Kay & Anor, R. v

Serious and professionally organised cannabis production for profit calls for substantial deterrent custodial sentences. In such offending, personal mitigation will rarely justify a significant reduction. A sentencing court may adopt a substantial starting point where the operation is sophisticated, involves a large number of plants and includes the theft of electricity. An early guilty plea may properly reduce that starting point, but the resulting sentence will not be varied unless it is wrong in principle or manifestly excessive. Exceptional personal mitigation in another case does not assist an offender whose circumstances are materially less compelling.

The appellants pleaded guilty at Bournemouth Crown Court to producing cannabis. Kay also pleaded guilty to extracting electricity. They had supplied and installed equipment for two hydroponic cannabis factories, knowing its intended use. One premises contained 540 cannabis plants and the operation was capable of producing several valuable crops annually.

On 12 January 2007, Judge Beashel sentenced each appellant to four years’ imprisonment for producing cannabis. Kay received a concurrent sentence of 12 months for extracting electricity. Both appealed against sentence by leave of the Single Judge, contending that the starting point was excessive and that further credit should have been given for their pleas and personal mitigation. The central issue was whether the sentences were wrong in principle or manifestly excessive.

1. Appeals dismissed. The concurrent four-year sentences for producing cannabis were correct and neither was wrong in principle or manifestly excessive.

2. The offending was a serious, professional and profit-driven cannabis-growing enterprise. The scale of the operation, its sophisticated hydroponic equipment, the 540 plants found, and the extraction of electricity justified a substantial custodial starting point. The judge was entitled to take a starting point of six years after a trial.

3. Deterrence was properly central to sentence. The court endorsed the approach reflected in R v Jubb [2002] 2 Cr App R(S) 8: commercial cannabis production intended to generate large profits requires substantial imprisonment. Personal mitigation will rarely carry much weight in this category of offending.

4. The guilty pleas properly reduced the six-year starting point to four years. There was no basis for a further reduction for either appellant. Summana’s lack of relevant drug convictions, family circumstances, financial difficulties and loss of his home did not make his mitigation comparable to the exceptional circumstances in R v Kien Vi To [2006] 2 Cr App R(S) 38. The court therefore upheld the equal sentences imposed for the principal offence.

• Court of Appeal (Criminal Division): Appeals against sentence dismissed; the four-year sentences for producing cannabis were upheld.
• Crown Court at Bournemouth: On 12 January 2007, Judge Beashel sentenced each appellant to four years’ imprisonment for producing cannabis. Kay received a concurrent 12-month sentence for extracting electricity.