No: 2016/1330/A3 
Neutral Citation Number: [2016] EWCA Crim 686
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Friday, 6 May 2016

B e f o r e: 
LORD JUSTICE McCOMBE
 
MR JUSTICE STEWART 

THE RECORDER OF WESTMINSTER
HIS HONOUR JUDGE McCREATH 
(Sitting as a Judge of the Court of Appeal (Criminal Division)) 

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R E G I N A 

V 

AARON LILLEY
 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr M Wilson appeared on behalf of the Appellant

The Crown did not appear and were not represented

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J U D G M E N T
1.	LORD JUSTICE McCOMBE:  On 9th June 2015 in the Crown Court at Chester before Mr Recorder Williams the appellant pleaded guilty to producing a controlled drug of class B, namely cannabis, contrary to section 4(2) of the Misuse of Drugs Act 1971.  On 11th March 2016 he was sentenced by His Honour Judge Dutton to a term of 20 months, or one year eight months.  He now appeals against sentence by leave of my Lord, Stewart J.  
2.	The short facts of the case were that the appellant had been growing cannabis plants at a property which he rented.  There were variably, comparing the facts set out in the advice and in the judge's sentencing remarks, 39 plants estimated to be between two and eight weeks old and 53 seedlings (as per the advice); the judge said there were 100 plants with 39 in very good condition and the rest in good condition.  The advice suggests that the rest were in poor health.  It is not necessary to dwell on that discrepancy of fact, although the judge is entitled to take a view of the evidence that he did.
3.	The guilty plea was entered on the basis that the cannabis was for personal use, a basis later abandoned.  However, the delay pending the trial of that issue which had to be postponed at least on one occasion led to sentence only being passed on the day that we have mentioned.  
4.	The appellant is now 23 years old and had only one previous conviction for two offences of failing to stop after an accident committed on the same day in April 2013.  For those offences he had been fined.  
5.	Mr Wilson, in admirably succinct and careful submissions to us this morning, urges upon us additional features of mitigation, namely that this was a first offence, this was a case in which the appellant had begun to work hard in a new business with the assistance of a friend, he had found a new partner and had made attempts (increasingly successful) to wean himself off his habit of drugs.  
6.	There was a pre‑sentence report before the court which indicated that the offending arose out of the appellant's own regular use of cannabis.  He had manifested to the probation service a degree of commitment to giving up the habit.  The report concluded that he had become "drug free".  It said that he had set up his own bricklaying business with his friend, but the report characterised his employment record in the past as being "episodic".  He had significant debts which he hoped to discharge from his new steady income.  He was hoping to start an NVQ course at a college in St Helens in Lancashire in September 2016 ‑‑ a point also urged upon us this morning in Mr Wilson's short submissions, a prospect which would disappear if he was sentenced to custody.  His past family history is outlined in the report.  It was not an easy one but he had, as we have already said, established a relationship with a young lady over the last eight months or so and she and her family appeared to the officer to be having a positive and supportive element in his life.  The pre‑sentence report concluded there was a low risk of re‑offending and a suspended sentence order with unpaid work was recommended.
7.	In passing sentence the learned judge described the production activity, noting that it would have required significant financial outlay on the equipment.  The electricity had been bypassed at the property.  As we have said, he noted the plants were some 100 in number in the conditions we have already described.  The judge described the operation as relatively sophisticated with all the features of a successful cannabis growing operation.  He said the investment could have been worth up to £26,000 "on a very conservative basis."
8.	The judge concluded that this was a case falling within Category 3 of the sentencing guidelines with the appellant being characterised as having a significant role.  The starting point for sentence on that basis was one year's custody, with a sentencing range of six months to three years.  The learned judge wrongly said that the top of the range was two years (if the transcript of his remarks is accurate).  Having put the top of the range at two years, the judge said that the starting point should be two‑and‑a‑half years but allowing for a discount for the guilty plea the sentence would be reduced to one year eight months.  The discount afforded therefore was one‑third.
9.	On the present appeal it is submitted that that sentence was excessive.  It is submitted that the starting point was high, given the lack of previous convictions that were relevant, and that insufficient weight was given to the mitigation which we have already outlined.  Mr Wilson submits that that mitigation and the nature of this offence would have allowed the judge to pass a sentence which could have been suspended in view of the mitigating circumstances.
10.	Apart from an assumed error in identifying the range in the sentence in the guidelines, perhaps somewhat surprising from a judge of the experience of Judge Dutton, the judge actually began his calculations from a point within the top of the guideline range of three years.  In our judgment there was no reason to fault him going higher than the guideline starting point, given that the number of plants found was well over the indicative quantity of 28 plants for which the Category 3 guidance is given.  The judge also gave the appellant a full one‑third deduction for the plea, notwithstanding the time wasting produced by the initial unrealistic basis of plea.  
11.	On the face of the matter there seems to us to be nothing to fault the judge's approach.  The only issue in reality is the question of the mitigation which, correctly, Mr Wilson has emphasised to us this morning, to which the judge made no reference in his sentencing remarks.  It seems to us that to some extent the mitigation was speculative and based upon hopes of good performance in the future.  However, we note the absence of previous convictions of any relevance.  We also note the generous discount afforded to the plea.  These are all factors to be weighed in the balance.
12.	In the end, having considered those points and not least Mr Wilson's helpful submissions, the sentence cannot be said to be manifestly excessive.  It was perhaps a harsh sentence as a first custodial sentence for a man of effective good character, but the offence was as it was and the judge correctly applied the guidelines, mitigating the effect of sentence by a generous discount for the guilty plea, qualified as that plea was initially.  In our judgment therefore, notwithstanding the points made, this appeal must be dismissed.