Case No: 2011/0097/A3
Neutral Citation Number: [2011] EWCA Crim 1044 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice 
Strand London, WC2A 2LL 
Date: Tuesday, 5th April 2011 
B e f o r e:

PRESIDENT 
(LORD JUSTICE HUGHES)

MR JUSTICE TREACY 
MR JUSTICE EDWARDS-STUART

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	R E G I N A	 	
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	RAJBINDER RATTU		

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Mr A Baker appeared on behalf of the Applicant
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J U D G M E N T

MR JUSTICE TREACY:
1.	On 8th November 2010, which was the date originally fixed for the trial, this appellant pleaded guilty to a count of being concerned in the production of a class B drug, namely cannabis. This plea was tendered before Her Honour Judge Watson in the Crown Court at Wolverhampton. On 9th December 2010 she sentenced this appellant to 23 months' imprisonment and made directions in relation to time served on remand and under electronically monitored curfew, pursuant to the provisions of section 240 and 240A of the Criminal Justice Act 2003 . The appellant has been granted leave by the single judge. 
2.	There were two others involved in the matter who also pleaded guilty to the same count which this appellant faced. They had pleaded guilty at a slightly earlier stage of proceedings than this appellant had. What had happened was that all three had originally denied a charge of producing cannabis and shortly before the date fixed for trial, count 2, which was the charge of being concerned in the production of a class B drug, was added to the indictment. That count was added at a hearing about a week prior to the date fixed for trial. The two co-accused pleaded guilty there and then but this appellant did not. However, he notified his intention to plead guilty to the new count some three days later. It meant that the trial date was vacated and that the matter was listed for him to enter his plea.
3.	The circumstances of the offence are as follows. On the evening of 15th June 2010 police were contacted about suspicious activity in the vicinity of commercial premises in the centre of Wolverhampton. A number of vans had turned up at the premises and individuals had been seen coming and going from the premises. When police officers arrived they found four vans outside. One of them had reversed up to the doors of the premises. Another had 66 mature cannabis plants wrapped in plastic bin liner bags inside it. Officers found a further 16 bags containing cannabis plants waiting to be loaded into the van. The officers searched the premises and quickly came upon the appellant and one of the other two. They ran away but were arrested after a short chase down a corridor. A third man was found upstairs and was also arrested.
4.	A full search of the premises revealed a sophisticated cannabis factory containing about 1100 plants at various stages of maturity. It was estimated that a total yield of about 40 kilograms of cannabis could have been produced, giving a street value of around £200,000. The appellant declined to comment when he was interviewed.
5.	When he tendered his plea he put forward a basis of plea which was very similar to that put forward by the two co-accused. His account was as follows. That he had been at the home of one of his co-accused when the co-accused received a call on his mobile phone. The appellant was told that there was a cleaning job available and was also told that the other co-accused was coming to pick the pair up and take them to the job. The appellant went on to say that he and the other man were collected in a red transit van and that when he arrived at the destination he realised that the job was not a cleaning job but was to do with cannabis. Despite that knowledge, he had agreed to move bags from upstairs to downstairs and while he was in the process of doing that the police arrived and arrested the three of them.
6.	This appellant is 26 years of age. He had previous convictions. None involved drugs, but he had a conviction for theft as an employee recorded against him in 2007 and a caution for a public order matter in 2008. He had not previously served any custodial sentence.
7.	The pre-sentence report showed that the appellant accepted responsibility for what he had done and stated that his actions were financially motivated. There were three favourable character references.
8.	The grounds of appeal assert that the sentence was manifestly excessive. The written grounds submit that the judge took too high a starting point and failed to take sufficient account of the guilty plea and the basis of plea. Mr Baker, who has appeared today, has essentially confined himself to two points. First of all submitting that insufficient credit has been given for the guilty plea, and secondly, drawing our attention to the well-known authority of Xu [2008] 2 Cr. App. R (S) 50 and submitting that in the light of that decision the judge should have taken a lower starting point. 
9.	The sentencing judge said that she was taking account of the basis of plea. That clearly showed that this appellant only became criminally involved at a late stage in events, that is upon arrival at the warehouse. He had originally attended at the premises for an innocent purpose, according to the basis of plea, and it was on that basis that he had to be sentenced. Then, with a view to financial gain, he became involved in the preparations for physical removal of a significant number of cannabis plants. The judge accurately described the appellant as playing a “lowly and menial role”. She described the overall operation as a very sophisticated and professional operation and plainly had in mind the case of Xu . In that case, this court indicated that those at the lowest level in an enterprise of this type of scale should be subject to a starting point of three years, prior to taking account of plea and personal mitigation. It is however right to observe that in giving that guidance this court described those at the lowest level as “workers tending the plants in the particular premises, carrying out the ordinary tasks involved in growing and harvesting the cannabis.” Such people are often referred to as gardeners. This court went on to observe: “They would usually have little or nothing to do with the setting up of the operation but would simply carry out their tasks on the instruction of those running the operation.” 
10.	In our judgment this appellant was involved at an even lower level than those described in Xu . The judge appears to have recognised that as she took a starting point of 27 months. Although it is correct that this was a large scale operation, this appellant had not previously been involved prior to the night when he went to the premises and therefore would not have been in the same position of appreciating the nature and scale of the operation as someone who, employed as a gardener, had visited the premises on a number of occasions and had tended the plants in the course of doing so. 
11.	In our judgment, the judge's starting point failed to make sufficient allowance for the limited involvement disclosed by the basis of plea to which the judge had to be loyal. We consider that a starting point of 18 months or a little more discounted to 15 months to reflect guilty plea would have been appropriate in the circumstances of this case.
12.	Accordingly, we allow this appeal by substituting a term of 15 months for the 23 months imposed. Time credited for curfew and remand in custody will continue to apply.