Lister, R. v [2014] EWCA Crim 2290

[2014] EWCA Crim 2290Case No 2013/3728/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 31 October 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE KING
THE RECORDER OF NOTTINGHAM
HIS HONOUR JUDGE STOKES QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
JOE LISTER
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 7831 8838(Official Shorthand Writers to the Court)
Mr J Naylor appeared for AppellantMr F Osman appeared for Crown
J U D G M E N T
[1]THE RECORDER: This appeal is concerned with the valuation of benefit for the purposes of confiscation proceedings. This appellant was sentenced at Chichester Crown Court on 30th October 2012 in respect of two allegations. He was charged and pleaded guilty to an offence of being concerned in the production of cannabis, which offence occurred on 11th September 2011. He had already been committed for sentence in respect of an offence charged as occurring on 7th October 2011 for producing a controlled drug, namely cannabis. He was sentenced by His Honour Judge Wood QC to serve sentences of 21 months' imprisonment, ordered to run concurrently.[2]Those offences arose out of two separate raids by the police on two different addresses both relating to the appellant. On 11th September 2011 police visited 15 Elmhurst Close in Angmerring, West Sussex and discovered a cannabis grow consisting of 22 plants which had not reached full maturity. These plants were examined by an expert who estimated that the total likely yield of skunk-type cannabis when they reached maturity would be approximately 616 grams or about 21 ounces. The street value was estimated to be £6,160. The wholesale value between £3,360 and £3,780.[3]The following month police officers armed with a warrant issued under the Misuse of Drugs Act went to the appellant's home address at 21 Cheviot Close in East Preston. There they discovered the appellant. He showed them into a utility room where a plastic garden tent had been erected containing approximately 80 cannabis plant heads that were being dried out on racks along with lighting and ducting equipment. These drugs were identified as 468 grams of skunk-type cannabis with a street value of £4,350. No wholesale value was provided.[4]Although the appellant pleaded guilty to both allegations, his basis of plea, not accepted by the Crown, was that he had not participated in the setting up of the Elmhurst Close operation and that he was not intended to receive any financial benefit from it. He also asserted that the drugs found at his home address were for his own personal use.[5]The judge held a Newton hearing at which the appellant gave evidence. The judge rejected the appellant's account. The appellant sought to explain that he rented out the premises at Elmhurst Close to tenants and had no interest in the cannabis being grown there. He admitted however that he had driven to Guildford to acquire the necessary equipment. His fingerprints were found on the reflectors of the heat lamps and some silver foil. He also accepted he had provided the aggregate in which the plants were being grown.[6]The judge, hardly surprisingly in those circumstances, concluded that these efforts to assist were not done simply out of generosity towards his tenants. He was much more closely involved than he pretended.[7]The appellant also stated that the flowering heads discovered at his own home were purely for his own use. Again the judge rejected his account, finding that the amount of the cannabis discovered and the circumstances in which it was found were inconsistent with personal use. It may be of significance when one turns to the confiscation proceedings that the judge found that the appellant lied to him in his evidence.[8]The confiscation proceedings came on for hearing on 17th May 2013 before the same judge. The appellant was represented at those proceedings but by a different advocate, not Mr Naylor who appears before us today. Unfortunately, neither Mr Naylor or the court has a transcript of those proceedings owing to a fault in the recording equipment. What can be said, and this is not disputed, is that the sentences passed by the judge following the Newton hearing, when placed alongside the brief note from counsel who represented the appellant at that hearing, showed that the judge sentenced the appellant in accordance with Level 3 of the sentencing guideline and placed him in the category of a significant role. At the confiscation hearing the judge appears to have accepted what had been described as an agreed figure as to the future notional value of the cannabis plants found at Elmhurst Close. Those plants, it is agreed, had not yet reached maturity but they were on the evidence two weeks away from being ready to crop. In the event, the judge made a confiscation order against the appellant in the sum of £11,730. This agreed benefit figure appears to derive from the street value of the drugs from both addresses (£10,510), the cost of setting up the grow at Elmhurst Close and the equipment found at the appellant's home in respect of which he had given evidence at the Newton hearing. That came to £2,220. The figure totalling £12,730 must have been rounded down to the benefit figure of £11,730. According to the financial statement served by the Crown, the appellant's known assets were more than sufficient to accommodate such an order and he was given until 17th November 2013 to pay with nine months' imprisonment in default.[9]The single

judge in giving leave to appeal said:

"I have the gravest doubts as to the merits of this appeal. However if there is any doubt as to whether section 79 of the Proceeds of Crime Act 2003 is confined to the value of goods at the time of seizure rather than the market value at some future date it should be resolved by the full court."
[10]The ground upon which leave was given has already been confronted by this court in the case of Elsayed [2014] EWCA Crim. 333. As this court said, the valuation of benefit is a fact-driven exercise. We do not consider it necessary to set out the statutory provisions. They are set out in Elsayed and it is not and cannot be disputed that this appellant benefited from his criminal conduct on the judge’s findings of fact and the basis upon which he must have sentenced the appellant. The essential point made on the appellant's behalf, and identified by the single judge, is whether the benefit figure should have included the notional yield value of the cannabis or its arguably lesser value at the time it was seized by the police.[11]The appellant in his written grounds of appeal seeks to draw a significant difference in value according to the time at which the cannabis came into the possession of the police. Had it been seized two weeks later the argument would have proceeded on a different and, we suspect, shorter basis.[12]As we have indicated, the arguable ground upon which the single judge gave leave has already been addressed by this court in Elsayed. In the written submissions, prepared by the previous advocate reliance was placed on the decision of the House of Lords in Islam [2009] UKHL 30 as supporting the argument that the judge should not have assessed the value of the drugs at Elmhurst Close in the way that he did. The market value, it is suggested, is the illicit market value of the plants upon seizure. We disagree. This submission, with respect, confuses the valuation of benefit with the assessment of the available amount. Islam, as this court observed in Elsayed, involved an early interception by customs officers of imported drugs. The case was concerned with the question of whether drugs could have a market value, not for the purposes of deciding benefit but for the purposes of deciding the available amount, which is not the issue here. On a proper analysis it does not support the appellant's written submissions. As the Judicial Committee observed, and as was underlined by this court in Elsayed, (see in particular paragraph 25), while the market that has to be contemplated in assessing the available amount under section 9 of the 2002 Act must be taken as one to which the defendant can resort legally, when it comes to calculating the amount of his benefit the judge has to look to the market where such goods are ordinarily bought and sold. In the case of illegal drugs, as here, that market must be the market where the defendant will be expected to dispose of the drugs for profit and his benefit must be valued accordingly. The assessment at street value of the drugs in this case by the expert witness, which cannot be disputed, has been made on exactly that basis. How else on the judge's findings at the Newton hearing were these drugs to be disposed of? In the absence of any evidence from the appellant, and we also bear in mind that this valuation was agreed before the confiscation order was made, the assessment of the appellant's benefit could not have proceeded on any other basis. The judge, in our view, was not only entitled to proceed on that basis, but he was, in the absence of any other evidence, bound to do so. Had he wished to do so, the appellant would have given evidence that he intended to sell the drugs to another dealer on a wholesale basis. We are not entirely surprised that he chose not to do so, but it must follow from the judge's findings at the Newton hearing in which the defendant gave evidence and was not believed, that the drugs were being produced at Elmhurst Close and the flowering heads dried out at the appellant's home for onward transmission on the streets.[13]The assessment of the appellant's benefit is accordingly correct. We are also satisfied that this assessment of benefit in the circumstances of this case represents a proportionate outcome. Consequently this appeal must be dismissed.