence pursuant to section 240 of the Criminal Justice Act 2003.
21. As far as the first appellant is concerned, different considerations apply. The judge clearly concluded that he had played a part in setting up the premises, and that the fact that he had the use of a car indicated that he played some part in the management of the premises. The fact that he was involved, albeit on his own account only on one or two occasions in relation to the second premises, justified a consecutive sentence. In our view, the appropriate sentences in his case on the judge's conclusion on the facts, which were in our view open to him, were 3 years on the first charge and 12 months consecutive on the second charge, making a total of 4 years. The time spent in custody of 143 days should count towards his sentence. To that extent the appeal is allowed.

Nguyen Van Minh

22. On the 8^th June 2007 this appellant, at the Crown Court at Sheffield changed his plea to guilty to conspiracy to produce cannabis and on the 3^rd August 2007 was sentenced to 5½ years imprisonment. The Judge ordered that the period on remand of 140 days should count towards his sentence pursuant to section 240 of the Criminal Justice Act 2003.
23. In the early part of 2007, a group of Vietnamese nationals rented seven properties in total in Sheffield. Six of those premises were extensively altered in order to enable them to be used to produce high grade cannabis. One of the properties, 680, Abbeydale Road was used as accommodation for workers caring for the plants. On the 13^th March 2007, police officers conducting a search of the latter address found a large quantity of plant food and fertiliser and twenty bags containing flowering heads of cannabis plants with a street value of £186,000. Receipts for propagators and electrical equipment were found. Video footage from the stores in question was checked, and the appellant, who had been arrested at the house, was seen buying propagators. He was with a co-defendant, his girlfriend, who was undoubtedly one of the organisers, and who has absconded. The other properties were searched, all of which had been altered to produce cannabis. The total value of the cannabis found was in excess of £500,000.
24. The appellant, who appeals against sentence with leave of the single judge, stated in his basis of plea, which was accepted by the prosecution that whilst he was involved in the purchase and setting up the cannabis growing systems, he did this only in relation to one address, where he further assisted in the potting of the plants. He had no proprietary interest in the equipment or the product. He was not involved in selling the cannabis. Everything he did was on the instruction of others.
25. The judge sentenced him on the basis that he was one of the workers, part of a Vietnamese criminal gang involved in large scale cannabis production. He concluded that the sentences had to contain a deterrent element. Because he had pleaded guilty on the day of trial only, he was given credit of 10%. A co-accused who was sentenced with him, Chung Ho was sentenced to 4½ years, although he had previously been concerned in a cannabis factory in Surrey. The basis upon which the judge justified the higher sentence for the appellant was because of the inference that he was more involved in the organisation of the operation by reason of his connection to his girlfriend.
26. It was submitted on his behalf that there was no proper basis upon which he should have been treated any differently from an ordinary worker. He was only seen on the one occasion to be involved in purchasing equipment. Further, there was unjustified disparity between his sentence and the 4½ years that was imposed on Chung Ho, bearing in mind the fact that the latter had been involved in an earlier operation.
27. In our view, the judge was entitled to conclude that the fact that the appellant's girlfriend was, on the evidence, clearly someone involved in organising the operation placed him significantly higher in the hierarchy than a worker. That was a proper distinction between him and Chung Ho. Because of the very large scale of the operation which had been discovered in this case, although 5½ years was undoubtedly at the top end of the appropriate bracket, this appellant fell into the category of those for whom a significant deterrent sentence was appropriate, and as a result the sentence cannot be said to be manifestly excessive.

Dai Van Mguyen

28. On the 19^th June 2007 in the Crown Court at Wolverhampton, this appellant pleaded guilty on rearrangement of producing cannabis and was sentenced on the 3^rd September 2007 to 3 years imprisonment with a direction that 185 days spent on remand should count towards the sentence pursuant to section 240 of the Criminal Justice Act 2003 and he was recommended for deportation. He appeals against sentence by leave of the single judge.
29. On the 20^th September 2006, police officers came across the appellant acting suspiciously outside a house in Wolverhampton. He was challenged. He jumped over a fence at the side of the house and ran off but was detained a short distance away. The house was searched and was found to be a cannabis factory in which there were 398 plants in the house. The appellant's fingerprints were found on some aluminium foil forming part of the cultivation apparatus. When interviewed, he claimed to have been dropped off at the location by friends and had run away because he was an illegal immigrant. He did however, admit to having been at the address on previous occasions, on one of which he had helped to attach foil to the walls at the request of others. He denied any knowledge of cannabis production.
30. At trial he eventually pleaded guilty on a basis of plea in which he stated that having arrived as an illegal entrant, having been promised work that did not materialise; he was befriended by two fellow Vietnamese who promised him accommodation and food if he would assist them. He did so by putting up foil on walls and thereafter occasionally checking the plants in the premises. He was not involved in any way in either organising the operation or selling the cannabis.
31. The Recorder, in sentencing him, considered that the appropriate starting point was one of 4 years imprisonment, and gave him credit for his late plea of guilty. It is submitted that although the judge was entitled to reduce the credit for a plea because of its lateness, the starting point of four years was too high. In our view, the credit for plea was generous. But there was little to justify the conclusion that the appellant was any more than what we have described as a gardener, in other words at the lower end of the hierarchy. But he did more, albeit only to a modest extent, than simply tend the plants. A starting point higher than 3 years was therefore justifiable. Balancing the relative generosity of the discount for plea against the fact that the starting point may have been too high, we do not consider that it would be appropriate for us to interfere with this sentence; and accordingly the appeal is dismissed.

