R v Xiong Xu
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 21 December 2007 |
| Neutral Citation | [2007] EWCA Crim 3129 |
| Docket Number | Case No: 2007/5139/A2, 2007/3123/A3, 2007/3154/A4, 2007/4787/A8, 2007/4637/A7, 2007/5150/A8 (2007/04637/A7) (2007/03154/A4) (2007/03123/A3) (2007/05150/A8) (2007/04787/A8) (2007/06172/A8) |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2007 |
[2007] EWCA Crim 3129
Lord Justice Latham
Mr Justice Jack and
Mr Justice Cranston
Case No: 2007/5139/A2, 2007/3123/A3, 2007/3154/A4, 2007/4787/A8, 2007/4637/A7, 2007/5150/A8
(2007/05139/A2)
(2007/04637/A7)
(2007/03154/A4)
(2007/03123/A3)
(2007/05150/A8)
(2007/04787/A8)
(2007/06172/A8)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Avik Mukherjee (instructed by Norrie Waite & Slater) for the Crown
Matthew Scott, QC (instructed by Knight Poulson, Solicitors) for the Defendant Xiong Xu
MR Barradell (instructed by Norrie Waite & Slater) for the Defendant Nguyen Van Minh
Mark Williams (instructed by Chartwell & Sadlers) for the Defendant Ha Thi Pham Russell Davies (instructed by Roland, Robinson & Fentons) for the Defendant Vin Van Hoang Mr Sukhdev Garcha (Solicitor Advocate) instructed by Salhan & Co) for the defendant Dai Van Nguyen Miss Kate Freemantle (instructed by Peach Grey & Co) for the DefendantHoangNguyen
Miss Russell (instructed by Gammon Pirecy & Gaiger) for the Defendant Hai Hung Nguyen
Hearing dates : 5 th December 2007
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.
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.
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.
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.
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.
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] 2 Cr 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.
With those introductory remarks, we return to the individual appeals.
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.
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.
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.
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.
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.
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
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...
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