R v Auton (John) and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GRIFFITH WILLIAMS,Lord Justice Hughes |
| Judgment Date | 03 February 2011 |
| Neutral Citation | [2010] EWCA Crim 3039,[2011] EWCA Crim 76 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201004933 A8 201006048 A6 201004903 A2 201004254 A1,No. 2010/04933/A8 |
| Date | 03 February 2011 |
[2010] EWCA Crim 3039
Before: Mr Justice Griffith Williams
and
Mrs Justice Sharp DBE
No. 2010/04933/A8
IN THE COURT OF APPEAL CRIMINAL DIVISION
Mr B Walker-Nolan appeared on behalf of the Appellant
Friday 10 December 2010
MR JUSTICE GRIFFITH WILLIAMS:
We propose to adjourn this appeal. We direct that it be listed before a three judge constitution either with the Vice-President or at his direction. The Crown must be represented. We will invite the three judge constitution to have particular regard to R v Dibden [2001] 2 Cr App R(S) 64, R v Herridge [2006] 1 Cr App R(S) 45, R v Labbett [2001] EWCA Crim 1819, R v Worrall [2009] EWCA Crim 1985, and R v Prosser [2009] EWCA Crim 2797.
We direct that the appellant and the respondent provide skeleton arguments for consideration by the three judge court with a view to assisting that court as to whether or not there is a discernible sentencing pattern in these cases.
We direct that the appeal be listed at the very earliest opportunity next term.
Are there any other matters which you would like to bring to our attention?
MR WALKER-NOLAN: No, thank you, your Lordship.
MR JUSTICE GRIFFITH WILLIAMSMR JUSTICE GRIFFITH WILLIAMS: Thank you very much indeed.
[2011] EWCA Crim 76
Before: Lord Justice Hughes Vice President of the Court of Appeal
Criminal Division
Mr Justice Eady
and
Mrs Justice Rafferty DBE
Case No: 201004933 A8 201006048 A6 201004903 A2 201004254 A1
T20100339 T20090538 T20100561 T20100230
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
Mr B Walker Nolan (instructed by Bett & Co.) for the Appellant J Auton
Mr M Taylor (instructed by LatifeAdams) for the Appellant M Hindle
Mr M Miller of Tates for the Apellant G Vincent
Mr R N Sheldon (instructed by Foyes) for the Appellant S Willis
Mr C Cartwright (instructed by Crown Prosecution Service) for the Crown in all cases, Mr I West also for the Crown in Willis
Hearing dates: 12 th January 2011
Lord Justice Hughes:
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.
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.
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.
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.
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.
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.
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...
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