Jersey Unreported Judgments

2000/132

6 pages

                                                         COURT OF APPEAL.

 

13^th 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.

 

 

Harold John McMinn

-v-

H.M.'s Attorney General.

 

Application for leave to appeal against a total sentence of 5 years' imprisonment passed on 2^nd March, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded in custody by the Inferior Number, after entering, on 17^th December, 1999, a not guilty plea to count 1 of the first indictment set out below and guilty pleas to counts 2 and 3 thereof, and a not guilty plea to the count set out in the second indictment; and following a change of plea to guilty on 27^th January, 2000, to count 1 of the first indictment and on 2^nd March, 2000, to the count set out in the second indictment:

 

First indictment.

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 1: MDMA: on which count a sentence of 5 years' imprisonment was passed;

2 counts of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1961:

                  Count 2: MDMA: on which count it was ordered that the charge remain on file;

                  Count 3: cannabis resin: on which count a sentence of 1 month's imprisonment, concurrent, was passed;

 

Second indictment.

1 count of  receiving/hiding/withholding stolen property: on which count a sentence of 6 months' imprisonment, concurrent with the                                       sentences passed on the first indictment, was passed.

 

Leave to appeal was refused by the Deputy Bailiff on 20^th March, 2000, and on 23^rd March, 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 D.C .Sowden for the Appellant;

                                              J.C. Gollop, 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 5 years' imprisonment passed on 2^nd March, 2000, by the Superior Number of the Royal Court, to which the Appellant was remanded in custody by the Inferior Number, after entering, on 17^th December, 1999, a not guilty plea to the count 1 of the first indictment and guilty pleas to counts 2 and 3 thereof, and a not guilty plea to the count set out in the second indictment, and, following a change of plea to guilty on 27^th January, 2000, to count 1 of the first indictment, and on 2^nd March, 2000, to the count set out in the second indictment.

 

2.            The first indictment charged the Appellant with:

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 1:     93 complete and 3 partially complete tablets of MDMA [commonly known as Ecstasy] on which count a sentence of 5 years' imprisonment was passed.

 

It further charged the Appellant with 2 counts of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1961:

 

Count 2:     a quantity of MDMA on which count it was ordered that the charge remain on file.

Count 3:     a quantity of cannabis resin on which count a sentence of 1 month's imprisonment, concurrent, was passed.

 

3.            The second indictment charged the Appellant with:

 

1 count of receiving/hiding/withholding stolen property [being a gold charm bracelet] on which count a sentence of 6 months' imprisonment, concurrent with the sentences passed on the first indictment was passed.

 

4.            Leave to appeal was refused by the Deputy Bailiff on 20^th March, 2000, and on 23^rd March, 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.

 

5.            The Appellant submits as follows:

 

"The Appellant does not take issue with the sentence in relation to the possession of cannabis resin which was one month's imprisonment concurrent but appeals against the sentences in relation to the remaining two counts.

 

In relation to the count of possession of ecstasy with intent to supply, as the Appellant was found in possession of 96 tablets, the Appellant does not take issue with the Royal Court taking a starting point of seven years but he submits that a greater deduction should have been given to take account of the substantial mitigation as follows: 

 

a)      The Appellant had no relevant previous convictions.

 

b)      The Appellant entered a guilty plea - although it must be conceded that the such plea was entered late, namely two days before the commencement date of the trial.

 

c)      The Appellant will say that there was no evidence going to show an intention to supply or actual supply and the evidence was that the drugs were possessed purely for the Appellant's personal use.

 

d)      The Appellant will say that insufficient regard was paid to his deprived background and physical and psychological problems.

 

e)      The Royal Court should have been made aware that the Appellant was prepared to provide the name of his supplier in open Court.

 

In relation to the count of receiving/hiding/withholding stolen property, the Appellant contends that the sentence of six months' imprisonment although concurrent (which is accepted as correct by the Appellant) was excessive in view of the fact that the property was recovered, the value of the property and the background circumstances."

 

6.            As to the property offence it seems to us that the issue as to whether viewed in isolation a sentence of 6 months' imprisonment for the offence was too high is wholly academic.  The sentence was concurrent with the other sentences.  It was agreed at the Bar that any reduction would in no way benefit the Appellant.  We need say no more about it.

 

7.            As to the drugs offences the Appellant pleaded guilty.  He must therefore be held to have admitted an intent to supply and not merely admitted to possession.

 

8.            Furthermore, the Crown's conclusion submitted to the Royal Court was that the Appellant "had been found in possession of a commercial quantity of a Class A controlled drug and this with intent to supply to others".  The written submission of the Appellant's counsel below said that the Appellant "fully accepts the facts as set out by the Crown and expects to be sentenced on those facts".

 

9.            The Appellant told us through his present counsel (who was not counsel who appeared below) that he had pleaded guilty only on advice that this would lead to a discount greater than he in fact received.  Assuming that his version of events be accepted, this was a risk that he took on advice which seems to us reasonable.

