Court of Appeal
17 March 1999
Before: Sir David Calcutt QC, President,
The Rt Hon The Lord Carlisle of Bucklow, QC and
RC Southwell Esq QC
Brian Whyte
-v-
AG
Application for leave to appeal against a total sentence of 4 years and 9 months imprisonment, passed on 2 December 1998 [1998.243], by the Superior Number of the Royal Court, to which the applicant was remanded by the Inferior Number on 6 November 1998, following a guilty plea to:
1 count of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:
count 1: diamorphine, on which count a sentence of 4½ years imprisonment was imposed;
1 count of possession of a controlled drug, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:
count 2: diamorphine, on which count a sentence of 4½ years imprisonment, concurrent, was imposed;
and following an admitted breach of a 1 year probation order, with 120 hours community service and a £370.20 compensation order in favour of HM Customs and Excise, made in the Magistrates Court on 23 December 1997, following guilty pleas to:
1 count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972:
count 1: diamorphine, on which count, the probation order was discharged and a sentence of 3 months imprisonment substituted;
1 count of obstructing Customs Officers in the performance of their duty, contrary to Article 5(a) of the Customs and Excise (General Provisions) (Jersey) Law, 1972 (count 2) on which count, the probation order was discharged and a sentence of 1 month imprisonment substituted;
1 count of causing malicious damage (count 3) on which count, the probation order was discharged and a sentence of 2 weeks imprisonment substituted;
(All the sentences substituted for the breach of the probation order to run concurrently with one another, but to follow consecutively the sentences imposed on the indictment.)
Leave to appeal was refused by the Bailiff on 22 December 1998. The Applicant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court on 4 January 1999.
Advocate NJ Chapman for the Applicant
TJ Le Cocq Esq., Crown Advocate
JUDGMENT
CARLISLE JA: This is an application by Brian Whyte for leave to appeal against a total sentence of 4 years 9 months imprisonment passed on him by the Superior Number of the Royal Court on 2 December 1998; the Applicant having been remanded by the Inferior Number of the Royal Court before whom he had appeared on 6 November, 1998, and pleaded guilty to an indictment containing two counts.
Count 1 was a charge of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978; and, count 2, the possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978. The drug concerned in each count was heroin. The sentence on each count was one of 4½ years imprisonment, those two sentences to run concurrently.
Before the same Court, the Applicant admitted a breach of a 1 year Probation Order and 120 hours Community Service Order which had been passed on him by the Magistrate on 23 December 1997, when he had pleaded guilty to 3 counts, namely, count 1 knowingly being concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug, again the drug being heroin; count 2, obstructing a customs officer in the performance of his duty; and, count 3, a charge of malicious damage.
For the breach of Probation the Court ordered that on the first of those counts he serve instead a sentence of three months imprisonment; on count 2, a sentence of 1 month imprisonment; and on count 3, a sentence of three weeks imprisonment. All those three sentences were to run concurrently but consecutive to the 4½ years sentence passed on the two counts of the indictment, making therefore a total sentence of 4 years 9 months imprisonment.
Leave to appeal against sentence was refused by the Bailiff on 22 December 1998, and the Applicant now renews that application to appeal to this Court, the grounds of appeal being said to be ‘the severity of the sentence’.
The facts of the case on which the Applicant pleaded guilty can be simply stated. In the early hours of Saturday, 16 May 1998, pursuant to a warrant provided under the Misuse of Drugs (Jersey) Law, 1978, officers raided a flat, Flat 2, Conway Flats, 2 Raleigh Avenue, St. Helier. This is a small one-roomed flat and in the flat they found the Applicant in bed and his brother on a sofa in the same room. On the bed in which the Applicant was lying was a white cylindrical wrap; the wrap contained two packages both of which, on analysis, were found to contain heroin, 2.05 grams being in the first package and .688 of a gram of heroin in the second. The total amount of heroin, was therefore 2.738 grams. It had a street value of £821, and. it was divided up into 24 individual wraps clearly intended for onward sale. It was the Crowns contention, which was not challenged at the trial by the Applicant, that although the quantity of heroin was relatively small it was enough to be considered a commercial quantity.
When the Applicant was asked about the heroin he at first denied any knowledge and said that the heroin must have been left by others who had visited the flat. Later he made a further statement, in the form of a question and answer interview, in which he admitted that the heroin was his and that he intended to sell it and retain part of the proceeds for himself as well as paying his own supplier.
So far as the earlier offences for which the Applicant had appeared before the Magistrates Court on 23 December 1997, the facts are important and were as follows:- On that occasion the Applicant was detained at Jersey Airport on 23 November 1997, having flown in from Gatwick Airport. A search revealed no drugs but the Applicant admitted swallowing a quantity of heroin in a balloon. He was therefore taken to hospital and on 30 November he excreted the balloon which was shown to contain .551 of a gram of heroin with a street value of £115. The Applicant claimed (and it was accepted) that he had bought the heroin in Glasgow for his personal use.
