Arber Ketuka v. His Majesty’s Advocate [2025] HCJAC 25

Note of appeal against sentence:- The appellant pled guilty at Falkirk Sheriff Court by the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to contraventions of sections 4(2)(a) and 4(3)(b) of the Misuse of Drugs Act 1971, namely, the production of cannabis and being concerned in the supplying of cannabis over a 2 month period in 2023. The sheriff selected a headline in cumulo sentence of 42 months imprisonment which was discounted to 32 months and 2 weeks imprisonment on account of utilitarian value of the plea. The appellant appealed against the sentence imposed it being contended it was excessive. The circumstances were that the appellant, an Albanian national who had been living in London prior to the offence, farmed cannabis plants in two adjacent first floor flats in Falkirk and was paid £200 a day for doing it. In relation to the scale of the cultivation every room in the flats were used for the cultivation with extensive lighting, ducting, ventilation and watering equipment used. At the time of discovery by the police there were 180 plants, which had the potential to produce 15 kilograms of high quality cannabis bud with a maximum value of the cannabis produced being £172,800. When the police attended the appellant fled by accessing the roof. It was submitted on behalf of the appellant, under reference to the guidance provided in Lin v HMA 2008 JC 142 and to the Sentencing Council for England and Wales Sentencing Guideline for Production of a controlled drug/Cultivation of cannabis plant that the headline sentence was excessive. It was further submitted that the court may wish to refer the case to a court of three judges where the continued applicability of the guideline range in Lin could be considered. In Lin the court had observed that the higher sentences imposed in Scotland compared to England and Wales was justified due to such cultivations being ‘a new development” in Scotland. It was submitted that such cultivations were no longer new in the jurisdiction and actor could not now justify higher sentences than in England and Wales. It was further submitted that since Lin the Sentencing Guideline had been issued and under reference to the Guideline the appellant ought to be viewed as having a lesser role, or a role somewhere between a significant role and a lesser role and not the significant role the sheriff had given the appellant in what the sheriff had described was on an industrial scale with a harm classification of either category 2 or category 1. It was submitted on behalf of the appellant that the quantity of drugs involved placed the appellant in category 2 and not category 1 with the range for significant role category 2 cases being 2 years 6 months to 5 years and the starting point of 4 years. The range for lesser role in category 2 cases was 26 weeks to 3 years with a starting point of 1 year. Reference was made to the English case of R v Andi Toromani [2023] EWCA Crim 1302 where the appellant had looked after197 plants capable of producing 10.87 kilograms of cannabis with a maximum value of £58,360. There the Court of Appeal considered that his involvement fell between a significant role and a lesser role, and that the amounts produced placed the harm in category 2 and considered that the appropriate headline sentence was 3 years imprisonment discounted to 2 years 3 months on account of the plea of guilty. It was submitted on behalf of the appellant that his role was less significant than Toromani and the sentence imposed here was excessive. Here the court refused the appeal. The court reiterated that the case of Lin remains a guideline judgment for gardeners concerned in relatively large scale production operations like the present case and whilst the number of plants and potential profits were less in the present case than in Lin the headline sentence selected here was also less than the 5 years selected in Lin. The court also observed that in Lin the period of the offence was at a time when cannabis was classified as Class C rather than Class B as it is now. Further, the court considered that the sentence imposed by the sheriff was in line with the sentencing Guideline of England and Wales. It was noted that the appellant received a not inconsiderable sum of £200 per day which lent itself to the appellant having a significant role with an insight into the scale of the operation and being in sole charge of the running of it for the period, albeit it was recognised he appeared to have no influence on those above him in the supply chain. In relation to the assessment of harm the court noted that the harvest could have been 15 kilograms of higher quality with a maximum street value of £172,800 and the court considered that if the harm was not category 1 it was at the top of the category 2 scale. The court considered that the headline sentence of 42 months was not excessive being 6 months below the bottom of the range of starting points in Lin and 6 months below the starting point for a significant role in a category 2 harm case and was only 6 months more than the headline sentence in Toromani and the court viewed the culpability here as no less than in Toromani and the harm was greater.