Chen, R. v [2010] EWCA Crim 446

Case No.200905980 A3[2010] EWCA Crim 446
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 2nd March 2010
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE HAMBLEN
MR JUSTICE HICKINBOTTOM
Between
R E G I N ACrownv
Between
MING CHEN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss N Hunter (Solicitor Advocate) appeared for Appellant
J U D G M E N T
[1]MR JUSTICE HAMBLEN: On 29th October 2009, at the Crown Court at Derby, the appellant pleaded guilty to being concerned in the production of a Class B drug, namely cannabis, and was sentenced by His Honour Judge Wait to three years' imprisonment. He appeals against sentence by leave of the single judge.[2]The background facts are that on 5th August 2009, police officers raided a large detached building in Belper that had been let as office space and found that it had been converted into a cannabis factory. The appellant was found in a room on the ground floor. One room downstairs had three small propagators with baby cannabis plants in them. Three rooms on the first floor and two on the second floor had been converted by lining them with plastic sheeting, and it was apparent that the electricity supply had been bypassed to power all the equipment. A total of 708 mature cannabis plants and a further 402 nursery plants were found, with a potential for growth of 63 kilograms of cannabis per crop with a value in excess of £200,000. There was the potential for three or four crops a year.[3]The appellant was arrested. When interviewed, he said he had lived and worked there as a gardener for three months after meeting some Chinese in a casino in Edinburgh. He stated that three other men had set up the system, that he would have been paid £2,000 in full at the end of a four month period, and that he received between £50 and £60 a week for subsistence. He thought the plants were illegal but said he had not set the system up.[4]In sentencing the appellant, the judge stated that he had played an essential plant in a large-scale and sophisticated set-up for the production of cannabis. The equipment had been purchased, property rented and then set up so that it could produce about half a million pounds worth of cannabis each year. The appellant had been in charge of the daily care of the plants. Whatever his state of knowledge was when he was recruited, he undoubtedly came to realise that he was part of a large-scale criminal enterprise. The judge took account of the limited reward he would have received and gave him full credit for his plea. If he had not pleaded guilty the judge said the sentence would have been four and a half years' imprisonment, so that, giving him full credit of a third, the appropriate sentence was three years.[5]The appellant is a Chinese illegal immigrant. He was born on 4th March 1983 and has no criminal record in this country.[6]The essential ground of appeal is that having regard to the leading case of R v Xu [2008] 2 Cr App R (S) 50, the indicated sentence after trial of four and a half years for someone acting as a gardener was manifestly excessive. It is submitted that this would be more appropriate for a manager, which the appellant was not.[7]In R v Xu the court described the role of gardeners as follows at paragraph 2:
"Typically in such operations there will be one or more workers (sometimes described as 'gardeners') tending the plants in the particular premises, carrying out what might be described as the ordinary tasks involved in growing and harvesting the cannabis. They will usually, but not always, have had little or nothing to do with the setting up of the operation, but will simply be doing their task on the instructions of those running the operation. They will often be illegal immigrants, who are being exploited because of their vulnerability; and they may well be paid either nothing, but provided with board and lodging, but paid simply enough for subsistence."
Save that he was being paid £500 per month in addition to subsistence, the appellant would appear to fall within that general description. The court in R v Xu indicated that for those involved at this lowest level a three-year starting point would ordinarily be appropriate, before taking into account any plea of guilty and personal mitigation.[8]In arriving at a higher starting point of four and a half years in the present case, the judge relied in particular on the size and sophistication of the set-up and the fact that the appellant would have realised that he was part of a large-scale enterprise.[9]As illustrated by the case of R v Wong [2008] 2 Cr App R (S) 111, the level of production is relevant to the starting point. In the present case the level of production was significantly greater than that considered in R v Xu. As such we consider that the judge was justified in taking a higher starting point than that indicated in R v Xu. However, given that there was no evidence that the appellant was anything more than a gardener, we are satisfied that a 50 per cent uplift in the starting point was too much and that as a result the sentence was manifestly excessive. Giving the appellant due credit for his plea, we consider that the appropriate sentence in this case was two years six months. We accordingly allow the appeal, quash the original sentence of three years and substitute for it a sentence of two years six months.