Ha Thi Pham

32. The applicant was convicted after trial of one offence of conspiracy to cultivate cannabis, one offence of abstracting electricity, and one offence of conspiracy to conceal the proceeds of drug trafficking. On the 18^th May 2007 she was sentenced to 3 years imprisonment for the conspiracy to cultivate cannabis, 9 months imprisonment consecutive for the offence of abstracting electricity, and 9 months imprisonment for the offence of concealing the proceeds of drug trafficking. She renews her application for leave to appeal against sentence after refusal by the single judge.
33. On the 15^th March 2006, police officers executed a warrant at an address in south east London. They found a highly sophisticated industrial scale cannabis operation. Five rooms had been converted containing 474 cannabis plants capable of producing cannabis at a higher strength. The electricity meter had been by-passed and an electric fan had been placed to cool the connector box. The assembly was described as extremely dangerous. In the period between 2004 and 2006 a total of £124,000 was paid into the applicant's bank accounts. And in the period between January 2004 to January 2005, the applicant and Vu, her husband, a co-defendant, were involved in transferring in the region of £136,000 to Vietnam.
34. The applicant and her husband had been living next door to the house in question, which had been rented by them from a friend. They lived together with their 15 month old son and the applicant's 9 year old daughter by a previous relationship. The judge was clearly exercised about the effect a sentence of imprisonment would have upon the children. Vu was sentenced to 6 years imprisonment. It was said that if the applicant was also sent to prison, the 15 month old child would loose both his parents. Nonetheless, the judge concluded that the scale of the cannabis cultivation was such that deterrent sentences were necessary, and that inevitably meant that the applicant had to go to prison. He, however, reduced the overall sentence on her because of her personal circumstances. He was satisfied that she had played a full part in the offences and described her as a determined and intelligent woman. She did not have the benefit of a plea of guilty.
35. In those circumstances, like the single judge, we can see nothing wrong with the sentence the judge imposed. He had no real option but to impose a sentence of imprisonment. And the sentence he imposed of4½ years in total reflected a significant discount on the sentence imposed on her co-accused, justified only by her personal circumstances.
36. This application is refused.

Vinh Van Hoang

37. On the 26^th April 2007 in the Crown Court in Derby, the applicant was convicted of two counts of producing cannabis and one count of possessing cannabis with intent to supply. On the 24^th May 2007 he was sentenced to 5 years imprisonment on each count to be served concurrently with a direction that the time spent on remand should count towards the sentence. He applies for an extension of time in which to renew his application for leave to appeal against sentence after refusal by the single judge.
38. On the 13^th July 2006, the police executed a search warrant at an address in Derby owned by the applicant. They found a hydroponic cultivation system, in which 158 cannabis plants were growing. 41 p`lants were being dried in a rear bedroom; from the freezer five bags containing 2.33 kilos of harvested cannabis were recovered. That had a potential street value of between £26,000 and £29,000.
39. As a result of information given to them, the police went to a house which the applicant's mother owned outside which was a van in which the applicant and a co-defendant were sitting. They were arrested. In the cellar, there was evidence of a dismantled cultivation system. There was also a safe which contained £11,700 in cash. The applicant's own home was searched and substantial items of equipment for cultivation were found, together with a quantity of cannabis plants ready for cultivation.
40. The judge, who had heard the evidence during the trial, concluded that the applicant's part in the enterprise was to provide the premises; he inferred that the operation had started in the basement of the mother's house and had then expanded into the house where the cannabis plants were growing. It followed that he had to be treated as one of the organisers of the scheme. He considered that a deterrent sentence should be imposed. A co-accused, Tun Cong Dinh, who had pleaded guilty, was said by the judge to have been equally responsible, but was sentenced to three years imprisonment to be served consecutively to an existing 3 and a half year sentence. The judge explained that the difference between the two was because of both his plea and the fact that he was already serving a significant sentence.
41. In our judgment, five years was the least that could properly have been imposed for this substantial operation. The apparent disparity between his sentence and that imposed on Dinh was fully explained by the judge, and was justified. Whilst we are prepared to extend time, we dismiss the application.