The charge of obstruction which he faced related to the hiding of the heroin by the Applicant, and the charge of malicious damage to the £370 worth of damage that he had inflicted to his cell.
In passing judgment on the Applicant on 2 December 1998, the Deputy Bailiff specifically expressed his surprise that the Magistrate had felt able to deal with this serious offence at all rather than send it to the Royal Court for sentencing.
In sentencing the Applicant the Court took into account the fact that the Applicant had pleaded guilty to the two counts on the indictment, but the Court in all the circumstances accepted the conclusion for which the Crown had moved, namely, a sentence of 4½ years imprisonment on each of the 2 counts on that indictment.
In making this application to us Mr Chapman on behalf of the Applicant has maintained that the sentence imposed was "manifestly excessive". Mr Chapman made it clear that his application was in relation only to the sentences of 4½ years and not the sentence of 3 months for the breach of probation.
In passing this sentence of 4½ years on each count the Superior Number of the Royal Court indicated clearly that the Court was following the guidelines set down in the case of Campbell, Molloy & MacKenzie -v- AG (1995) JLR136 CofA
Before this Court, in pursuing with great persistence and clarity his application for leave to appeal against sentence on behalf of the Applicant, Mr Chapman has made two major general submissions. Firstly, that the Court in applying the guidelines in the case of Campbell did not apply them fairly; and, secondly, that in any event the guidelines in Campbell are inherently flawed and are out of step with current sentencing policy for drug offences in England and Wales and should therefore not be applied.
I propose to deal with those two submissions in reverse order.
The case of Campbell, Molloy & MacKenzie -v- AG (1995) JLR 136 CofA was decided by a full Court of five members as recently as 1995 and was intended by the Court of Appeal to set the guidelines for sentencing in future drug cases in this Island. It was intended that it should be and is binding on the Royal Court. The Court in that case specifically reviewed and revised the appropriate starting point for sentencing for offences of importation and possession with intent to supply of class A drugs. The Court said:
"We accordingly state that it is seldom that the starting point for any offence of trafficking in a class A drug on a commercial scale can be less than a term of 7 years."
It was contended by Mr Chapman on behalf of the Applicant that the case of Campbell was flawed for two major reasons. Firstly, he said, the Court of Appeal had failed to take any notice of the English case of Aranguren (1995) 16 Cr.App.R(S) 211 in which the Court of Appeal in England had said that when gauging the gravity of the offence the street value of any drug should be ignored in favour of a formula relating to weight and purity. Secondly, that the case of Campbell was out of step with current sentencing policy in England and Wales. Mr Chapman claimed that the case of Campbell had specifically rejected the test adopted in Aranguren of the purity of the drug when assessing the gravity of the offence. He went on to say that the Courts of Jersey were quite out of line with current sentencing policy in England because whilst he accepted that the tariff arrived at in Jersey could well be different to the tariff in England, he nevertheless contended that both should have a similar sentencing policy and, in particular, that the guidelines as to how the gravity of the offence was to be assessed should be the same.
The Court of Appeal in Campbell did indeed, in our opinion, consider both of these matters and this Court does not accept that a correct reading of the case of Campbell shows that it rejected any reference to the purity of the drug when assessing the gravity of the offence. In Aranguren the Court explained the reasons why it considered that the test of the street value of the drug was inappropriate in England and Lord Taylor CJ, went on to say at p215 of that Judgment:
"We therefore propose to revise the sentencing yardsticks by expressing them in terms of weight rather than street value of the drugs. Clearly, it would not be fair to take the actual weight of the consignment regardless of its purity. To achieve an accurate and fair standard applicable to all cases, we agree with the experts that it is necessary to calculate what weight of the drug of 100 per cent purity is contained in each seizure."
In the case of Campbell the case of Aranguren was considered, and what was decided was that, so far as cases in Jersey are concerned, the street value of the drug was an appropriate measure in assessing the gravity of the offence and that in Jersey cases it should continue to be a relevant consideration.
At page 146 line 39 of the Judgment the Court said:
"Both the street value and the weight of the drugs are relevant factors for the Court to know in assessing the level of involvement of the Defendant in drug trafficking."
We are quite clear in our view that the relative purity of the drug is still bound to be a relevant consideration, for example in assessing its street value and there never was any intention that the purity of the drug should or indeed could ever be wholly excluded.
Moreover, to the extent that there is any difference between the sentencing policy in drug cases in Jersey and in England and Wales, which was the second of Mr Chapmans contentions, the Court made it abundantly clear that they were setting down what they considered to be the correct policy for Jersey. The court said:
"The Island cannot be impervious to outside influences but there are nevertheless important differences between the sentencing process in Jersey and that which obtains in England."
And, later said:
"We are not persuaded, however, that anything really turns upon the differences or perceived differences between the two jurisdictions. As we have already stated, Jersey is a separate jurisdiction and entitled to fix its own proper sentencing levels."
It follows from what I have said about the distinction of sentencing in England and Jersey that references to the sentences imposed by the Courts in England in individual cases are in general of little assistance and should be discouraged.
