R v Nguyen Minh

On 15 June 2026 after a six-day trial of the appellant and four co-defendants at Bradford Crown Court which was presided over by HHJ Tahir Khan KC, the appellant was convicted of producing a class B drug (cannabis), contrary to section 4(2)(a) of the Misuse of the Drugs Act 1971. He was acquitted on count 2 (abstracting electricity).

On the following day he was sentenced to two years' imprisonment.

Against that sentence he now appeals with the permission of the Single Judge.

On 13 September 2025. police officers attended a terraced house in Hebden Bridge. They were responding to reported concerns that a van parked outside the house had been involved in fly tipping the day before. Inside the property were plant pots, lights and the type of equipment which is associated with cannabis production. Similar items were also found in the van parked outside and in the front yard. The officers also found 109 cannabis plants across three rooms in the house.

Two of the appellant's co-defendants were found soon after the officers entered the premises. During a further search of the house officers discovered that the electricity had been bypassed and live wires were trailing around the property. They also found the third co-defendant and the appellant hiding in the loft.

A drugs expert reviewed photographs and descriptions of the scene and concluded that the grow was in the process of either being set up or dismantled when the police arrived. He explained that fly tipping was a common way of dealing with the waste from cannabis farms, as disposing of the waste legitimately would risk drawing attention to the illegal activity. The expert valued the crop at between £21,000 and just shy of £60,000, depending on whether the cannabis was sold wholesale or in smaller street deals. Fingerprint lifts were taken from inside the house and the appellant's fingerprints were found on a glass and on a bin liner.

The appellant was arrested and interviewed. He told officers that he had been approached by a western man who had offered him food and taken him to the address before telling him to clean up to get some food. He said he had not known about the cannabis plants, nor the by passing of the electricity and had not been involved in production of any cannabis. He then answered “no comment” to all further questions.

The appellant was aged 43 at the time of the offending and 44 at the time of conviction and sentencing. The Judge did not have the benefit of a Pre-sentence Report or sentencing notes to assist him in relation to determining sentence. However, the agreed position of the parties was that this was a category 2, lesser role case on the relevant Guideline. This meant a category starting point of one-year's imprisonment with a range of 26 weeks to 3 years.

In his brief sentencing remarks, the Judge said to all four defendants that how they ended up at the address was difficult to know, but that it was clear to him that each defendant had been part of a team engaged in setting up or dismantling a cannabis factory and that, "whichever way one looks at it" they were "playing a significant role in this offending".

The Judge added that:

He went on to say that he would deal with them on the basis that they were of previous good character and that he would impose the same sentence on each of them as this was a group offence. The Judge said that the starting point in their cases was three years' imprisonment, but that he would bring the sentence down to two years to reflect their previous good character.

In his written grounds of appeal Mr Bottomley advanced two principal grounds in support of his contention that the sentence passed by the Judge was manifestly excessive. The first is that the Judge wrongly characterised the appellant's role under the relevant sentencing guideline as "significant", when the parties agreed that it was "lesser", and it was lesser. This error, submitted Mr Bottomley, was compounded by procedural unfairness in that the Judge did not inform the parties that he was considering departing from their agreed categorisation.

Second, Mr Bottomley submitted that the Judge wrongly held that the seriousness of the applicant's offending was compounded by prevalence.

In his cogent and helpful oral submissions, Mr Bottomley indicated that in the light of the respondent's answer, which we will summarise in a moment, the second ground was no longer pursued. As far as the first ground is concerned, Mr Bottomley submitted that none of the factors identified in the Guideline as indicating a "significant role" was present in this case, and more than one "lesser role" factor was present. The only proper conclusion was that this was a lesser role case.

Mr Bottomley submitted that the appellant performed a limited function under direction. There was no evidence that he recruited anyone or pressurised anyone, or that anyone was answerable to him. Nor was there any evidence of a financial advantage to the appellant, let alone a substantial advantage. More importantly, the appellant was "engaged by pressure and control", given that he was an illegal immigrant, was penniless and did not speak English. This, therefore, was also a case of "involvement through naiveté, immaturity or exploitation."

The evidence, Mr Bottomley submitted, was also that the appellant had "very little, if any, awareness or understanding of the scale of the operation". His mobile phone had been seized. It contained approximately 15,000 items, but nothing relating to any criminality of any kind, still less evidence connecting the appellant to any wider enterprise, to any organised crime group or to any person above him in the chain. In terms of fingerprints, the evidence which we have summarised, submitted Mr Bottomley, demonstrates limited involvement in the operation. Overall, on the evidence, all that the appellant knew of the scale of the operation was what he knew about the house at Hebden Bridge.

