2000/131
8 pages
COURT OF APPEAL.
13th July, 2000.
Before: The Hon. M.J. Beloff, Q.C., President,
de V. G. Carey, Esq., Bailiff of Guernsey; and
C.S.C.S. Clarke, Esq., Q.C.
Kevin Francis Joseph TRAVIS
-v-
The Attorney General.
Application for leave to appeal against a total sentence of 6 years' imprisonment passed on 8th May, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 24th March, 2000, following a guilty plea to:
2 counts of conspiring with others to 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 & Excise (General Provisions)(Jersey) Law, 1972:
count 1: cannabis resin, on which count a sentence of 6 years' imprisonment was passed;
count 2: amphetamine, on which count a sentence of 3 years' imprisonment, concurrent, was passed.
[The accused also pleaded not guilty to counts 4 and 5 of the indictment, and the Crown abandoned the prosecution on these counts.
Two co-accused, Sean Culkin and Paul Munro, who have not appealed, were sentenced respectively to 8 years and 7 years' imprisonment on 8th May, 2000, after pleading guilty to counts 1 & 2 and to a further count 3: conspiring to import cocaine].
The application for leave to appeal was refused by the Deputy Bailiff on 1st June, 2000, and on 5th June, 2000, the appellant exercised his entitlement under Article 39 of the Court of Appeal (Jersey) Law, 1961 to renew the application to the plenary Court.
Advocate S.E. Fitz for the Appellant;
C.E. Whelan, Esq., Crown Advocate.
JUDGMENT.
THE PRESIDENT:
This is the judgment of the Court.
1. This is an application for leave to appeal against a total sentence of 6 years' imprisonment passed on 8th May, 2000, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 24th March, 2000, following a guilty plea to:
2 counts of conspiring with others to 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 & Excise (General Provisions) (Jersey) Law 1972:
count 1: cannabis resin, on which count a sentence of 6 years'
imprisonment was passed;
count 2: amphetamine, on which count a sentence of 3 years'
imprisonment, concurrent, was passed.
2. The application for leave to appeal was refused by the Deputy Bailiff on 1st June, 2000, and on 5th June, 2000, the Appellant exercised his entitlement under Article 39 of the Court of Appeal (Jersey) Law, 1961 to renew the application to the plenary Court.
3. Two co-accused, Sean Culkin and Paul Munro, who have not appealed, were sentenced respectively to 8 years' and 7 years' imprisonment on 8th May, 2000, after pleading guilty to counts 1 and 2 and to a further count 3: conspiring to import cocaine.
4. The Royal Court said this in their judgment at paragraph 2:
"These accused have pleaded guilty to drug trafficking on a large scale. It was a carefully planned enterprise and the drugs had a street value of over £400,000. The accused went into the enterprise with their eyes open. Indeed, their only motive was to make a substantial profit. As the Court has said on numerous occasions, such persons must expect substantial prison sentences. In each case the burden of the sentences is borne not just by the offenders, but also by those closest to them. This is a very sad but inevitable consequence of serious criminality."
We endorse this view.
5. The Appellant contends that the sentence of 6 years' imprisonment was manifestly excessive and wrong in principle.
6. The relevant guidance is set out in the leading case of A.G. -v- Campbell, Molloy, & MacKenzie (1995) JLR 136 CofA. The Court there said this:
"Class A drugs
We begin by endorsing the sentencing approach laid down by this court in Clarkin v. Att. Gen. The proper approach is that the sentencing court should adopt a starting point which is appropriate to the gravity of the offence. Having established the starting point, the court should consider whether there are any mitigating factors and should then make an appropriate allowance for them before arriving at its sentence. A substantial allowance may be expected where a defendant has identified his supplier or otherwise provided information which is of significant assistance to the authorities.
In the passage from the judgment in Clarkin which we have cited above, this court laid down a band of starting points between six and nine years' imprisonment. A starting point of nine years' imprisonment was considered to be appropriate for an offender whose involvement in drug dealing was akin to that in Fogg v. Att. Gen. Fogg had been arrested in possession of 1,000 units of LSD. He had arrived in the Island only a short time before his arrest. Within a few hours he had received this large quantity of LSD and had set about selling it. He was also sentenced at the same time for other offences involving the possession and supply of cannabis. He was a mature man with one previous conviction for a drugs offence. In our judgment, the appropriate starting point for a case of drug trafficking of that nature would now be one of 12 years' imprisonment. If the involvement of a defendant in drug trafficking is less than that of Fogg, the appropriate starting point will be lower. If the involvement of a defendant in drug trafficking is greater than that of Fogg the appropriate starting point will clearly be higher. 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. We propose also to vary the lowest point of the band established in Clarkin; we accordingly state that it is seldom that the starting point for any offence of trafficking in a Class A drug on a commercial basis can be less than a term of seven years."
