Neutral Citation Number: [2011] EWCA Crim 1022
Case Nos: 2010/05149/A6, 2010/05231/A6,
2010/05221/A6, 2010/05219/A6, 2010/05152/A6
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT COVENTRY
HIS HONOUR JUDGE COATES
T20097245
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/04/2011
Before :

LORD JUSTICE THOMAS
SIR GEOFFREY GRIGSON
and
RECORDER OF REDBRIDGE, HHJ RADFORD
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Between :

	Regina	Respondent	
	- and -		
	Scott Allan
Syedhaidar Ali Gilani
Paul Danny Bisset
Robert Charles Brandon
Mathew Robert May	Appellants	
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- - - - - - - - - - - - - - - - - - - - -

Mr R Offenbach for the Appellant (Allan)
Mr P Sutton for the Appellant (Gilani)
Ms D Middleton for the Appellant (Bissett)
Mr T Smith for the Appellant (Brandon)
Mr I Jobling for the Appellant (May)
Mr M Duck for the Respondent 

Hearing date : 30 March 2011
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Judgment

Sir Geoffrey Grigson : 
1.	These five appellants were granted leave to appeal against sentence by the single judge.  Each had pleaded guilty at the Crown Court at Coventry to the same conspiracy, the particulars of which were that: “...on a day between the 4th day of September 2008 and the 20th day of August 2009 conspired together and with others to supply a controlled drug of Class C namely cannabis.”
2.	Gilani had pleaded guilty on 28 September 2009.  Bisset and Brandon pleaded guilty on re-arraignment in May 2010.  Allan and May pleaded guilty on re-arraignment in June 2010.
3.	On 25 August 2010 each appellant was sentenced to eight years imprisonment, the Judge having decided that the appropriate sentence after a trial would have been 12 years.  He said that with the possible exception of Gilani he would make no distinction between the appellants to reflect the timing of the pleas of guilty.  In the event he sentenced each appellant as if he had pleaded guilty at the first opportunity, a decision which has left Gilani with some sense of grievance.
4.	There were three other defendants.  Bowthorpe and Atkins had been convicted of the same conspiracy.  Donovan had pleaded guilty to being concerned in the supply of cannabis.  Each was sentenced to 12 months imprisonment suspended for two years.  In addition Atkins and Bowthorpe were ordered to do 250 hours unpaid work in the community and to pay £1,000 towards the costs of the prosecution.  Donovan had a supervision order attached to his sentence and was ordered to pay £200 costs.  The basis of sentence determined by the Judge was that each had been involved only as a driver and only on one occasion.
5.	The prosecution case against these appellants was that each was involved in a wide-ranging and serious conspiracy whereby cannabis factories run and controlled by others were identified and then attacked.  If there was anyone on the premises they would be driven off by the threat or use of violence, thus allowing the conspirators to harvest and remove the cannabis for onward supply.
6.	As is apparent, the supply of cannabis was the last and arguably the least serious element of the scheme.  The prosecution case necessarily involved at the least a conspiracy to burgle and at worst a conspiracy to rob.  These elements were not reflected in the indictment and that omission has particular consequences.
7.	The facts relied upon by the prosecution were largely agreed.  It is necessary to set them out in some detail.
8.	The unravelling of the conspiracy began on 15 July in Magyar Crescent, Nuneaton.  41 Magyar Crescent was a cannabis factory.  In the early hours of the morning neighbours reported an ongoing burglary at that address.  Men were seen leaving the premises with large plastic laundry bags.  The police attended and found four such bags full of mature cannabis.  Outside the house was a Vivaro van in which police found a bill of sale to Bisset and a forged insurance note.  Both documents had Brandon’s fingerprints on them.  Gilani was found hiding in a bush nearby.  He was in possession of the keys to a Ford Fiesta.  In that vehicle police found plastic laundry bags of exactly the same type as those containing the cannabis.  The ‘guardian’ of the cannabis factory, a Vietnamese named Tam, had been seen fleeing the scene.  He was traced and arrested.  He subsequently pleaded guilty to cultivation of cannabis.
9.	At 6.15 am a VW Caddy van arrived.  Bowthorpe was the driver.  Brandon was in the van pretending to be asleep.  Both were arrested.  The destination on the van’s satellite navigation equipment was 49 Magyar Crescent.  Bowthorpe was in possession of £1,100.  He lied in interview.  Brandon said nothing.  Cameras on the motorway revealed that the Vivaro and the Fiesta had travelled to the address in convoy.  Bisset was arrested at his home in East London on 5 November where officers found a tracking and jamming device and a machete on which were traces of cannabis.  Also found was a sim card registered to his address which proved contact between Bisset and Brandon.
10.	Each of those arrested had a mobile telephone and evidence of calls and messaging supported the proposition that each was an active conspirator.
11.	It was plain that there had been a planned raid on the cannabis factory, the guardian driven off and the cannabis harvested.  Bowthorpe and Brandon had come to assist.  The conspirators had only been thwarted by the arrival of the police. 
