Chan, R. v

Sentencing guidance for large-scale cannabis production which classifies those involved in production does not itself prescribe a sentencing bracket for an offender convicted only of knowingly permitting premises to be used. The offender’s relative culpability depends in part on awareness of the operation’s scale and the extent of personal benefit.

The sentence must reflect the offence admitted and the accepted factual basis. It is wrong to sentence such an offender as though he played a role in the production operation where that involvement was not established. Custody and deterrence may nevertheless be justified by the scale and sophistication of the operation, subject to proper credit for a guilty plea and personal mitigation.

The appellant owned a warehouse used for a sophisticated cannabis-growing operation. Electricity and water were supplied from his nearby bungalow. On the day fixed for trial, the indictment was amended and he pleaded guilty to knowingly permitting the premises to be used for producing cannabis. A not-guilty verdict was entered on the original count of producing cannabis.

He received five years’ imprisonment and a confiscation order of £10,000, reflecting rent received. He appealed against sentence. The issue was whether the sentencing judge had wrongly treated him as a participant in the production operation, relying too closely on the hierarchy described in R v Xu and others [2007] EWCA Crim 3129, rather than sentencing him for the offence to which he had pleaded guilty.

1. Appeal allowed. The court quashed the sentence of five years’ imprisonment and substituted three years and six months’ imprisonment.

2. The appellant’s late guilty plea attracted significant, if not maximum, credit because the added count reflected the involvement he had consistently asserted. The acquittal on the production count, and the agreed confiscation order limited to rent received, showed that his admitted criminal benefit did not include the proceeds of the cannabis operation.

3. R v Xu and others [2007] EWCA Crim 3129 addressed sentencing for large-scale cannabis cultivation and production. Its non-guideline hierarchy concerned workers, managers, organisers and controllers involved in such operations. It did not expressly provide a sentencing bracket for a person who knowingly permits premises to be used for production but does not participate in the production itself.

4. The sentencing judge was entitled to regard the provision of premises as potentially very serious. Without premises, the operation could not begin. A custodial sentence and an element of deterrence were inevitable. However, she erred by sentencing the appellant as though he had played a part in the operation itself, despite the basis on which the Crown accepted his plea.

5. The relative culpability of a person permitting premises to be used depends in part on knowledge of the operation’s scale and the extent of personal benefit. The appellant knew more than he admitted, but may not have known the full scale of the operation. His financial difficulties, fear for himself and his family, good character, age and proper plea credit reduced the appropriate sentence to three years and six months.

• Court of Appeal (Criminal Division) — by [2010] EWCA Crim 2596, allowed the appeal against sentence, quashed the five-year sentence and substituted three years and six months’ imprisonment.
• Sentencing court at Doncaster — on 5 March 2010, following the appellant’s guilty plea to permitting premises to be used for producing cannabis, imposed five years’ imprisonment and made a £10,000 confiscation order under the Proceeds of Crime Act.