R v Arjon Osmani & Anor

The appellants appeal, with leave granted by the single judge, against the sentences imposed on them at a plea and trial preparation hearing on 5 June 2025 in the Crown Court at Exeter. Each appellant was sentenced for one count of producing a controlled drug of Class B, namely cannabis, contrary to section 4(2)(a) of the Misuse of Drugs Act 1971, to which he had pleaded guilty that day. Arjon Osmani was sentenced to 20 months' imprisonment. Rustem Kulla was sentenced to 19 months' imprisonment.

The appellants had been found in a lockup on an industrial estate which was being used as a cannabis factory, with 117 mature cannabis plants, together with growing equipment and plant food and the electricity to power the grow being siphoned off from a power substation behind the lockup. There was expert evidence that the yield of the plants was estimated to have been between 3.25 and 10 kilograms of cannabis and that, if that quantity was sold in 1 kilogram weights, it would generate £11,000 to £35,000. The expert gave larger figures if the cannabis was to be sold in ounces or in grams through street dealing, but the expert's view was that he would expect the cannabis to be sold in wholesale weights.

The appellants appeared before the magistrates' court on 6 May 2025. They did not indicate guilty pleas. The real issues in the case were identified as modern slavery and duress.

The appellants were both Albanian men who had not regularised their immigration status in this country, which severely limited their opportunities to earn money. Both contended that that factor explained their involvement in this operation. Mr Osmani was 26 and Mr Kulla was 21. Neither had any previous convictions. There was no pre-sentence report and we agree that none was necessary.

It was submitted on behalf of Mr Osmani, and not contradicted by evidence, that he had accepted a job looking after the cannabis plants, but that he had not been paid and did not know how much he would be paid. He had been in the lockup for only 3 weeks and his job had been to water the plants from a bucket. He had slept on a mattress on the floor in the lockup and he had observed the instruction not to leave, with his meals being delivered to the lockup. It was submitted on behalf of Mr Kulla, and not contradicted by evidence, that he had only been in the lockup for two days.

In terms of the relevant offence-specific sentencing guideline, this offence fell within category 2 for harm, on the basis that the operation was capable of producing significant quantities of cannabis for commercial use.

As for culpability, the prosecution accepted that the appellants played lesser roles. But the recorder found that their offending fell within what she called the overlap between lesser and significant role. The significant role factors which she identified were “Some awareness and understanding of scale of operation” and that the appellants acted for financial gain.

In a category 2 harm case, the starting point for a lesser role offence is 1 year's custody, with a range from 26 weeks to 3 years, whereas the starting point for a significant offence is 4 years' custody, with a range from 2 years and 6 months to 5 years. The only aggravating factor identified by the recorder was “Use of premises accompanied by unlawful access to electricity.”

The mitigating factors were the appellants’ lack of previous convictions, their youth and some remorse expressed by Mr Kulla. The recorder said that what she called the "initial category starting point" would be 2 years and 8 months which she increased by 2 months to reflect the aggravating factor. She then reduced that on account of the mitigating factors. In Mr Kulla's case, the reduction was 6 months, to 2 years and 4 months. In Mr Osmani's case, the reduction was 4 months, to 2 years and 6 months. She then made a further reduction of about one-third by reason of the appellants’ guilty pleas, which is how she arrived at the sentences of 19 months and 20 months. In fact, the appellants were only entitled to a reduction of one-quarter, since they had not indicated guilty pleas in the magistrates' court. The recorder said that she did not consider it appropriate to suspend the sentences.

The principal ground of appeal is that the appellants should have been sentenced on the basis that they only played a lesser role. It is also submitted that the unlawful access to electricity was not an aggravating factor for the appellants, since there was no evidence that they knew of this. However, it is not submitted that the sentences should have been suspended.

In our judgment, the recorder ought to have found that the appellants fell squarely within the lesser role category for culpability. There were many lesser role factors present.

Against that, the significant role factors identified by the recorder were of limited, if any, weight. In relation to financial gain, the relevant significant role factor was “Expectation of significant financial or other advantage.” The recorder considered that the appellants did what they did for financial gain. But she did not find, and there was no evidence on which she could have found, that the appellants were expecting significant financial advantage. As for "Some awareness and understanding of scale of operation", it cannot be the case that the mere knowledge of the number of plants in a cannabis factory converts a defendant's role from lesserto significant. Otherwise, it would be difficult to find that any defendant could ever play a lesser rolein a category 1 or 2 cannabis operation. Yet the guideline clearly envisages that this is possible. The size of the cannabis grow affects the categorisation of harm under the guideline. It would be double counting to use it also, in itself, to convert a defendant's role from lesserto significant.

Accordingly, we quash the sentences imposed by the recorder. We substitute 8 months' imprisonment for Mr Osmani and 7 months' imprisonment for Mr Kulla. We accept that the abstraction of electricity was not a significant aggravating factor when sentencing two defendants who could not be shown to have known about it. On account of the mitigating factors, we reduce the starting point of 12 months' imprisonment by 1 month in Mr Osmani's case and by 2 months in the case of Mr Kulla, who was significantly younger and who had been in the lockup for less time. The appellants are then entitled to a one-quarter reduction in their sentences by reason of their guilty pleas entered at their plea and trial preparation hearing.

Given the time which the appellants have spent in custody, either on remand or serving their sentences, since they were first remanded on 2 May 2025, it would not be appropriate for us to order these substituted sentences to be suspended.