Chen, R. v

For a defendant whose role in a commercial cannabis operation is no more than that of a gardener, the ordinary three-year starting point remains an important sentencing benchmark before credit for plea and personal mitigation. The scale of production may justify an uplift, but the uplift must remain proportionate to the offender’s proved role. A substantial increase is excessive where there is no evidence that the offender managed the operation or performed a role beyond daily cultivation.

The appellant pleaded guilty at Derby Crown Court to being concerned in the production of cannabis. Police had found him tending a large and sophisticated cannabis factory containing mature and nursery plants. He said that others had established the operation and that he had been recruited to work as a gardener for limited payment and subsistence.

The sentencing judge adopted a post-trial starting point of four and a half years’ imprisonment and imposed three years after full credit for the guilty plea. The appellant appealed by leave of the single judge, contending that the starting point was excessive for a gardener.

1. Appeal allowed. The three-year sentence was quashed and replaced with a sentence of two years and six months’ imprisonment.

2. The court accepted that the appellant fell within the general description of a cannabis-factory gardener given in R v Xu, [2008] 2 Cr App R (S) 50. The ordinary starting point for an offender at that lowest level was three years before allowance for a guilty plea and personal mitigation.

3. The judge had been entitled to take a higher starting point because the factory’s production capacity was significantly greater than that considered in R v Xu. As R v Wong, [2008] 2 Cr App R (S) 111, illustrated, the level of production is relevant to the starting point.

4. However, there was no evidence that the appellant had been more than a gardener. The size and sophistication of the enterprise could not justify a 50 per cent uplift from the ordinary starting point for that role. The post-trial starting point of four and a half years, and consequently the three-year sentence after plea credit, were manifestly excessive. The proper sentence was two years and six months.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted two years and six months’ imprisonment for three years: [2010] EWCA Crim 446.

• Crown Court at Derby: Following a guilty plea to being concerned in the production of cannabis, imposed three years’ imprisonment. No citation was stated.