England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 7th November 1997

B E F O R E :

LORD JUSTICE WALLER

MR JUSTICE OWEN

and

MR JUSTICE SULLIVAN

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R E G I N A

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PETER KNIGHT and STEPHEN DOOLEY

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR S DRIVER appeared on behalf of Knight

MR K SUTTON appeared on behalf of Dooley

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

JUDGMENT

MR JUSTICE OWEN: On 13th February 1997 in the Crown Court at Liverpool the appellant Knight pleaded guilty to two counts, the appellant Dooley pleaded guilty to five counts. Sentence was adjourned. On 14th March they were sentenced in this way. The appellant Knight, for producing cannabis, three years' imprisonment with an order for forfeiture of plants and paraphernalia; possessing cannabis with intent to supply, three years concurrent. The appellant Dooley, for the offence of producing, three years' imprisonment; for simple possession of cannabis, six months' imprisonment; for possessing cannabis with intent to supply, three years' imprisonment; and for possessing prohibited weapons, 18 months' imprisonment on each to run consecutively to the three years making a total of four years and six months. They appeal against sentence by leave of the single judge.

On 21st May 1996 the Regional Crime Squad were keeping observation on these appellants. In particular they were watching Dooley's movements. They followed him. They saw him buying gardening equipment for hydroponic propagation. He had taken Knight's house to enable him to grow cannabis. This was at the beginning of this enterprise which these two were setting up. The documents show that they spent £2,400 on PH meters, lights, pumps, hydroponics and growing tanks. On 1st August 1996 the police went to search the home of Knight. He was not there but Dooley was. All the windows and doors of the garage had been sealed off with plastic sheeting and tapes. There were plants growing in pumped water. There were a number of large lamps, heat lamps, rotating fans and around the garage there were seed trays, propagators and plant food with instruction manuals and leaflets. There were eleven large cannabis plants. Cuttings had been taken from several of them for propagating elsewhere. It was said that the likely yield by weight of the plants that were found in the garage was about 555 grammes, a total value estimated to be in the range of £10,500 to just under £15,000. In the bedroom there were some plants which were being dried. When he was asked about the matter he could not very well deny that they were and he could not very well deny that there were propagators and nutrients there for the production of cannabis. He said he rented the house from Knight.

There then followed a search of Dooley's home. There were found in two locked metal gun cabinets an electric stun gun which did not in fact work at the time because there was no battery, but had a charged battery been provided it would have worked, and a pepper spray. Under a floorboard there was found £1,800 in cash. Dooley said that the gun and the pepper spray were for his self protection. He bought them when he lived in south Africa where they were common defences. He brought them back with him amongst his personal effects. He said he did not appreciate that in this country they were prohibited weapons, although they are, and he thought that provided he did not take them anywhere in public then that would be permissible. He described how he came to be involved with the propagation by reason of an advert which he had seen.

So far as Knight was concerned he was arrested a few days later. He at first made denials. He said Dooley was just a drinking partner and they bought the odd car together and he allowed Dooley to store gear in his garage. The police, perhaps understandably, said that they were somewhat surprised that he had not noticed what Dooley was doing, but he said he had not at first. They said: "Didn't you notice that your electricity bills had increased?" - which of course they would have done on such a system - and he said he had noticed they went up a bit. However in due course he pleaded guilty.

The judge when sentencing said that he had discovered the one case which he had taken into account and upon which he was basing his sentencing and that case seems to have been the reported case of Lyall 16 Cr.App.R (S) 600. In that case the appellant had pleaded guilty to producing cannabis and for that he had been sentenced to three-and-a-half years, but he was convicted of possessing cannabis with intent to supply - he having denied that. The total sentence was such that it was said it could not be validly criticised. We have also been referred to the reported case of Challis (1997) 1 Cr.App.R (S) 45; Snow 10 Cr.App.R (S) 93; and Stearn 4 Cr.App.R (S) 195. The point which is taken by both appellants so far as the cannabis offences is concerned, the main point, is that although this was a professional organisation and a sophisticated organisation in operation, as the judge said, nevertheless the size of the business was very much smaller than was the size in Lyall where the system was producing up to three kilogrammes of cannabis in a year. Of course part of that may well be explained by the fact that this operation was in its early days. One applicant was seen purchasing the equipment and it was not all that long afterwards that the raid was made. But that the business was going to grow and intended to grow is abundantly clear.

In addition it is said in respect of this particular operation and these applicants that there is a distinction between Lyall and this case in that Lyall did plead not guilty in respect of the one offence and that again was something which did not happen here since certainly so far as the one applicant was concerned there was an immediate admission and so far as the other was concerned there was a plea of guilty.

It is of course always possible to make distinctions and nobody can suggest that one is entitled to say this was only half the size of the other and therefore there should be only half the sentence or any other such arithmetical calculation. What the judge has to do is to look at the offending and to bear in mind what clearly was intended. What was intended here was a sophisticated operation. It was clearly the beginning of what was intended to be a serious financial enterprise that would have brought, had it been successful, considerable financial rewards and it seemed as though it would be successful. Indeed if one looked at the garage, said the judge, one would have seen that there were grow-beds containing 47 plants each with eventually a potential yield of something like 15 to 20 grammes.

The situation therefore is that this enterprise was very much in the same league as the enterprise which was set up in Lyall. The judge had that case, he said that he considered it and we have to ask, considering it now ourselves can we say that the three years which he passed, as opposed to the three-and-a-half which was passed in the case of Lyall, was manifestly excessive? We cannot say that. That sentence of three years was a sentence which was well within the normal range for this type of offence.

So far as the other offences are concerned for Dooley, the judge seems to have had suggested to him that these were in the possession of the applicant as some sort of relic - certainly that is how he seems to have taken the suggestion - and he said 'no' they were for use, but that did not mean that there was an intention to take them out. It was not proved to the contrary of that which had been suggested by Dooley, namely that he had brought them back from South Africa where they would have been perfectly normal and that he did have them for possible self-defence. That of itself might be in some circumstances not a particularly good point since to have a revolver or to have a sawn-off shotgun just for defence would still indicate wrong doing of a serious kind. But these particular weapons were not likely to kill, that is the first thing. They were apparently designed for self-defence and it is right to say that although they may not have been kept in that way they were nevertheless upstairs in a loft and locked away so it does not seem that there was any very great danger of them being used. But there was undoubtedly suspicion and suspicion which was voiced by the Recorder is clear, but that they had been used does not seem to have been so and it does not seem that it was likely that they would be used in the circumstances. Accordingly we do regard that sentence of 18 months as being manifestly excessive. We quash that sentence and substitute for it a sentence of nine months' imprisonment, but we see nothing wrong in making that consecutive. Accordingly, so far as he is concerned, the appeal will be allowed to that extent, otherwise the appeal is dismissed.