Later the Court said this:
"We agree with the Attorney General that it would be desirable to adopt the same sentencing approach for all drug offences irrespective of whether the drug involved is in Class A or Class B. We also agree that in cannabis cases the appropriate starting points in the case of quantities over 30 kg. are a minimum of 10 years' imprisonment; in the case of quantities between 10 and 30 kg. are 6 to 10 years' imprisonment and in the case of quantities between 1 and 10 kg. are 2 to 6 years' imprisonment. We reiterate, for the avoidance of doubt, that these figures are starting points before any mitigation is taken into account on any ground. We also reiterate that no distinction is to be drawn between cases involving importation and those involving supplying or possession with intent to supply. The guidelines set out above apply equally to all cases involving the trafficking of Class B drugs on a commercial basis. We accept that analysis by the weights described in the bands above will not be appropriate for offences involving amphetamines. The approximate street values will, however, afford some guidance to the Royal Court in dealing with such offences on a case by case basis."
7. While these two passages which we have read might, on a purely literal and disjunctive reading, be thought potentially inconsistent with each other, we consider that they should fairly and properly be interpreted to mean as follows: The Court should consider first what would be the appropriate penalty for the offence (before any mitigation) upon the basis that the tariff figures stated in Campbell assumes that the defendant played a significant (or, as the case may be, the sole) role in the offence. If therefore the amount of drugs involved was more or less than the quantity referred to in the Campbell tariff or the defendant's degree of involvement was less, the appropriate increase or reduction should be made. This provides the starting point for the offence committed by the defendant. Thereafter there may be mitigation for a guilty plea, good character, sympathetic personal circumstances, co-operation with the police and other recognisably relevant matters. [We observe that in practice, whether one takes a degree of involvement as a factor in the assessment of starting point, or as a factor in assessing whether that starting point should be adhered to may well be a matter of significance in terms of the final sentence, given that the discount for a guilty plea is conventionally made in percentage terms, not by a constant amount].
8. On that basis we note that the amount of cannabis imported in this case was more than 49 kg. In Campbell 30 kg was said to attract a starting point of a minimum of 10 years. In our view, unless the Appellant's role could be shown to be on a lesser scale than that of his co-conspirators, the 12 years' starting point taken by the Royal Court was entirely consonant with Campbell, and with the later unreported case of AG v. Dicker, Driscoll and Wakeham (28th October, 1998) Jersey Unreported where the importation of 55 kg. of cannabis attracted a starting point of 12 years.
9. The main thrust of Ms Fitz's highly effective argument on behalf of the Appellant was that insufficient weight had been given to the fact that the Appellant had indeed played a relatively minor role in contrast with his co-accused.
10. In this submission, she faced the difficulty that those different roles had been respected in the judgment of the Court. Given that the sentences of the co-accused on Count 3 had been concurrent with their sentences on Counts 1 and 2, and that their previous involvement in drugs related offences had been insubstantial, the Royal Court's reference to the fact "that the Crown Advocate has fairly and correctly attributed responsibility for their respective involvement to each accused giving proper weight to all the mitigating factors in moving his conclusions" can lead to no other conclusion. Nor do we think that the Royal Court were wrong in any way as to their weighting of the respective roles of each of the accused.
11. The Crown's overview of the case stated as follows:
"From the late summer of 1998 through into the winter of that year the three accused agreed between themselves and others to import controlled drugs into Jersey. Various plans were discussed and settled into an agreement by which the drugs were to be brought from the Liverpool area into Jersey. Travis [the Appellant] Culkin and Munro formed the Jersey end of the agreement. They lived in Jersey and wanted the drugs imported. The drugs were to be obtained from a contact of Travis and Culkin. He lived in Liverpool and is called Stuart Farrell. A man named 'George' was to collect the drugs from Stuart Farrell in the Liverpool area, take them to the South coast of England and transport them across the Channel to Jersey in his boat. It was agreed that 'George' would be paid £20,000 for his services, and in fact that money was paid to him in cash by Culkin and Munro. What the accused did not know was that 'George' was an undercover police officer.
The accused had unwittingly involved undercover police officers in their planning throughout. They had recruited them to bring drugs into Jersey in return for payment. On 15th December, 1998, as arranged the drugs were collected by 'George' from Stuart Farrell in Warrington. However, 'George' simply passed the drugs over to the English police, by pre-arrangement. For operational reasons Farrell's arrest took place the next day (Wednesday 16th December, 1998). He is to stand trial in Liverpool Crown Court for having supplied the drugs. The trial is listed for early June, 2000.
Also on the next day (16th December, 1998) 'George' pretended to bring the drugs into Jersey by boat. In accordance with their arrangement Culkin and Munro arrived to meet 'George' at the Albert Quay. They handed over the remaining instalment of the cash payment, and the States of Jersey police closed in. Culkin was arrested at the scene. Travis, who had not been present at the harbour, was arrested at home that day. Munro evaded arrest by hiding in a bin near the harbour, but was arrested at his home the following day."