The Respondent's Notice, which was directed by the Single Judge, argues that the Judge's sentence was not manifestly excessive. The following arguments are put forward.

First, the Judge was not bound by the agreed categorisation of the parties, and nor was he obliged to invite submissions specifically as to whether he should depart from it. In any event, what matters for present purposes is whether the sentence was manifestly excessive, which it was not.

Second, involvement in the setting up of a cannabis production operation is a relevant factor, increasing the level of culpability (see R v Nguyen Hai Dwan [2011] EWCA Crim 1604 at paragraphs 8 and 9). The Crown's unchallenged expert evidence was that the operation at the address was in the process of either being set up or dismantled, and it was confirmed in the appellant's oral evidence and in the oral evidence of some of his co-defendants that they were involved in setting the operation up. The appellant had described taking cannabis plants into the address. Moreover, the operation was on a significant commercial level and the appellant's role was more significant than that of a gardener.

Third, contrary to the appellant's case, the respondent submitted that there was no evidence that he had been "engaged by pressure, coercion, intimidated, grooming and/or control", nor that he was involved "through naiveté, immaturity or exploitation".

Fourth, nor was it the case that only having knowledge of a single premises necessarily means that a defendant cannot have had sufficient knowledge of the scale of theoperation for the purposes of the ‘significant role’ category of offending under the relevant guideline (see R v Thuan van Vu [2014] EWCA Crim 561), albeit there were 231 plants in that case and evidence of a further 140.

Fifth, in any event, the category starting point for category 2/significant role is 4 years with a range of 2½ to 5 years. Here, the Judge started at 3 years i.e. near the bottom of the range for significant role cases, before reducing the sentence to 2 years for previous good character, a sentence which was below the bottom of the range significant role and a year below the top of the range for lesser role, and therefore well within the range for that categorisation.

Finally, although there was no community impact statement, there was unchallenged expert evidence about the prevalence of cannabis production in West Yorkshire. Detective Constable Jack Curbishley had given evidence that, for example, the availability of production locations, combined with the excellent transport links in the region had ensured that cannabis production in West Yorkshire is a profitable option for organised crime groups. Mr Bottomley helpfully indicated that that aspect of the Respondent's Notice was correct and it was in the light of that fact that he no longer pursued Ground 2.

The authorities relied on by the respondent turned on their own facts and were, therefore, of limited assistance. R v Thuan van Vu involved a significantly larger operation and, in any event, the appellant in that case had been categorised as playing a lesser role, given that he was a gardener.

We accept the respondent's submission that a person who sets up an operation of this sort may well be more culpable than the person whose role is to tend the plants, although ultimately the question is fact specific. Here, the Judge did not reach a view on whether the team were setting up or dismantling the cannabis. However, again, and in the best traditions of the bar, Mr Bottomley conceded that there was the evidence described in the Respondent’s Notice that the appellant was involved in the setting up of the operation.

We agree with Mr Bottomley that it would have been preferable if the Judge had indicated more fully to counsel or in his sentencing remarks the basis on which he considered, applying the factors in the Sentencing Guideline, that the role of the appellant and his co-defendants was significant. However, ultimately the question for us is whether the sentence which was passed by the Judge was manifestly excessive.

We do not consider that it was. Properly analysed, Mr Bottomley's submissions were challenging the Judge's assessment of the evidence as to the precise nature of the appellant's involvement in the setting up of the operation. The Judge had presided over the trial and was, therefore, well placed to form a view as to the appellant's involvement. He saw and heard the evidence and he received the submissions of the parties including, no doubt, Mr Bottomley's submissions made to us today as to the degree of involvement. He clearly considered that the appellant had an operational or management function within a chain.

Although the Judge found that the appellant's role was significant, he adjusted his starting point downwards from 4 years to 3 years to reflect some of the points which Mr Bottomley has made to us about the characterisation of this offending. He then made a generous reduction for previous good character to arrive at 2 years, which as we have pointed out, is significantly below the range for lesser role offences.

In our view, given the scale of the operation in this case and given that the appellant was working as part of a team, whether setting up or taking down the operation, he had a role which was not at the bottom of the chain of command in relation to the operation. The Judge would, therefore, have been entitled to arrive at the same result by accepting that this was a lesser role case and then going up the range from 1 to 2 years.

For all of these reasons, we do not consider that the sentence passed by the Judge was manifestly excessive. We therefore dismiss the appeal.