Lilley, R v

A sentence imposed within the applicable guideline range will not be altered merely because it is severe, including where it is a first custodial sentence. The appellate question is whether it is manifestly excessive, assessed by reference to the seriousness of the offending, the offender’s role, aggravating features, guilty-plea credit and mitigation.

A sentencing judge may move above the guideline starting point where the quantity and sophistication of a cannabis-production operation justify it. Mitigation based principally on anticipated future progress may properly be given limited weight.

The appellant pleaded guilty at Chester Crown Court to producing cannabis. The production operation involved around 100 plants, equipment requiring substantial expenditure, and bypassed electricity. The sentencing judge treated the appellant as having a significant role in a Category 3 offence and imposed 20 months’ imprisonment after allowing one-third credit for the guilty plea.

The appellant appealed against sentence. He relied on his effective good character, efforts to stop using drugs, new work and relationship, low assessed risk of reoffending, and the prospect of vocational study. The central issue was whether the custodial sentence was manifestly excessive and should have been suspended.

1. Appeal dismissed. The sentence of 20 months’ imprisonment was not manifestly excessive.

2. The sentencing judge’s reference to a two-year upper limit for the relevant guideline range was erroneous. The applicable Category 3 range extended to three years. In substance, however, the judge selected a starting point of two and a half years, which was within that correct range.

3. There was no basis to fault the judge’s movement above the one-year guideline starting point. The number of plants substantially exceeded the indicative quantity of 28 plants. The operation was relatively sophisticated, involved substantial equipment and bypassed electricity, and had a potentially significant value.

4. The appellant received full one-third credit for his guilty plea, despite delay caused by an initially unrealistic basis of plea. The court accepted that he had no relevant previous convictions and that the mitigation was important. Much of it nevertheless depended on hoped-for future improvement, rather than established rehabilitation.

5. The sentence was harsh for an offender of effective good character facing a first custodial sentence. That did not make it manifestly excessive. The seriousness of the production offence, the correct application of the guideline, and the generous plea reduction justified the sentence.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 686, dismissed the appeal against sentence.

• Crown Court at Chester: The appellant pleaded guilty to producing cannabis and was sentenced to 20 months’ imprisonment on 11 March 2016.