Lawson, R. v

Neutral Citation Number: [2012] EWCA Crim 1931 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 201202937/A3 Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 27th July 2012 B e f o r e: LORD JUSTICE RIX MR JUSTICE TREACY MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - R E G I N A v JONATHAN LAWSON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr C John-Jules appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TREACY: This appellant, Jonathan Lawson, appears before the court by leave of the single judge. He pleaded guilty at Cardiff Crown Court in March 2012 to an offence of producing a controlled drug, namely cannabis and also to possessing a controlled drug, namely cannabis with intent to supply. On 4th May 2012 he was sentenced to 16 months' imprisonment represented by concurrent terms imposed on each of those two counts on the indictment. Appropriate orders were made pursuant to section 27 of the Misuse of Drugs Act 1971. 2. 3. 4. 5. 6. 7. The facts show that on 26th October 2011 a search warrant was executed at the appellant's home address. Officers found a cannabis grinder and a small bag of herbal cannabis, a large number of plastic bags and a further bag of herbal cannabis and weighing scales. These items were found under the stairs and on the sofa in the living room. There was also found equipment and plants in the attic of the premises. The equipment was comprised of a fan, a tent-like structure and some strong lighting and there were growing some four large potted cannabis plants. The appellant's account was that he had got the equipment from a friend. He was going to pay £250 for it. He said he was a heavy smoker of cannabis and denied being a dealer. He claimed that he was merely looking after the cannabis found under the stairs. Those contentions, save for his use of cannabis, are nullified by his pleas. The potential yield of the four plants was calculated as being about 332 grams, of which about half would be the more potent female flowering heads. The forensic scientist considered that this was a small scale operation but that is that it had been competently set up. The plants were healthy and mature and ready for imminent harvesting. The bag under the stairs contained about 60 grams of female flowering heads and the scales and 15 small clear plastic bags contained a small further quantity of female flowering heads, giving a grand total of around 70 grams. The cannabis plants had an estimated value of £4,600 in terms of street yield and the female flowering heads were valued at about £900. In passing sentence the judge observed that the appellant was actively engaged in the onward supply of skunk cannabis to others. He was in possession of either potential or actual drug material for onward supply in excess of £5,500. In accordance with the guideline the appellant was assessed as playing a significant role in the matter; he had set up what was described as a "one man mini cannabis farm" and was acting as a farmer. Once the crop matured and was harvested it was intended to be supplied and the materials found under the stairs clearly represented already harvested material. This appellant is 38. He has been convicted of some 44 offences between 1990 and 2008, mainly for dishonesty but in more recent times, his offences have involved violence or the threat of violence. He has a conviction of possession of a controlled drug in 1991. That drug is presumed to have been cannabis. 8. 9. There were medical reports available to the court along with a pre-sentence report and references . The medical report showed that this appellant has been alcohol dependent for a number of years. He is reported as being a regular user of cannabis and having used crack cocaine in a heavy way in the past. Arrangements had been made for admission to hospital for detoxification from both drink and drugs. The grounds of appeal urge that the starting point under the guidelines should have been no more than 12 months' imprisonment and that there should have been a reduction from that to represent the lack of any significant aggravating features and the presence of some mitigating features, including guilty plea. The court was urged to consider a suspended sentence. 10. The grounds which were submitted to the court were made without the benefit of the consideration of the recent decision of this court in the case of R v Healey & Ors [2012] EWCA Crim 1005. This case is covered by the Sentencing Council's recent guideline on drugs which came into effect on 27th February 2012. The offences of producing a controlled drug and of possession with intent to supply are, in the context of this case, properly to be viewed together. The overall picture is one of the production of cannabis on a relatively small commercial scale, but with a view to making not insignificant profits. This is not a case of domestic production for personal use involving a small number of plants. The commercial element and the fact that the appellant was the organising mind and perpetrator of the venture properly put this case into category 3 of the guideline, with a significant role, whether the production or the supply guideline is referred to. The effect of that will produce a starting point of 12 months' imprisonment, with a range of 26 weeks to 3 years custody. 11. The appellant has a significant criminal record, but there is nothing which, in our view, is of direct relevance to these offences. It is however clear that the appellant has been a long term cannabis user. 12. There are identifiable aggravating features, in that profit over £5,000 was in prospect and also that the operation was ongoing with purpose bought equipment. The calculation of profit was not in dispute. On the credit side, the appellant can point to an early guilty plea. There is also evidence of his having made or at least acquiesced in arrangements with a view to addressing his alcohol dependency and his cannabis use. Whether this has gone far enough to count greatly in mitigation is open to question. 13. In our judgment, an immediate custodial sentence was warranted in all the circumstances. The remaining question is whether the term imposed was too long. We have benefited from a consideration of the decision in Healey. It must be remembered that that case was primarily concerned with production offences not associated with an admission of an intention to supply. To that extent this case is somewhat different. Care therefore needs to be taken in considering the sentencing levels in Healey compared with the facts of this case. 14. In our judgment, a sentence of around 18 months after a trial would have been appropriate on the facts of this case, taking account of aggravating and mitigating features including the guilty plea. We have therefore come to the conclusion that the SMITH BERNAL WORDWAVE term which was imposed was too long. We consider that allowing appropriate credit, the term of 18 months after a trial should be reduced to reflect the mitigation of the guilty plea by substituting a term of 12 months in its place. To that extent this appeal is allowed. 15. LORD JUSTICE RIX: The appeal is allowed. The sentence of 16 months is quashed and a substituted sentence of 12 months is imposed. SMITH BERNAL WORDWAVE