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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bergin, R v [2014] EWCA Crim 1228 (04 June 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1228.html Cite as: [2014] EWCA Crim 1228

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4th June 2014

1. RECORDER OF LIVERPOOL: The appellant, who is aged 55 years, appeals by leave of the single judge against sentences totalling 3 years' imprisonment, imposed in the Crown Court at Bradford by the Honorary Recorder on 27th January 2014, following his earlier pleas of guilty at the plea and case management hearing to two related offences, one of producing a controlled drug of Class B, that is cannabis, and the other of possession of cannabis with intent to supply.
2. The facts of the offences can be stated shortly. On 22nd June 2013 the appellant's neighbours, one of whom was pregnant, reported a strong smell of cannabis from the appellant's home to the police. The neighbours had previously complained directly to the appellant. That complaint had fallen on deaf ears. When the police attended they found in a bedroom a total of 90 cannabis plants whose potential yield when harvested was 3.78 kilograms, with a street value of in excess of £30,000. This was high quality skunk cannabis.
3. The appellant had installed a thermal tent and lighting to aid his production but there was no proper extraction or ventilation facility. That is the background to count 1. In addition in the kitchen the police found five bags, each containing 1 ounce of cannabis and also scales and two mobile telephones from one of which were retrieved eight messages in relation to the appellant's dealing, hence count 2. When the appellant was interviewed by the police, he said that this was his first growth and it was all for personal use. The incriminating texts related, he said, to the sale of sweets not drugs. In due course the appellant pleaded guilty at the plea and case management hearing not, it should be emphasised, at the preliminary hearing. The written basis of his plea was wholly unrealistic. Although it was initially accepted by the prosecution, the Honorary Recorder quite rightly, in our view, was critical of the stance taken by the Crown Prosecution Service and required an opening to justify that stance. Wiser heads prevailed. Further evidence was obtained by way of photographs and clarification and a Newton hearing would have taken place had not the appellant sensibly abandoned his original basis in advance of the date fixed for sentence. Thus the court was able to proceed to sentence on the basis that the appellant was producing cannabis for largely, though not exclusively, commercial purposes and was willing and able to deal at both street level and, as one of the texts made clear, in quantities of up to 4 ounces at a time. The significance of count 2, in relation to the appellant's overall criminality was that it, together with six stalks which had already been harvested, gave the lie to the appellant's original assertion that count 1 represented his first crop.
4. It was accepted before the Honorary Recorder and before us that the learned Recorder was entitled to treat the appellant as playing a significant role and that the quantities concerned meant that count 1 fell within level 2 and count 2 fell within level 3. For our part we do not think there was a useful purpose to be served by categorising count 2 in this way, having regard to the appellant's overall criminality and the importance of passing a sentence to reflect that. Likewise, the fact that there may have been a proportion of the cannabis cultivated for the appellant's personal use in no way, in our judgment, having regard to the overall size of the anticipated crop, would have warranted the treatment of the appellant in any different a category either as to role or as to level. Thus it was that the range within the Sentencing Guidelines on count 1 was two-and-a-half to 5 years, with a starting point of 4 years and on count 2 the range was 26 weeks to 3 years with a starting point of 12 months.
5. By way of personal mitigation reliance was placed by Mr Green, as he has done before us today, on the following matters. First, the absence of any significant criminal record. Such convictions as the appellant has are from very long ago and in no way aggravate his current plight. Consequently this will be his first sentence of imprisonment. Secondly, the appellant was suffering from ischaemic heart disease and chronic obstruction pulmonary disease. Thirdly, he had difficulty in coming to terms with the death of his parents who had died 3 and 6 years ago. He was, by the time of the hearing, determined to address his addiction to cannabis which had been exacerbated by the depression which he had felt following the death of his parents.
6. As far as the offences were concerned, it was submitted that this was not a wholly commercial enterprise nor was it sophisticated. We have already noted and accept the absence of any proper or effective ventilation system. We accept, as we are sure the sentencing judge did, that some at least of the cannabis was for his own use. But one has to be realistic, when one is looking at an overall crop of the size which was the potential harvest in this case; the likelihood of anything more than a modest quantity of the cannabis being for his own personal use is something which must have been borne in mind by the sentencing judge and is certainly the basis upon which this court has proceeded because cannabis has a life and one cannot, however bad or debilitating one's habit may be, pretend to use anything other than a very modest proportion of a crop of the size with which this case was concerned.
