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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Nimmo Smith
Lord Carloway
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[2007] HCJAC 62
Appeal No: XC618/07
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEAL
by
ZHI PEN LIN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Crowe; Drummond Miller, Edinburgh
Alt: McConnachie, Q.C., A.D.; Crown Agent
2 November 2007
[1] The appellant
pled guilty at a continued first diet in the Sheriff Court at Forfar to a contravention of
section 4(2)(a) of the Misuse of Drugs Act 1971 -
production of cannabis, in contravention of section 4(1) of the Act. The offence was committed between
10 February and 5 March 2007.
The appellant was sentenced to imprisonment for 3 years and 9
months, the sentence having been discounted by reason of his early plea from
one of 5 years' imprisonment. A
deportation order was recommended.
[2] The
appellant, who is 32 years of age, is a Chinese national. He entered the United Kingdom illegally in March 2005. He claimed asylum under a false name. His claim was rejected. He was initially detained but then released
temporarily, subject to a reporting restriction in London.
He failed to comply with that restriction, next coming to the notice of
the authorities in connection with the present offence.
[3] The
dwellinghouse at 77 South Street, Forfar is a bungalow comprising
five rooms with kitchen and bathroom. In
September 2006 its owner leased it to a named individual. Rent was paid timeously. On 5 March 2007 in furtherance of a search
warrant police officers forced entry into this dwellinghouse. All its windows had their curtains drawn
closed. The floors and internal doors
were covered with plastic sheeting.
Reflective material had been placed on the walls of certain of the
rooms. The whole dwellinghouse, other
than its kitchen, was devoted to the cultivation of cannabis. Elaborate electrical cabling arrangements had
been made to supply heat and light to the plants. High voltage bulbs were in use. The rooms were at high temperatures, at one
point reaching 96 degrees Fahrenheit.
Arrangements for propagating and fertilising the plants were in
place. Within the bathroom was a large
water tub with a hose attachment leading to the hall area to facilitate the
watering of plants throughout the house.
[4] Within the
property were in all 849 cannabis plants at various stages of growth. Their estimated value was £100 per plant,
giving a total value of £84,900.
[5] At interview
the appellant stated that on leaving London he had gone to Manchester to work. While there in February
2007 he had been approached by a man who had requested him to reside in his
house and to water some plants.
He was taken by that man to the dwellinghouse in Forfar where he lived
and slept in the kitchen. Every few days
the man would bring food to the appellant and check the plants. The appellant's duties were to water the
plants, feed them, cut the leaves from the bottom of them and lay out the cut
leaves to dry. The appellant stated to
the police that he believed that the plants were "some sort of air
freshener". He could not, he said, name
the man who had brought him to Forfar, stating only that he had the nickname
"AJ". That man had put dried cannabis
leaves into plastic bags.
[6] In mitigation
before the sheriff it was stated that the appellant, who had a wife and young
son in China, had fled from that country
following difficulties there. He had
paid money to a "snakehead" for his journey to the United Kingdom.
He was saving up to repay that debt.
He had found himself out of work in Manchester and in these circumstances had
accepted the offer of work in Scotland.
He had been told that he would be paid for the work. He had hoped in due course to get work in a
kitchen or restaurant. He had been told
that the plants were to do with some sort of air freshener but, having seen the
arrangements, quickly realised that the operation was concerned with controlled
drugs. He had had, however, no option
but to do what was asked of him. He had
no source of income, no roof over his head and no food. He was effectively a prisoner in the
situation in which he had found himself.
The appellant was a first offender.
He had found his remand in custody to be very difficult, because of the
language barrier and his inability to communicate with other inmates.
[7] Before us Mr.
Crowe submitted that, while the illegal operation in which the appellant had
become involved was elaborate and was commercial in nature, the appellant's
role was very much at the lower end of culpability. He was only a "gardener" and could be
regarded as a "drug slave". He was a
first offender, assessed at being at a low risk of reconviction. His period in custody awaiting trial had made
him much more fully aware of the impact drugs had on society and the
seriousness of the situation in which he was involved. The sheriff's starting point of 5 years, it
was submitted, was too high. Reference
was made to H.M. Advocate v Ting Yen Chen (Edinburgh High Court, 29
August 2007, unreported), where in analogous circumstances (506 plants with a
street value of £141,680) an accused had been sentenced by Lord Brailsford to
18 months' imprisonment. No issue was
taken as to the amount of the discount allowed for the early plea. In England, on a plea of guilty in similar
circumstances, a sentence of 2 years imprisonment might be expected.