12.	The investigation was widened and produced evidence linking these appellants to other cannabis factories some of which had been the subject of attack.  In the early hours of 9 June 2008 police were called to 75 Slade Road, Clacton.  It was a cannabis factory.  No one was present but there were blood stains on the floor.  Near the premises police found Atkins driving a Vivaro van.  It was the same vehicle that was subsequently to be used in the attack on 41 Magyar Street.  Atkins was arrested and his mobile phone was seized.  An officer rang the last missed call and, pretending to be Atkins, arranged a meeting.  It was Scott Allan driving an Audi motor car who turned up.  That car was registered to May and blood staining was found inside it.  The blood staining in the house and in the car came from May.  An injured Vietnamese man was found nearby but after treatment in hospital he disappeared.  Another Vietnamese was arrested and convicted of cultivating cannabis.  Atkins was later to tell the police that May had been injured by the Vietnamese guardians of the factory.  
13.	A cannabis factory was found at 47 Beach Road, Eastbourne in June 2008.  A bloodstain was found on the mantelpiece which was proved to emanate from Gilani. 
14.	Another cannabis factory was found at 48 Lower Road, Beeston and enquiries led from that address to other factories at 166 Station Road and 61 Hunter Road, Beeston and from there to an abandoned cannabis factory at Lenton.  166 Station Road was logged as a destination in May’s satellite navigation equipment.
15.	On 28 June 2008 a cannabis factory at 25 Edgwarebury Gardens, Edgware was attacked.  The Vietnamese guardians were assaulted and locked up by the attackers.  Police enquires led from that address to another cannabis factory at 5 Kinross Close, Edgware which had been used for the cultivation of cannabis but was in the process of being dismantled.  This address was logged as a destination on May’s satellite navigation equipment and Gilani’s DNA was found on a cigarette end recovered from the premises.
16.	On 7 July 2008 a substantial cannabis factory was found at 191 Nutbeam Road, Eastleigh.  This address was logged as a destination on the satellite navigation equipment in Bowthorpe’s van.
17.	On 15 July a burglary in progress at 5 Clovelly Avenue, Newcastle was reported.  By the time police arrived there was no one present but the premises had obviously been used to grow cannabis.  This address was logged as a destination in Bisset’s satellite navigation system.
18.	In October that year an abandoned cannabis factory was found at 12 Finedon Road, Wellingborough.  This address was logged as a destination in May’s satellite navigation system and details of another abandoned cannabis factory in Birmingham were found in May’s diary.
19.	Scott Allan and Donovan were involved in an attack on a cannabis factory in Great Yarmouth and on Allan’s mobile phone police found video footage of an attack on another cannabis factory which showed the guardians being mocked and the removal of the cannabis.  In Allan’s satellite navigation system was the address of another cannabis factory in Wiveliscombe.
20.	In April 2008 Brandon, Bisset and May were stopped near Luton and found to be in possession of pruning shears, gloves and a crow bar.
21.	There were also links to premises in Scotland.  The prosecution case was, and still is, that these appellants were parties to a sophisticated and extensive conspiracy to acquire and distribute cannabis.
22.	The Judge had tried Atkins and Bowthorpe so had heard the evidence against them which naturally included much of the evidence against these appellants.  In addition he had been provided with a schedule of agreed facts, a full prosecution opening note from that trial, a summary of the prosecution case and finally a document entitled ‘Defendant Involvement Summary.  Mr Duck who led for the prosecution then as he does now opened the case before sentence.
23.	The prosecution case is succinctly put in the Summary:
“The Prosecution contends that the above named defendants are each a party to a sophisticate conspiracy to supply cannabis having stolen the product from the original cultivators.  The system adopted by the defendants is simple- they discover the location of cannabis factories around the UK and carry out raids upon those premises.  The individuals responsible for guarding the cultivated cannabis are overcome with violence and appear to flee the premises- sometimes having been badly injured by those responsible for the raid.”
24.	In the full ‘Opening Note’ the prosecution referred to the different roles played by those party to a conspiracy.  They asserted that Atkins and Bowthorpe, whilst not being senior players, had played a very significant role.  The ‘generals’ were alleged to be those named as the other conspirators on the Indictment, that is these appellants - none of whom was present, having pleaded guilty.
25.	When Mr Duck opened the case, the Judge having indicated that he did not need the case opened as against Donovan, Atkins and Bowthorpe, asked if there was anything to distinguish the roles played by these appellants.  Mr Duck replied, “Precious little”.
26.	Gilani was the only defendant who had put in a written basis of plea, in which it was asserted that Gilani took no part in the planning and organisation of the offence.  The Crown did not accept it.  His Counsel, Mr Sutton, raised the basis of plea when he began mitigation, urging the Judge not to sentence his client as an organiser of the conspiracy.  The Judge asked Mr Duck
“Is that your case ? That he is not a manager ?”
Mr Duck replied,
“I’m in no position to say, but clearly anybody who goes by this enterprise knows of its nature, but I can’t say he was the orchestrator of it.”
The Judge pressed him as to whether Gilani’s position in the hierarchy was any different from the others.  Mr Duck said,
“It’s frightfully difficult to distinguish ....  I can’t categorically put them in rank.”