7. Against that background, the timing of the appellant's plea and the initial basis of that plea the Honorary Recorder imposed a total sentence of 3 years' imprisonment, in fact the sentences were 3 years and 1 year imprisonment to run concurrently.
8. Mr Green has advanced before us a number of grounds in relation to the starting point and the failure of the judge to reflect, in fixing it, the mitigation identified above. It was submitted in his grounds that the credit to which the appellant was entitled for his plea was wrongly adjusted because the initial basis of plea which was rejected by the prosecution and ultimately abandoned by the appellant was so fatuous. Before us, it has been accepted by Mr Green that the Honorary Recorder had discretion to treat the basis of plea in the way in which he did but it is a point which nevertheless merits some consideration.
9. Unfortunately, we are not assisted, in the judge's approach to sentencing, as to the starting point which he took or the percentage by which the sentence was reduced to reflect the appellant's guilty plea. So we are left in the slightly unsatisfactory, regrettably not uncommon, position of having to second guess the judge's thought process. We think that in this case, having regard to the guidelines and the appellant's overall criminality, yet balancing the personal mitigation available to the appellant, a starting point of 4 years following conviction would have been appropriate and was in the judge's mind. By what extent did the judge reduce or might the judge have reduced sentence to reflect the appellant's guilty plea, its timing and its circumstances?
10. We observe this was not a plea entered at the earliest opportunity and is one to which no more than 25% would be appropriate. We pause to observe that a discount of 25% from a starting point of 4 years produces a sentence of 3 years. As our task is to interfere with a sentence only if it is manifestly excessive or wrong in principle, that simple arithmetical exercise might be thought sufficient to dispose of this appeal. In deference to Mr Green's submissions, we have considered his argument to the effect that the appellant did not receive due credit. He relied in his skeleton argument on the case of R v Gunning [2013] EWCA Crim 179, in which the appellant had availed himself of the Early Guilty Plea Scheme in force at the Merthyr Crown Court; he offered to plead guilty on a basis which was rejected but which had been abandoned by the time of his first appearance, whereupon he pleaded guilty and was sentenced on the same day. As Holroyde J pointed in the course of his judgment, the appellant in that case had done all that was required of him under the provisions of the Early Guilty Plea Scheme in operation at that court. The case fell within the principles laid down by the Vice-President in R v Caley & Ors [2012] EWCA Crim 821 and there was no justification for reducing credit below the level of a third.
11. In this case the situation was different but sadly one which is all too prevalent in the Crown Court . The appellant pleaded guilty at the plea and case management hearing on a basis which the prosecution were prepared to accept but which the judge regarded as wholly unrealistic. When the prosecution got its act together and realised the error of its ways and served further evidence the appellant abandoned his previously untruthful, untenable and unrealistic approach and was duly sentenced on a full facts basis.
12. Whilst every case turns on its facts, we think that the appellant was entitled to the credit which a guilty plea at the plea and case management hearing would normally have attracted. It was the prosecution's approach to the plea which was to blame for the situation which had arisen. If, when the judge had complained about the basis of plea, the prosecution had then conceded the point and acknowledged that it was unrealistic, the appellant's plea on that basis, even though it was ultimately abandoned, may well have justified a further modest diminution in the credit to which he was entitled, to reflect the wasted time and costs in obtaining and serving further evidence. But here, as in Gunning, there was little more that the appellant could be expected to do other than to plead guilty on the basis which the Crown Prosecution Service, albeit wrongly, regarded as acceptable.
13. We cannot overemphasise how important it is for the Crown Prosecution Service or other prosecuting authority to consider with care and in accordance with its public duty proposed bases of plea in all cases, whether or not they are realistic and whether or not they can properly form a basis for sentence. It is the experience of this court that this problem arises particularly and most frequently in cannabis production cases where the "personal use" basis often ignores the reality of the situation. Once it is rejected, the basis of plea is frequently abandoned and, if not, a Newton hearing, which will frequently involve evidence only from the producer to give his explanation can and should take place there and then without the need for an adjournment.
14. Returning to the facts of this case, it may be that the learned Recorder gave less than the 25% credit to which the appellant was entitled. If he did, he took a starting point correspondingly lower than the 4 years from which we believe that he should have started.
15. Either way, a total sentence of 3 years' imprisonment for this appellant's level of criminality, even taking into account his personal mitigation, cannot in our judgment be regarded as manifestly excessive or wrong in principle. With respect and deference to the submissions of Mr Green, this appeal is dismissed.