Sentencing in Cases of Small-Scale Cannabis Production

Article excerpt

Auton and Others v R. [2011] EWCA Crim 76 (Hughes LJ, Eady and Rafferty JJ)

INTRODUCTION

The Court of Appeal recently heard a joint appeal from four defendants involved in small-scale production of cannabis. Having already taken the opportunity in Xu (1) to suggest general sentencing brackets where large-scale commercial production of the class B drug was concerned, the court here set out appropriate levels of sentencing where the cultivation fell short of industrial. (2)

The cultivation methods employed in such cases tend to be in line with those used in commercial production, albeit on a smaller scale. The crops are often cultivated in the defendant's own home and the use of hydroponic techniques (3) and intensive artificial lighting is commonplace. Such methods allow growers to intensively cultivate the plants indoors and to strictly control the growing environment in order to maximise their yield of the high potency heads of the flowering female plant. This herbal cannabis is often colloquially referred to as 'Skunk'.

The production and cultivation of cannabis are offences contrary to sections 4(2) and 6(2) of the Misuse of Drugs Act 1971 respectively. Both offences carry a maximum sentence of 14 years imprisonment and/or an unlimited fine. (4)

THE FACTS

Auton

Auton had intensively cultivated 49 cannabis plants in his garage and loft. On analysis the estimated yield of these plants was just over one kilogram. He was additionally found in possession of 73 grams of the harvested heads of the female plants. The total street value of his crop was thought to be between 5500[pounds sterling] and 6500[pounds sterling]. Auton pleaded guilty and indicated that he had cultivated the cannabis primarily for his own use but that he would also be likely to supply the drug to friends if he had a good crop. The

Recorder sentenced him to 15 months imprisonment in respect of the cannabis cultivation.

Hindle

Hindle ran an intensive cannabis cultivation operation from his loft with a separate drying area located in his spare bedroom. He was found in possession of 37 plants and admitted that this was his second crop. While there was no estimate of the potential yield involved the court considered that this was likely to be in the region of, but slightly less than that considered for Auton. Hindle entered a plea of guilty on the basis that his crop was intended entirely for his own use. The Recorder sentenced him to 15 months imprisonment in respect of the cultivation taking account of the fact that there was no evidence that he had made any profit from his enterprise.

Vincent

Vincent was found to have cultivated 43 plants by intensive but basic methods. He operated his efforts from a bedroom in his home and the estimated yield from his crop was 1-3 kilograms with a street value in the region of 5500[pounds sterling]. Vincent entered a plea of guilty in which he accepted that whilst his intention had been to produce the cannabis solely for his own use, since becoming unemployed he would have gone on to supply the drug to people known to him in order to fund his habit. The judge sentenced him to three years imprisonment.

Willis

Willis ran an intensive cultivation operation jointly with his brother. An outbuilding was found at Willis' house that contained 12 plants and 1-9 kilograms of harvested crop that was ready for use. At his brother's house there was a separate seedling nursery containing 68 seedlings (although it was not clear how many of these would have become useable adult plants). His brother was also found in possession of 3000[pounds sterling] in cash. Willis entered a plea of guilty and contended that the crop was intended for his personal use and that he had been surprised by the success of his operation. The judge sentenced him to 18 months imprisonment and commented that such a sentence was particularly appropriate in light of Willis' determined efforts and that his operation was sited in several locations. …