27.	There followed an exchange between Mr Sutton and the Judge in which the Judge made it clear that it was for him to decide what role was to be assigned to any defendant based upon the evidence already before him unless there was to be a Newton hearing.  Mr Duck and Mr Sutton then advanced their respective viewpoints.  The prosecution position was finally put in these terms:
“...one can only in fact rely on the evidence ....  I’m prepared to acknowledge he was not someone who sat down and organised and orchestrated this.”
That satisfied Mr Sutton whose client had always admitted the facts upon which the prosecution case was based and he went on to stress that his client was not a planner nor an organiser.
28.	Before the exchange which we have just outlined, counsel for the other appellants had advanced their mitigation.  On behalf of Brandon, Mr Smith argued that his client had not been involved in the violence and that, whilst it might be found that his client had recruited Bowthorpe and another to the conspiracy, his role was no more than a foot soldier.
29.	Miss Middleton on behalf of Bisset asserted that he was merely a driver paid £50 per trip, that he was not involved in the violence nor in the distribution of the cannabis.  Mr Offenbach on behalf of Allan argued that Allan was involved at a low level and that he had not been involved in the violence either.  Mr Jobling invited the Judge to sentence his client, May, on the facts which did not prove that he was involved either in violence or organisation.
30.	We note that after the Judge heard the mitigation for Brandon, Bisset, Allan and May those defendants were remanded to the cells so did not hear what was said on behalf of the others, particularly Gilani.  In our view, short of extreme circumstance or voluntary absence, each defendant should be present throughout the hearing.  We can see no justification for removing those defendants from the Court at that stage.
31.	When the Judge sentenced, he said this: 
“I am satisfied that the object of the conspiracy was to supply cannabis in two ways: firstly by stealing any cannabis plants which you found and secondly to facilitate the establishment of other factories by stealing the growing equipment as well.  I cannot see any other conclusion to come to than that and I am told that growing equipment was taken from 6 addresses which you raided.  Nothing has been said by your Counsel about how this conspiracy operated; nothing meaningful has been said on your behalves about your roles in this conspiracy and I have, therefore, had to draw my own conclusions from the evidence which I have read and the evidence which I have heard because there was a trial.  I have concluded that this was a huge enterprise.  You had to have mixed in criminal circles to enable you to discover the locations of the cannabis factories and you must have had the necessary outlets for what you stole and you went prepared to use force, and you did use force, to ensure the success of your enterprise.
It was sophisticated and well planned but of those before this court, you are the prime movers ...”

