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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 >> Kay & Anor, R. v [2007] EWCA Crim 1866 (05 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1866.html Cite as: [2007] EWCA Crim 1866

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2
		5th July 2007

1. MR JUSTICE TUGENDHAT: There are two appeals before us. One by Jeremy William Kay, now aged 38 and one by Russell Quinton Summana now aged 41.
2. On 11th December 2006, in the Crown Court at Bournemouth, the appellants pleaded guilty and on 12th Janauary 2007, before His Honour Judge Beashel, they were sentenced. Kay was sentenced as follows: on count 1, for production of a Class C drug, namely cannabis, 4 years' imprisonment; on count 2 extracting electricity 12 months' imprisonment concurrent. Thus the total sentence in his case was one of 4 years' imprisonment and appropriate directions were made for time spent on remand to count towards sentence. On the same occasion, Summana was sentenced in respect of count 1 only to 4 years' imprisonment and again an appropriate direction of about time spent on remand was made. They both appeal against sentence by leave of the Single Judge.
3. The offences arose as follows. At the late afternoon on 29th August 2006 police officers saw a van pull up outside an industrial unit in Rossmore Road in Poole. The appellants were in the van, they got out and entered the address and were seen carrying items from inside the unit and loading them onto the van. These items included two vans fans and a large electrical unit. The officers approached the two appellants and spoke to them. They then entered premises and immediately smelt a strong smell of cannabis. What they found was a partly dismantled hydroponics factory.
4. Both appellants were arrested and their homes searched. From Summana's home the police recovered a quantity of cannabis leaves. Outside his home was a car registered to Kay. Inside that car police found a rental receipt for Kay's business premises and an electricity bill in the name of Williams for an address Northcote Road Bournmouth. From Kays' address they found a large amount of cash, bags containing cannabis and a set of scales. Both men declined to comment in interview. The premises at Northcote Road were searched. A total of 540 cannabis plants were recovered in what was clearly a sophisticated hydroponics laboratory.
5. The police estimated there would 3 yields a year, each of around 3.75 kilograms, and each were worth about £8,000. About £2,400 electricity was extracted.
6. The appellant were reinterviewed and, Summana again declined comment. Kay provided a written statement which set out that he owned a legitimate hydroponics business and he had supplied equipment to both addresses. He stated that the owner of the Northcote Road premises visited him on the day his invoice was due to be settled and told him he could not pay and instead handed him cannabis and £1,000. He stated he was arrested while repossessing his equipment.
7. The pleas were entered before the trial date was set. The basis of plea by Kay was as follows. First, that at all relevant times he ran a business and the business supplied and sold hydroponic equipment. Second, he supplied and fitted the equipment found at the two addresses knowing that it was intended for the production of cannabis. Third, he completed the wiring involved for the extraction of electricity and, finally, that he would have been entitled to the share of profits generated from the sale of cannabis grown at the premises although no profits were ever actually made.
8. In passing sentence the judge remarked that both appellants knew exactly what they were about, and he took the view that was a serious professional crime. He said that both had put a great deal of work into setting up what he called "a very substantial cannabis factory."
9. He referred to the fact that there were no less then 540 plants growing when the police came to one of the addresses. He referred to the fact that this Court has said that deterrent sentences are required in such cases. This is offending for the purpose of making large profits and those who do that should appreciate that, if they are caught, they will receive substantial prison sentences. The judge was alluding to the decision of this case in R v Jubb [2002] 2 Cr App R(S) 8, at paragraph 13.
10. In passing sentence on Kay, the judge said:

"Had you pleaded not guilty, you would have received in the order of at least five years."

He does not exactly say what the starting point is that he would have imposed above 5 years.

11. Kay has a number of previous convictions, including numerous offences of dishonesty, and one previous conviction for supplying drugs, and one for possession of drugs. Summana has previous convictions on seven occasions for 15 offences, none of them for drugs or the possession or supply of drugs.
12. On behalf of Mr Kay, Mr Upton submits that the sentence was manifestly excessive. The judge, he submitted, adopted too high a starting point and there was disparity in sentence between the appellant and his co-accused. In his written advice he submitted that the basis of plea should be that Kay was not the instigator. Before us he accepted that 6 years on a trial would have been appropriate, but he submitted that the plea and the personal mitigation would or should have brought the case down to a sentence below 4 years. However, we observe that this Court has made clear that it is rare for a personal mitigation to count for much in offences of this kind.
13. For Mr Summana, Mr Ward-Jackson also submitted that, in all the circumstances, the sentence was manifestly excessive. He too submitted that insufficient credit was given for the plea of guilty and the lack of relevant previous convictions and for the personal mitigation available to Summana. He notes that Summana is a married man with three children, that he had recently suffered a loss of work and consequent financial difficulties and that this had prompted him to join in this cannabis growing scheme. He argued that because the scheme was stopped early no money had been made and indeed a loss had been suffered. Further, he and his family had lost their home and were now living in DSS accommodation. He submits that the judge should have distinguished between Mr Summana and Kay on the basis that Kay was the brains behind the scheme. He drew our attention to the case of R v Kien Vi To [2006] 2 Cr App R(S) 38, which is an example of this Court taking into account personal mitigation in relation to the offence of producing cannabis. In that case the defendant had an unusual personal background. She was a Vietnamese lady who left as a boat person and had taken refuge in Hong Kong and then come to this country. She was the sole carer of her four children, aged between 14 and 9. The children were being currently looked after by her estranged husband, which the court said was not an entirely satisfactory situation. In addition she suffered from epilepsy and had fits frequently. She was also described as having a junior role in the offending. In our judgment, Mr Summana's circumstances are some way from those of the appellant in that case.
14. In our judgment, the judge in this case would have been entitled to take a starting point of 6 years, and in the circumstances of the pleas that were entered, he was entirely right to discount that figure to arrive at the total figure of 4 years' imprisonment for the appellants on count 1. We can see no basis upon which it can be said that by failing to reduce the sentence any further he was wrong in principle or that he arrived at a sentence that was manifestly excessive. On the contrary, in our judgment, the sentences were entirely correct. The appeal will be dismissed.