Albanian cannabis ‘gardener’ who cultivated 180 plants in Falkirk loses appeal against length of sentence

About this case:

• Citation:
  [2025] HCJAC 25
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Arber Ketuka pled guilty under section 76 procedure to the production and supply of cannabis contrary to sections 4(2) and 4(3) of the Misuse of Drugs Act 1971, and was sentenced to 42 months’ imprisonment, reduced to 32 months and two weeks because of his guilty plea. He argued that in other Scottish and English cases persons who had pled guilty to similarly serious offences had received lesser sentences than the one selected for him.

The appeal was heard by Lord Doherty and Lord Clark. A Ogg, solicitor advocate, appeared for the appellant and M Way, advocate depute ad hoc, appeared for the Crown.

Industrial scale

Between 27 April and 22 June 2023, the appellant was paid £200 a day to farm cannabis plants in two adjacent first floor flats in Falkirk. The entirety of these flats were used in the operation, and when the police discovered the operation there were 180 plants capable of producing around £172,000 worth of cannabis. On arrival of the police, the appellant fled the site by accessing the roof of the property and climbing down onto the street, but he was later arrested.

In sentencing the appellant, the sheriff had regard to the guidance provided in Lin v HM Advocate (2008), which indicated that the starting point for “gardeners” involved in relatively large-scale operations ought to be between four and five years’ imprisonment. The headline sentence was selected based on the appellant’s significant role and the industrial scale of the operation.

For the appellant it was submitted that Lin was decided when the commercial production of cannabis in Scotland was a relatively new development, and that factor could no longer justify higher sentenced than were issued for the same offence in England and Wales. The English Sentencing Guideline would place him in category 2, with a sentencing range of two years and six months to five years.

In respect of the significance of the appellant’s role, he invited the court to consider the English case of R v Toromani (2023), where a man who looked after 197 cannabis plants was given a headline sentence of three years’ imprisonment. His sentence should also be compared to those passed on five men in Jedburgh Sheriff Court in early 2025 who received sentenced of between 18 to 28 months’ imprisonment for cultivating cannabis with a value of around £2.4 million.

Significant role

Lord Doherty, delivering the opinion of the court, said of the relevance of Lin: “We accept that the relatively large scale production of cannabis is not now a new development in Scotland. While that factor may no longer justify higher sentences being imposed here than in England, the need for deterrence remains given the current prevalence in Scotland of such large scale operations. It is also worth recalling that Lin was decided during the period (between 2004 and 2009) when cannabis was classified as a class C drug, whereas it is now a class B drug, and that greater harm is associated with class B drugs than with class C drugs.”

He continued: “Turning to the Sentencing Council Guideline, and culpability, there are factors pointing to the appellant having a significant role. There was an expectation of a significant financial advantage - payment of £200 a day. The appellant must have been well aware of the scale of the operation. Moreover, he seems to have been trusted to be in sole charge of its day-to-day running. On the other hand, there is no indication he had any influence on those above him in the chain. Weighing these factors, we think it is right to treat him as having a significant role.”

Considering the comparator cases raised by the appellant, Lord Doherty said: “Category 1 harm involves an ‘operation capable of producing industrial quantities for commercial use’. Category 2 harm occurs where there is an ‘operation capable of producing significant quantities for commercial use’. In Toromani the court considered the operation to be high up the scale of category 2 cases. The plants there were expected to produce a total of 10.84 kilograms of cannabis with a maximum value of £58,360. Here, the harvest could have been 15 kilograms, the plants were of higher quality, and the maximum street value was £172,800. If the harm is not category 1 it is at the top of the category 2 scale.”

He concluded: “We have not obtained any assistance from the information given to us about the Jedburgh Sheriff Court cases. We do not have the narratives for those cases or details of any mitigation which there may have been, and we do not know what the headline sentences were. In the whole circumstances we are not persuaded that a headline sentence of 42 months was excessive. It is 6 months below the bottom of the range of starting points in Lin, and 6 months below the starting point for a significant role category 2 harm case.”

The appeal against sentence was therefore refused.