[8] On leave to
appeal being granted, this appeal was identified as a case in which it might be
appropriate for the court to exercise its power, under section 118(7) of the
Criminal Procedure (Scotland) Act 1995, to issue guidance on sentencing. In these circumstances intimation was given
to the Crown that the court would welcome being addressed by it on the general
issues arising. A court of three judges
was convened. The Lord Advocate
helpfully lodged written submissions and the Advocate depute was heard in
elaboration of them.
[9] The Advocate
depute informed us that an Operation, established by Strathclyde Police in
December 2006 and with which other police forces in Scotland had co-operated,
had identified a very substantial recent increase in Scotland in the illegal
production, apparently by organised criminals, of cannabis on a commercial
scale. Thousands of cannabis plants were
involved with a current estimated yield in excess of £10m at street value. Rented domestic premises were a typical
site. Fifty one individuals had so far
been arrested. Apart from the appellant
and Ting Yen Chen, seven of these had so far been prosecuted to
conviction. Of these four had been
convicted after trial in the Sheriff Court and three had pled guilty at
preliminary hearings in the High Court.
All but the last of these had been sentenced. The sentences imposed had ranged from 3 years
to 3 years 6 months in the Sheriff Court.
In the High Court, leaving aside the disposal in Ting Yen Chen, the sentences, both on pleas of guilty, had been of
3 years 9 months and 4 years 6 months.
The latter sentence had been imposed by Lord Hodge in circumstances
similar to the present but where 580 plants with a value of £250,000 were
involved. All except that accused who
had not yet been sentenced (whose involvement had been associated with several
addresses and with the renting of them) had been "foot soldiers". Typically they were of Chinese or Vietnamese
nationality. The Advocate depute also
drew the court's attention to certain disposals in England - R. v Kieu Vi To [2005]
EWCA Crim. 3532, [2006] Cr. App. R (S) 38; R. v Tuckman
[2005] EWCA Crim. 335, 2005 WL 290959; R. v Kuang
Van Nguyen [2007] EWCA Crim. 629, 2007 WL 105 8322 and R. v Hung Van Nguyen
[2006] EWCA Crim. 2522, 2006 WL 3389976.
[10] The illegal
cultivation of cannabis by organised criminals on a substantial commercial
scale appears to be a relatively new phenomenon in Scotland.
There has been a degree of disparity, at least in the High Court, in the
sentences so far pronounced on persons convicted of relatively minor involvement
in such activity. A significant number
of other persons are being or are likely to be prosecuted for such
involvement. In these circumstances it
appears appropriate to offer guidance to sentencers on the appropriate level of
sentence.
[11] The maximum
sentence on conviction on indictment for contravention of section 4(2)(a) of the Misuse of Drugs Act is 14 years imprisonment or
an unlimited fine or both. That maximum
remains, notwithstanding the reclassification of cannabis as a Class C drug for
the purposes of the Act. The dangers
associated with this drug are well known.
[12] The higher
ranges of sentence within the statutory maximum must be reserved for the more
serious cases - involvement at a sophisticated level, multiple offences and
repeat offences. First offenders with
minor involvement, such as "gardeners", may appropriately be dealt with less
severely. Nonetheless, where cultivation
is, as in cases of which the present is typical, on a commercial and
substantial scale, a sentence of imprisonment will, almost inevitably, be
appropriate. The courts must seek to
deter individuals from lending their services to such activity - even where
offenders are in circumstances where the pressure is on them to participate may
be heavy.
[13] In our view
the appropriate starting point for such "gardeners" involved in relatively
large scale operations will ordinarily be in the range of 4 to 5 years'
imprisonment. Where within that range
or, if the circumstances justify it, outwith that range the sentence in any
case should be set will depend on the particular circumstances of the offence
and of the offender. Although this range
appears to be higher than that currently set in England (where the cases cited to us seem to
suggest a starting point of 3 years) we consider that the need to discourage a
new development in this jurisdiction justifies that difference. Where a plea of guilty is tendered, the
starting point should be discounted to the extent appropriate to the timing of
such tender.
[14] In the present
appeal the starting point selected by the sheriff was at the upper end of the
range which we have identified. While
the sentence imposed might be described as on the severe side, it is not in our
view excessive. In these circumstances
this appeal must be refused.