12. In that context the following facts taken, again, from the Crown's statement and conclusions were common ground and I quote:
"The Crown says that the key features of Travis' [the Appellant's] criminality are these:
· he was the first to evince an interest in 'George's' supposed ability to import controlled drugs; he pursued the drugs topic; he introduced his partners Culkin and Munro to 'George' for the specific purpose of organizing the importation of drugs;
· he took an active part in a series of meetings to pursue the plan. He initiated some of those meetings. He was the first to specify the type and quantity of the drugs which eventually featured in the case;
· he participated in the negotiation of the fee to be paid to 'George' and in discussions as to the method of importation;
· while in England he introduced 'George' to Stuart Farrell, the supplier; he brokered, and was present at, the meeting between 'George' and Farrell;
· he arranged the meeting in Torquay between 'George', Culkin, Munro, Farrell and the boat skipper;
· he claimed to have procured the drugs in the case on credit when Culkin and Munro were having difficulty in obtaining them;
· he was motivated by money throughout in that he was to be "looked after" by 'George' for having brokered the business in the way described.
The Crown does not say about Travis [the Appellant]:
· that he was aware that a quantity of cocaine was to be included in the consignment;
· that he had a direct financial stake in the drugs in the sense of having contributed to their purchase price or to 'George's' importation fee;
· that he planned any direct involvement in the receipt or distribution of the drugs in Jersey.
It is also true to say of Travis that a point was reached at which he decided to distance himself from the later, mechanical aspects of the importation. He was content to be at one remove having effected introductions and contributed at the planning stages in return for an expected reward for those services. This was mirrored in the readiness of Culkin, Munro and the officers themselves to distance themselves from Travis in the later stages. They regarded his discretion, particularly when drunk, as suspect. The officers nevertheless professed the continued intention to reward Travis for his part in the conspiracy, as he knew."
13. In our view the fact that the Appellant acted as a broker between two principals, but thereafter absented himself from the mechanical part of the operation does not signify a reduction in his role from that of a lead player to a mere spear carrier. Indeed a cogent argument could be made that in some senses his role as initiator was of greater significance than that of his co-accused, while his absence from the scene when the drugs were landed reduced his chances of detection compared with theirs. In any event, as the summary we have cited illustrates, it is by no means the case that the Appellant was wholly inactive after the initial introductions. In short, he was involved from the outset; he expected to share in the profits of this shameful trade; and he cannot take refuge from the consequences because of the distinctive nature of his role. The transcript of the conversation between the undercover officers and the co-accused about the Appellant's involvement to which we have been referred do not paint a picture at odds with the agreed facts. His role may have been different; in the Court's judgment it was not less.
14. We now turn to the second limb of the Appellant's argument which focused on mitigation. A psychologist's report dated 27th April, 2000, was put before the Royal Court and was made available to us. The key passage of analysis was to this effect:
"Mr Travis [the Appellant] is a man of 33 who has a generally low level of intelligence and who has a personality which is characterised by mood instability with a propensity toward rash behaviour, excessive worry, and a history of chronic pain over the past two years. Against the background already described, therefore, it should come as no surprise that he is finding himself in the position which he is currently facing. My own psychological formulation at this stage would be that Mr Travis' educational and general learning difficulties went unnoticed, and that this has had a fundamental effect on his level of self esteem, leading to feelings of social exclusion. The fact that he left school early supports the above. More importantly, there is a suggestion that Mr Travis has not benefited from consistent and appropriate parental guidance which combined with his lack of education may have contributed to him veering towards characters on the fringes of society amongst whom he could, temporarily at least, elevate his 'street credibility'.
The onset of his chronic pain as a result of his involvement in a road traffic accident which he felt was not his fault, had disastrous consequences on his already fragile personality and lack of personal resources. The loss of his employment, deteriorating marital relationship, and his excessive worries about the future without sufficient income, combined with his propensity toward rash behaviour, created the appropriate conditions for his involvement in the activities for which he is now facing a prison sentence. Whilst bearing in mind that Mr Travis may well have knowingly become involved in the activities for which he is charged, I consider that, nevertheless, the results on his IQ test suggest that he is a poor judge of character and that he does not have the benefit of sophisticated conceptual thinking and reasoning related to the dynamics of certain situations or to the intent of others. In this sense, it may be argued that he makes decisions which are pretty much based on cause and effect, particularly since he may not always be able to make informed choices in terms of long term consequences."
15. The Royal Court made no specific reference to this report. It may be that they were not over impressed by it in the context of the sentencing exercise which they had to carry out. For our part we can only note that the assessment of the Appellant's intelligence contained in it was at odds with his record of achievement at school in particular in his CSE examinations. It was also at odds with the Appellant's actual actions in the implementation of this conspiracy. We, too, did not find the report influential in our assessment.
16. The further suggestion that the Appellant was overborne by the glamorous lifestyle enjoyed during the course of this conspiracy - meals at fashionable restaurants paid for by the undercover police, and the like - seems to us an argument of last resort. It does not excuse, nor, even, in our view, does it truly explain.
17. The true mitigation in this case was the guilty plea. For this a full and fair discount was given by the Royal Court. The Appellant could not legitimately expect more. No real point of principle arises in this case and we therefore dismiss this application for leave. The proviso in Article 35(4)(b) of the Court of Appeal (Jersey) Law, 1961 is applied in full.
Authorities
Campbell, Molloy and MacKenzie (1995) JLR 136 CofA.
A.G. -v- Dicker, Driscoll and Wakeham (28th October, 1998) Jersey Unreported.