Cultivation of Cannabis Sentencing Has Just Got Tougher

Sentence has just got tougher the Cultivation of Cannabis.

The recent Court of Appeal decision in the case of R v John Auton and others [3rd February 2011] [2011 EWCA Crim 76] has tightened up sentence even for what was previously thought to be the least serious cases of cultivation. Until now the starting point for very low level cultivation of cannabis (1 or 2 plants for personal use) was a financial penalty and for small scale cultivation for personal use including social supply to a small group of friends was a low level community order.

This case is not concerned with one or two cannabis plants grown in your garden but it is concerned with even low level production/cultivation of cannabis in your home typically using hydroponic equipment, intensive artificial lighting and the use of specialist equipment.

This case states that even in cases where the production is genuinely and exclusively for the personal use of the defendant, the custody threshold is passed. This means a prison sentence. The case of Auton gives the following guidelines as authority for the appropriate sentence that should now be imposed:

  1. Where cultivation genuinely involves no element of supply of any kind, the sentence after trial is likely to be in the range of 9 – 18 months, depending on; the size of the operation and the personal history of the defendant.
  2. Where cultivation is for the defendant’s own use and whilst not a commercial supply for profit, does involve supply to others; i.e. sharing it with your friends, the sentence after trial is likely to be 18 months – 3 years depending on: the scale of cultivation; the investment made; the number of parties involved; the nature of the likely supply; the level of any profit element. A previous history of directly similar offending could take sentence above this range.
  3. Where cultivation is a commercial one designed with a view to sale for profit, whether or not the defendant may use a limited quantity of the cannabis grown for his own personal use, the sentence after trial will usually be in the range of 3 – 6 years.

Sentence imposed will always depend on the individual facts of the case and the circumstances and previous convictions of the offender. Remember, the guidelines above are based on a defendant being convicted after trial, if you plead guilty you will receive a discount in sentence of one third.

11 comments

  1. mary james

    shouldn’t you have mentioned the part about the weight?

    “…operations likely to produce not less than 1 Kg (35 ounces) and sometimes quite a lot more. A defendant who embarks upon such cultivation, even exclusively for his own use, is avoiding the risk of being caught buying on the open market and making available to himself large quantities of strong cannabis.”

    no need to reply but a web site correction would be the honest way to go imho.

  2. Kirsty Craghill

    Great point, thanks. The judgement contains a lot of detail and I was just summarising the important parts of it. I am happy to expand.

    As I said, the level of production that this case is concerned with is far from just one or two plants grown in your garden, i.e. equivalent to simple possession. The target of this authority is those who not only possess cannabis but who also produce it. It is aimed at those who the courts view as having ‘a significant element of calculated defiance of the law.’ [Herridge 2005 EWCA Crim 1410; 2006 1 Cr App (S) 45 at 252]. This judgement discusses those who have made a significant investment in the crime; for example, one of the defendant’s in this case had admitted to spending £900 on the equipment. This is not an unusual level of investment but is regarded by the courts as significant in increasing the seriousness and sophistication of the production which then has an impact on sentence.

    Whilst the potential yield from each plant of course varies, averagely one fully matured plant produces one to one and a half ounces of cannabis (about 28 – 40g) and each plant usually produces more than one harvest. As Mary says, with regards to weight, the cases concerned in this judgement involved operations likely to produce not less that 1kg (35 ounces). This could therefore be as few as 23 plants. Such production is viewed seriously by the courts for two reasons: firstly because it decreases the risk of the individual being caught buying cannabis in the open market, and secondly because it increases the availability of cannabis in the community.

    What this authority does make abundantly clear is that whatever the reason behind the production; whether it be for personal use, supply to friends or for wider commercial supply – the custody threshold is crossed and the starting point for sentence is now a custodial sentence.

    I hope this clarifies the point,

    Kirsty

  3. pc Donalds

    When they talk about the number of plants do they not realise that per plant means nothing , One plant can fill a grow room the size of a bedroom , they should concentrate on how much is being grown in an area . By talking about per plant makes the growers grow one big plant where up to 50 could have been grown in the same space .

    My job would be less stress full if cannabis was decriminalised

    • mary james

      precisely – growers who follow the twists and turns of the law will now have 3 large plants in flower with 3 in veg and 3 cuttings to follow on. one mother plant will limit smokers choice but will keep the max number down to 10 which should keep police interest minimal.
      there is a fairer way to do this but i’m not about to suggest it at this time.
      i too look for decriminalisation – as an (otherwise) law abiding citizen i don’t want to be afraid of the police.

    • Kept under 24 or 18 hours of light the plant will remain in a perpetual state of growth. left long enough in the right conditions 1 plant could produce in excess 25 ounce. The home grown industry continues to be the boom cottage industry of the past 15 years. Has anybody published the amount of grow operations that have been busted in the last decade ? The main problem is that the product of these plants are worth more than gold gram for gram. The legalisation or decriminalisation of cannabis would make The Royal Mint redundant within a very short space of time. Money does grow on these trees.

  4. Kirsty Craghill

    It’s not an exact science; i.e. ten plants equals ten months. It depends on the weight of the drug produced and the level of operation, not simply the amount of plants grown.

    Kirsty

    • mary james

      wouldn’t the amount produced be assumed to be 40 grammes per plant regardless of size?
      (thanks for the replies kirsty.)

      • A little consistency across the board would be great. A month in prison for each plant would be a good starting point. However the decriminalisation and legalisation of this versatile plant will be the ultimate outcome. like the abolishment of slavery and the women’s right to vote. The Cannabis is the issue of the day. The growth and rise of the cannabis community continues to grow despite being force further and further underground. 5000 years on planet earth, 200 years of being a controlled substance this plant just wont go away.

  5. Silly. The more they crackdown the more the drug problem gets worse. As we have already seen.

  6. My house was recently searched and the police found 11 plants growing outside in pots, very low grade, no lights or chemicals or anything. Im being charged with production for personal use. Six years ago I was charged with possession with intent to supply mdma, I was lucky and only got community service. I work full time and have an 11 month baby boy, do you guys think Im going to go to prison?

    • Hi,

      Im sorry but we are unable to give legal advice over the website. If you already have solicitors dealing with your case you should contact them for advice. If you haven’t yet instructed one we would recommend that you do so as soon as possible. If you are local and would like us to represent you, we would be very happy to help.

      Good luck with your case,

      Kirsty

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