32.	Each appellant has advanced a number of grounds of appeal, some more cogent than others, but common to each appellant are two:
i)	That the Judge’s starting point of 12 years was too high for a conspiracy to supply a Class C drug and 
ii)	That the Judge was wrong to sentence on the basis that each was a prime mover.
33.	That violence or the threat of violence was to be used to implement the conspiracy must have been appreciated by those involved more than casually in this conspiracy.  It is common knowledge that those who run cannabis factories do not leave them unguarded.  In our judgement the indictment should have reflected the three disparate elements of this conspiracy namely: conspiracy to rob, conspiracy to burgle and conspiracy to supply.  That would have ensured that any defendant admitting guilt would have been clear as to what he was admitting and the Court would have known exactly on what basis he was to be sentenced.  Any dispute between prosecution and defence could have been resolved by a jury.  At the least, any defendant pleading would have submitted a written basis of plea as Gilani did in this case.  The failure of the prosecution to prefer charges which accurately reflected the evidence led the Judge to select a starting point of 12 years which, whilst it might have been appropriate for the case advanced by the Crown, was too high for a conspiracy to supply a Class C drug which was the offence that the appellants admitted.
34.	In the Attorney-General’s Reference No. 22 of 2010 [2010] EWCA Crim 1754 Pitchford LJ having reviewed the relevant authorities said this:
“In our view, had CK been a relatively senior member of the distribution chain for 214 kilograms of sub-standard cannabis resin, the appropriate sentence would have been 7 to 8 years after a trial, or five to six years or so after a timely plea of guilty.  If, on the other hand, K was to be sentenced as a trusted and paid caretaker of this quantity of drug, the appropriate sentence would have been 5 to 6 years after a trial and 3 to 4 years after a timely plea of guilty.”
35.	As to the second point, in this Court we pressed Mr Duck to identify where in the hierarchy of the conspiracy these appellants stood.  He was unable to do so.  His argument was that these appellants were the conspirators.  That does not sit comfortably with his concession that he could not say that Gilani was an ‘orchestrator’ and that he could not distinguish the role of one of these appellants from any other.
36.	When it was pointed out by My Lord, the Honorary Recorder of Redbridge, that there was no evidence 1) implicating any of these appellants in the acquisition of the intelligence which enabled the conspirators to target cannabis factories, 2) implicating these appellants in the distribution of the cannabis and 3) of criminal lifestyle, he conceded that others must have been involved and at a higher level.
37.	We are driven to the conclusion that the concession that Mr Duck made in respect of Gilani should have been made in respect of each of his co-defendants. 
38.	It follows that these appellants should have been sentenced on the basis that they were, at the least, enthusiastic foot soldiers in a conspiracy to supply a Class C drug and not as prime movers in a conspiracy to rob.
39.	Each appellant has advanced matters of personal mitigation.  We have considered them but have reminded ourselves of what Pitchford LJ said in the Attorney-General’s Reference cited above at paragraph 29.
“We observe, however, that with the exception of mitigation which went to K’s role in the offence, his mitigation was personal.  Personal mitigation is of limited value to an offender who is engaged in drug trafficking for personal gain.”

40.	In all the circumstances here we think it appropriate to adopt the approach of the learned Judge and consider no distinction should be made between the appellants on the basis of the degree of their involvement nor their personal circumstances.

41.	The appeal of each is allowed and the sentences of eight years imprisonment are quashed.  In respect of Allan, May, Brandon and Bisset we substitute a term of four years imprisonment.  To reflect Gilani’s early plea the sentence is three years and six months.