Auton & Ors v R.

Well-planned and resourced cannabis cultivation below industrial scale will ordinarily cross the custody threshold, even where the crop is genuinely for the cultivator’s exclusive use. Sentencing must distinguish own-use cultivation from operations involving supply, and from frank commercial cultivation for profit.

There is no rigid category of social supply. Any supply increases seriousness, on a sliding scale determined by its nature, the scale and investment of the operation, the persons involved, and any profit. A sentencing judge must determine the proper factual basis and, if accepting a basis of plea, must sentence consistently with it.

Four defendants appealed sentences imposed in different Crown Courts for intensive cultivation of cannabis in domestic premises or associated outbuildings. The operations involved hydroponic methods, artificial lighting and crops or potential crops of substantial quantity.

Auton and Hindle were sentenced on the footing that their cultivation involved, or was likely to involve, circulation to others. Vincent admitted intended supply for money. Willis advanced a basis of plea asserting exclusive personal use, which the judge neither rejected nor tested before sentence.

The common issue was the appropriate sentencing approach for well-resourced cannabis cultivation below the industrial scale considered in earlier authority.

The appeals of Auton and Hindle were dismissed. Vincent’s appeal was allowed by reducing his sentence from three years to 27 months. Willis’s appeal was allowed by reducing his sentence from 18 months to 12 months.

1. For intensive, non-industrial cultivation on the scale described, a custodial sentence will almost inevitably be required. Where the crop is genuinely for the defendant’s exclusive use, the likely sentence after trial is nine to 18 months, subject to the operation’s size and the defendant’s history.

2. Supply makes the offence more serious, but the expression social supply does not identify a discrete sentencing category. The court must assess the actual likely distribution. Occasional hospitality is at the lower end; regular circulation among associates is more serious; sales for profit are more serious still. Own-use cultivation involving supply ordinarily attracts 18 months to three years after trial. A frankly commercial operation will usually attract three to six years, normally below the range in Xu [2007] EWCA Crim 3129 because of its smaller scale. Unlawful abstraction of electricity is ordinarily aggravating.

3. The sentencing ranges in Xu must remain consistent with its treatment of industrial-scale production. A domestic cultivator operating his own smaller unit is not directly analogous to a low-level gardener in an industrial commercial operation.

4. A judge is not bound to accept a basis of plea, even if the Crown accepts it. If it is not manifestly unfounded, the defendant should normally have an opportunity to support it with evidence if the judge proposes not to accept it. If the judge accepts it, ordinary sentencing principles require the judge to honour it. These principles, reflected in Tolera [1999] 1 Cr App R 29 and Underwood [2005] 1 Cr App R 13, did not require a Newton hearing in every case.

5. Auton’s and Hindle’s 15-month sentences fell within the applicable range. Vincent’s three-year sentence had been derived by an inappropriate direct analogy with Xu, and the proper total was 27 months. Willis’s operation strongly suggested intended sale, but his accepted and untested basis of plea meant that the correct factual basis had not been addressed; his sentence was therefore varied to 12 months.

• Court of Appeal (Criminal Division): The court dismissed the appeals of Auton and Hindle, reduced Vincent’s sentence from three years to 27 months, and reduced Willis’s sentence from 18 months to 12 months.
• Crown Court: Sentences for cannabis cultivation were imposed at Canterbury, Harrow, Leeds and Sheffield Crown Courts.