No: 200504736 A8 
Neutral Citation Number: [2005] EWCA Crim 3186
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 22nd November 2005
 
B E F O R E:

LORD JUSTICE GAGE 

MR JUSTICE CRESSWELL 

HIS HONOUR JUDGE GOLDSACK 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 93 OF 2005    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR T REES appeared on behalf of the ATTORNEY GENERAL
MR EN BURGESS appeared on behalf of the OFFENDER
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J U D G M E N T
1.	LORD JUSTICE GAGE:  This is a reference by the Attorney General of a sentence which, in his opinion, was unduly lenient.  The matter is referred to this court pursuant to Section 36 of the Criminal Justice Act 1988.  We grant leave.  
2.	The offender, Leonard Michael Shobbrook, is aged 61.  He pleaded guilty to two offences: one of producing cannabis contrary to Section 4(2)(a) of the Misuse of Drugs Act 1971 and one of supplying cannabis contrary to Section 4(3)(a) of the Misuse of Drugs Act 1971.  He pleaded guilty to each offence at the earliest opportunity at the Bristol Magistrates' Court.  On 27th June 2005 he was committed to Bristol Crown Court for sentence.  On 5th August 2005, at that Crown Court, before HHJ Ticehurst, the sentence was deferred until 28th November 2005 on condition that the offender obtained employment, that his physical state could be considered with a view to a community punishment order and that he committed no further offences.  
3.	The facts in summary are as follows.  The offender rented industrial units 6A and 7A Upper Perry Hill, Southville, Bristol.  These units were separate garage areas connected by an inner room which was used as a growing room.  There was living accommodation above on the first floor.  On 18th April 2005 police officers went to the premises with a search warrant.  They found 307 cannabis plants in the growing room, together with harvested cannabis flowering heads.  The potential cannabis yield from 301 of those plants was estimated to be about 15 kilograms.  
4.	When the police officers arrived, the offender was on the premises but he escaped through a rear exit and climbed over a wall.  In the course of scaling the wall, the offender fell and fractured his heel bone.  He was arrested soon afterwards when attempting to cross a bridge.  He received hospital treatment and was not interviewed until 5th May 2005.  At interview, he said that he had begun to cultivate cannabis at the premises towards the end of 2004 and that he had previously harvested one crop which he had sold to a dealer for £6,000 between January and February 2005.  The first charge represented the offender's then current crop and the second charge was the supply in early 2005. 
5.	The pre-sentence report indicated that the offender was remorseful of his actions.  He said that he had resorted to producing cannabis in order to pay the rent for the industrial unit after his furniture business had started to fail.  He was assessed as presenting a low risk of re-offending and a community punishment order was recommended.  On that basis, the sentence was deferred on the conditions to which we have referred.  The expectation was that the offender would come back to court in October 2005, having made a full recovery from the injuries sustained when he was climbing the wall and that he would then be able to complete a community punishment order.  
6.	We have been told that the street value of the cannabis seeds, namely 15 kilograms, would realise approximately £42,000.  The remaining six plants and assorted cultivated flowering heads might realise in the region of £12,000.
7.	The Attorney General identifies one aggravating feature; namely the production and supply of cannabis was a commercial operation conducted on a large scale.  The Attorney General accepts that there are a number of mitigating features present.  There are, and stress has been laid upon them by counsel appearing for the offender before us: first, the offender is 61 years of age; second, he is a man of previously good character; third, he pleaded guilty at the earliest opportunity at the Magistrates' Court; fourth, the evidence to establish the second charge came from the offender's confession; fifth, the defendant had shown remorse.  
8.	In his submissions to this court, the Attorney General has referred the court to a number of decisions to which we shall refer in a moment.  For the offender, Mr Burgess, who has put the case before us realistically and attractively, relies specifically on all five of the mitigating features.  In addition, he submits, and indeed it is accepted by counsel for the Attorney General, that these offences come at the lower end of the scale.  Next, he relies upon the fact that this offender had complied with all of the conditions imposed upon him by the Crown Court judge and acted in an exemplary fashion.  In the circumstances, he was expecting in October to be sentenced to a community punishment order.  Realistically, Mr Burgess accepts on his behalf that that is no longer possible and that inevitably this court will pass a sentence of imprisonment.
9.	It is not in dispute that this court has power to increase his sentence if found to be unduly lenient, notwithstanding the sentence had been deferred, see R v L (Deferred Sentence); R v J [1999] 1 WLR 479.  The question for this court is: was the first sentence unduly lenient and if so, should it be increased?  We unhesitatingly reach the conclusion that it was unduly lenient and the sentence must be increased.  
10.	In R v Donovan [2005] 1 Cr.App.R (S)65, a decision of this court made after the reclassification of cannabis and the increase of the maximum sentence, it was said that, in the case of possession with intent to supply, a custodial sentence was almost inevitable.  In that case, the sentence imposed was one of 6 months on the basis that the appellant had pleaded guilty to possession with the intent to supply 409.9 grams of cannabis.
11.	The other cases to which we have been referred in our judgment establish a range of sentence for cultivating cannabis on a plea of guilty of between three and five years.  Again, realistically, Mr Burgess does not dissent from that proposition.
12.	We take the view that this offence can properly be described as coming towards the bottom end of that scale.  In the circumstances, in our judgment, the offender might have anticipated, on a guilty plea at the Crown Court, a sentence of at least three years.  However, taking into account all the relevant mitigating circumstances to which we have already referred and, in addition, the normal factor of double jeopardy which is particularly important in this case, we take the view that the sentence now on this reference must be a sentence of 21 months' imprisonment and to that extent we increase the sentence from a deferred sentence.  That will mean that the offender must now surrender to custody.
13.	MR REES:  May I just deal with two ancillary matters?  First -- and I think your Lordship dealt with it in the last sentence -- unless the court otherwise directs, the sentence begins from the date at which he would have been sentenced by the Crown Court, so, in circumstances where, as in this case, the offender is not in custody, your Lordship could direct either the date start from when the sentence was passed, or it starts from today, or a date in the future to give the offender a chance to put his affairs in order.  
14.	LORD JUSTICE GAGE:  It must start from today.  We have taken into account, arriving at the sentence, that he has complied with the provisions.  Accordingly, it must start from today. 
15.	MR REES:  My Lord, the second matter is this: it is purely a technical point but at the Crown Court -- obviously the court had to consider the confiscation proceedings which flow from a conviction on an offence of this nature.  A confiscation hearing, as I understand it, has been set for 5th December of this year.  The Crown Court had the choice; it could either deal with the confiscation proceedings prior to the sentence or it could postpone them and, my Lord, we would invite the court to approve the fact that the confiscation hearing had been postponed until 5th December, just in case anything arrives out of it.  
16.	LORD JUSTICE GAGE:  Mr Burgess? 
17.	MR BURGESS:  Yes, I am content with that.  I cannot and I will not take a tactical point about it.  Can I raise one further matter, which is that he was in fact committed for sentencing in respect of the two charges: production of cannabis and supply of cannabis.  The end date of production charge was 18th April of this year, by which time, as I understand it, a new regime of custodial sentences under the 2003 Act had come into operation, whereas the end date for the supply charge was 28th February 2005 and therefore antedating the change in the custodial regime. I do not know -- 
18.	LORD JUSTICE GAGE:  What is the effect of that then?  I do not need to say that the sentence must be concurrent on each term.  
19.	MR BURGESS:  I suspect the effect of that is non-existent in reality because it is the same as below: four years. 
20.	LORD JUSTICE GAGE:  Yes, I think it must be. Very well. Thank you very much. Thank you both.