England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2004] EWCA Crim 3337

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		Neutral Citation Number: [2004] EWCA Crim 3337
		No: 200403333/A1

IN THE COURT OF PPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

Thursday, 16th December 2004

B e f o r e :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE DOUGLAS BROWN
MR JUSTICE MACKAY
____________________

	R E G I N A
	-v-
	DAVID TAYLOR
	MARCUS PAUL HATTERSLEY

____________________

Computer Aided Transcript of the Stenograph Notes of
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____________________

MR I STOREY appeared on behalf of the APPELLANT TAYLOR
MR A WATERMAN appeared on behalf of the APPELLANT HATTERSLEY
MR J WORRALL appeared on behalf of the CROWN
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE MACKAY: On 3rd July 2002 in the Sheffield Crown Court, the appellants, David Taylor and Marcus Hattersley, were convicted of conspiracy to produce a controlled drug of Class B, cannabis, and on 4th July were each sentenced to 7 years' imprisonment. They appeal against that sentence. Their applications for leave to appeal against conviction were refused by the Single Judge, and neither renews his application.

Accused with them were a number of others including one John Doman. He had been sentenced by the trial judge to 8 years' imprisonment. That sentence, as will be seen, was later reduced by this Court to one of 7 years. This case is returned to this Court on a Reference by the Criminal Cases Review Commission.

The facts were these. Police investigating a burglary in Sheffield found, in some commercial premises, what was quite evidently a cannabis factory. In it were a quantity of cannabis plants and hydroponic equipment, and, when fully searched, the premises were seen to contain over 400 cannabis plants and a large and sophisticated hydroponic system for cultivation. It was a self-contained, well- planned and professional operation, which produced successful crops of the skunk variety of cannabis. It seemed to have been in operation for about 6 months. The enterprise was capable of yielding a crop worth about £50,000 per month.

Between September 2001 and June 2002, the two appellants and the co-accused, Doman, were responsible for the acquisition of these premises, the purchase of the necessary equipment and the creation of the factory. Taylor, Hattersley and Doman provided entrepreneurial spirit. Taylor was a qualified electrician and helped to install the equipment in the process, reducing the overheads by bypassing the electricity supply to maximise profits. A fourth man, Simon Gray, was known as 'the gardener' and supplied botanical expertise.

In terms of their previous convictions, the appellant, Taylor, had six previous convictions but none since 1984, when he was 29 years old. Hattersley had no convictions at all. Doman had a more substantial record, and had 12 previous convictions for 25 offences.

The judge's approach to sentencing was this. He treated the appellant, Taylor, as a man of good character, in view of the length of time which had passed since his last conviction. The appellant, Hattersley, was undoubtedly entitled to that description. Addressing the co-defendant, Doman, he said:

"Unfortunately for you you cannot claim to have a good character. There is a history of dishonesty with some violence."

He summarised the contents of Doman's previous convictions.

The current appellants, understandably, submit that it is right to treat the three principal prime movers behind this enterprise in that way. The sentencing judge is also, it is accepted, entitled to make no distinction between the three men as being the joint entrepreneurial brains behind this venture. He highlighted the professionalism and expertise involved, the high efficiency and productivity in botanical terms of the factory, largely thanks to Mr Gray's contribution and the appellant, Taylor's, personal input as an electrician. He was plainly, after having heard a lengthy trial, treating the three men as indistinguishable in terms of their culpability and also as being at the very top of the enterprise in an organisational sense.

In express terms, in his sentencing remarks, he went on to explain the difference of 1 year between sentences on Taylor and Hattersley and that on Doman. He said that was: "because you [Doman] do not have the mitigating factors that are available to Mr Hattersley and indeed Mr Taylor."

That was and can only have been a reference to the differences in their respective previous offending history.

On 13th November 2003, this Court considered applications for leave to appeal against sentence, presented by Simon Gray, the botanical expert, and John Doman. Gray's application was dismissed. Doman's application was based on two arguments. First was that the level of sentencing was pitched too high, having regard to comparable authorities such as R v Blake & Owen [1997] 1 Cr App R(S) 394, R v Chamberlain [1998] 1 Cr App R(S) 49 and R v Jubb [2002] 2 Cr App R(S) 8. The second argument was that Hattersley, who was described in the application as 'the central figure' in the conspiracy, only received 7 years.

It is plain from the judgment of the Court that the second argument advanced was not accepted. The reduction in sentence which the Court made on that application was plainly on the basis that a term of 8 years on the authorities cited to it was "rather too high" and the justice of the case required reduction in the case of Doman to 7 years.

Both appellants now argue, in the light of that reduction, for a corresponding reduction in their sentences to preserve the distinction which the trial judge was at pains to make between them and Doman. The essential argument is thus one of disparity, and it is encouraged by the terms of reference of the Criminal Cases Review Commission itself.

We see the force of this argument. Notwithstanding what this Court said in R v Sykes [1982] Cr App R(S) 173, and particularly the terms in which this Reference by the Commission is framed, this decision should not be taken as any form of encouragement for a proliferation of disparity arguments, either in this Court or below, which seek to draw fine distinctions based on some arithmetical evaluation of the weight or lengths of the previous convictions of co-defendants in such cases.

The position here is different. The trial judge sentenced both Taylor and Hattersley as men of good character, something which Doman was not able to claim as a benefit in terms of mitigation. A right-thinking member of the public might well think that something had gone wrong if Doman's sentence was reduced as being too high, he being of equal culpability in terms of his offending, but these appellant's sentences received no corresponding reduction.

For that reason, we allow this appeal. We quash, in each case, the sentence of 7 years' imprisonment and substitute for it one of 6 years. To that extent this appeal is allowed.