We are absolutely clear that the Royal Court was quite right in this case in following the guidelines in Campbell and that they should continue to be followed by the Royal Court in future cases.
I turn now to the Applicants first contention that the Royal Court did not apply the guidelines in Campbell fairly. Mr Chapmans main contention was that on the facts of this case a starting point of 7 years was too high and certainly that it should not be more than 6 years. This morning he put before us ten points which he asked us to take into account in considering that submission. He relied particularly on the comparatively small amount and value of the drugs, the evidence of the nature of the dealing with which the Applicant was involved and described him as a small user/dealer.
We were referred in detail to the case of Campbell, Molloy & MacKenzie -v- AG (1995) JLR136 CofA for comparative purposes of the sentences passed in that case, and we have also been referred to several other cases both by Mr Chapman and by Mr Le Cocq who appears on behalf of the prosecution. What those cases show is that in the end every case turns on its own facts and that sentencing is not an exact science. They were in fact, in our opinion, examples of the exercise of the Campbell guidelines in practice and showed that there is indeed a degree of flexibility at the margins both to provide for a starting point well above that of 12 years in the most serious cases and in exceptional cases such as AG -v- Postill (2 October 1995) Jersey Unreported the acceptance of a shorter starting point than that of 7 years. However, we are not persuaded (despite Mr Chapmans submissions) by the Applicants argument that a starting point of 7 years was wrong in this case.
The relatively low value of the drug concerned is of course of importance. As was said in Campbell:
"Much will depend upon the amount and value of the drugs involved. The nature and scale of the activity and of course any other factors showing the degree to which the Defendant was concerned in drug trafficking."
But these are matters to be taken into account before arriving at the starting point within the band in any case of commercial dealing in Class A drugs. Campbell specifically said:
"After taking those matters into account we accordingly state that it is seldom that the starting point for any offence of trafficking in Class A drugs on a commercial basis can be less than a term of 7 years."
Of course as I have said the starting point of 7-12 years is not one that can never be departed from andwhilst it can be accepted that the amount of heroin here was towards the lower end, it was nevertheless accepted that it was a commercial amount which the Applicant accepted he intended to use for onward transmission taking some of the proceeds for himself. Further the Applicant was already on probation for an offence relating to the importation of heroin. In those circumstances and for those reasons we can see no basis on which the Court should have departed from the starting point of 7 years. We confirm therefore their decision in this regard.
So far as the mitigating circumstances are concerned the Court has allowed for a full discount of a third for the plea of guilty in arriving at its sentence of 4½ years. Mr Chapman does not challenge that. If anything this discount could, as the Crown submitted, be said to have been generous in view of the fact that the Applicant had little alternative but to plead guilty, the drugs having been found in his possession on his bed.
Those who trade in class A drugs of whatever value must realise that they are involving themselves in serious crime which inevitably will lead to condign punishment. Here, as the Deputy Bailiff made it clear, the Applicant had been dealt with leniently on a drug conviction as recently as December, 1997, and that was one of the reasons why the Royal Court came to the view that they could not reduce the starting point of 7 years in this case. This Court shares that view and the application for appeal is therefore dismissed.
However before completing this Judgment the Court would wish to add that in the course of his submissions Mr Chapman expressed concern that the Applicant felt aggrieved in that he felt from what had been said by the Royal Court that no regard had been taken of the recommendations of Mr Saunders that treatment was available that could assist the Applicant to break his drug addiction. This Court does not in any way wish to diminish the importance of any such treatment and we hope that such treatment can be made available to the Applicant during the course of his sentence and that he will be able to take advantage of it.
Finally, the Court would wish to pay a tribute to the submissions of Mr Chapman (who was only recently instructed on behalf of the Applicant) and of Mr Le Cocq on behalf of the Crown, and to thank them for being ready to take on this case rather earlier than the original hearing had been intended.
The application is, for the reasons that I have given, refused.
CALCUTT JA: I agree.
SOUTHWELL JA: I also agree.
Authorities
Campbell Molloy & MacKenzie -v- AG (1995) JLR 136 CofA; (4 April 1995) Jersey Unreported
AG -v- Postill (2 October 1995) Jersey Unreported
Crozier -v- AG (16 December 1997) Jersey Unreported
AG -v- Chadwick (30 October 1995) Jersey Unreported
Whelan: "Aspects of Sentencing in the Superior Courts of Jersey": (1996-1997) Noter-up: p1.
Aramah (1982) 4 Cr.App.R(S) 407
Aranguren (1995 ) 16 Cr.App.R(S) 211
Warren and Beeley (1996) 1 Cr.App.R(S) 233
Hurley (1998) 1 Cr.App.R(S) 299
Wijs (1999) 1 Cr.App.R(S) 181
Wood -v- AG (15 February 1994) Jersey Unreported
Pagett -v- AG (1984) JJ 57 CofA
AG -v- Coutanche (11 April 1997) Jersey Unreported