 

10.        This then was a case of commercial trafficking in a Class A drug.  In Campbell, Molloy & MacKenzie (1995) JLR 136 CofA the relevant guidelines were set out and I quote from p.145:

 

"... 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.  We have employed the term "trafficking" deliberately.  In the past, some distinctions may have been drawn between offences involving the importation of Class A drugs and offences involving their supply or their possession with intent to supply.  In our judgment, there is no justification for any such distinction.  The guidelines which we have set out above supply to any offence involving the trafficking of Class A drugs on a commercial basis."

 

11.        In that case it is noted that the other Appellant, Mr. Molloy, received a 5½ year sentence for a guilty plea of being in possession of 665 Ecstasy tablets with intent to supply.  Seven years, therefore, seems to us as it seemed to the Court below to be the appropriate starting point, nor indeed, I repeat, was this starting point in issue in the Appellant's submissions.

 

12.        In this case the Appellant pleaded guilty.  In ordinary circumstances a discount of one-third is made for such a plea.  In the absence of any other factors, this would produce in the present case a sentence of 4 years 8 months.  It is therefore necessary to take a view as to the value of the plea.  The Appellant's plea was entered only two days before the trial.  On the one hand, by this time, the case was fully prepared.  On the other hand, a two to three day trial of uncertain outcome was avoided.  Crown counsel described the case against the Appellant as "strong, but not cast iron".  The evidence available which tended to incriminate included: the amount of Ecstasy, said to have a street value estimated at between £900 and £1,400, excessive for merely personal use; the fact that the Appellant was in financial difficulty; and inconsistencies in explanations given by him for the presence of the drug in his flat.  However, it should be noted that the Appellant had made (before his plea) no admission, and contended that the amount of Ecstasy was appropriate for an habitual user such as himself.  Furthermore, the Crown needed to prove a mental state, and not only a physical act.

 

13.        The Royal Court gave little credit for the plea.  We consider that this was a material under-valuation and would for our part have given a discount of a quarter.  We note, however, that this would not by itself take the sentence down below that actually imposed; indeed it would result in a sentence of 5 years 3 months.

 

14.        What, then, is the weight to be attached to the other factors relied on by the Appellant?

 

15.        It was said that he was substantially of previous good character, certainly he had no previous involvement in drugs and no previous custodial sentence.  We were told from the Bar that the Jurats were advised by the Bailiff to ignore that record, i.e. not to find that it constituted an aggravating factor.  We consider that, in principle, it was a mitigating factor, but not one of any considerable weight - the record of the Appellant, although not significantly tarnished, was not entirely spotless.

 

16.        It was also said that the Appellant suffered from a deprived background and had various actual and perceived physical and psychological problems.  We read with care the reports of Dr Hughes, Dr Sharkey, Mr Saunders and Mr Berry.  We refrain, in the interests of the Appellant's privacy, from expanding upon the detail of those reports, but are not insensitive to the picture they paint.  It may be noted, however, that in material part they were designed to explain why it was credible that the Appellant was a user, not a supplier of drugs, and it could be cogently contended that they better mitigate possession rather than intention to supply.  Be that as it may, the Royal Court appear to have accepted the Crown's conclusion that they be given "full weight".

 

17.        It was said finally that the Appellant was prepared to name his supplier in open court.  He did not in fact do so; his explanation is that he was advised by his then counsel that it would be of no assistance.  That advice (if given - and we shall assume, without finding, that it was) seems to us to have been sensible.  It appears that the supplier was dead; the information would have been unlikely to have been of any use whatsoever to the police - a cul-de-sac rather than a pathway to further inquiry.  While in principle co-operation with the police in this area in particular must always attract credit in terms of sentence, the degree to which it does so must depend in large measure on the utility of that co-operation.  In this case, no co-operation was in fact shown; and the co-operation hypothetically volunteered would have been of no true utility.

 

18.        We have considered whether the sentence, which has not been attacked in principle, was in all those circumstances "manifestly excessive".  After careful consideration of all the arguments ably advanced by Ms Sowden, we do not find that it was.  The only mitigating factor (the Appellant's previous record) which the Royal Court may have weighted too lightly was not substantial.  The application for leave to appeal is accordingly dismissed; the proviso in Article 35(4)(b) of the Court of Appeal (Jersey) Law, 1961 is applied in full; no part of the sentence served to date is to be disregarded.

Authorities

 

 

A.G. -v- Such (9^th June, 1999) Jersey Unreported.

 

A.G. -v- Bray (27^th January, 2000) Jersey Unreported.

 

A.G. -v- Edingborough (20^th January, 2000) Jersey Unreported.

 

A.G. -v- Kenward (6^th March, 2000) Jersey Unreported.

 

A.G. -v- Terry (4^th February, 2000) Jersey Unreported.

 

A.G. -v- Chevalier (22^nd January, 1999) Jersey Unreported.

 

Whelan: Aspects of Sentencing in the Superior Courts of Jersey:

              pp.7-8; 46-47; 75-78.

 

Campbell, Molloy and MacKenzie -v- A.G. (1995) JLR 136 CofA.