2000/137
4 pages
COURT OF APPEAL
14th July, 2000
Before: The Hon. M.J. Beloff, Q.C., President,
de V. G. Carey, Esq., The Bailiff of Guernsey; and
C.S.C.S. Clarke, Esq., Q.C.
Michael Thomas KENWARD
-v-
The Attorney General
Application for leave to appeal against a sentence of 6 years' imprisonment passed on 6th March, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 2nd December, 1999, following a guilty plea 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), 1972:
count 1: heroin.
Leave to appeal was refused by the Deputy Bailiff on 29th March, 2000; and on 3rd April, 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 C.R.G. Deacon for the Appellant;
Mrs. S. Sharpe, Crown Advocate.
JUDGMENT
CAREY, J.A:
1. This is the judgment of the Court in the application for leave to appeal by Michael Thomas Kenward, who, on the 6th March, 2000, appeared for sentence before the Superior Number of the Royal Court, having pleaded guilty before the Inferior Number on the 29th October, 1999, to one count of being knowingly concerned in the fraudulent evasion of the importation of heroin, contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972.
2. The Court imposed a sentence of six years for this offence and on the 29th March, 2000, leave to appeal was refused by the Deputy Bailiff. The Applicant renews that application before this Court.
3. The circumstances of the offence follow a familiar pattern. The drugs detector dog met the evening flight from Heathrow and showed a strong interest in seat 17A on the aircraft. The Applicant, who had been stopped by Customs Officers, was asked to confirm that he sat in seat 17A. He said he had nothing to declare and could not explain the interest of the dog. He was searched and was found to be carrying heroin strapped to his genitals. He also drew the attention of Customs to other heroin which was in the hollowed out heels of the shoes he was wearing and a second pair of shoes in his luggage. The total amount of heroin found was 307.06 grams of a purity of between 75% and 81% by weight. We will return later to the significance of this. The Applicant was co-operative with the interviewing officers. He will be sixty years of age in August. He has been living in Thailand. He had previously been divorced from his wife in England and has a family of grown up children there. He had exhausted his savings. We are told that he has a common law wife in Thailand. She has two children under ten whom the Applicant has adopted. He told the Customs that he had been approached by a man in Thailand who had befriended him. This man had paid his flight to London to visit his pregnant daughter and in order to pay off this debt the Applicant had agreed to travel to Jersey carrying the heroin in the manner already described. He said he did not know the drug was heroin but he knew that it was something illegal because of the way in which he was asked to hide it.
4. The starting point for the Royal Court was 14 years. Miss Deacon says this is too high and contends for 13 years in lieu. This was a large consignment of heroin, a particularly addictive Class A drug. The street value was said to be over £92,000 without any allowance for dilution. We have noted what was said by this Court about anticipating dilution in assessing street values in Campbell, Molloy and MacKenzie -v- A.G. (1995) JLR 136 CofA at 149, and also its comment on weight and street value in the second half of page 146 of the same report. We would not disagree with anything the Court then said, but R. -v- Aranguran [1994] 99 Cr.App.R. 347 appears now to be settled authority that English Courts, when dealing with substances like heroin and amphetamine, should follow guidelines which relate to the weight of the pure drug involved in the consignment rather than to its street value. For the purposes of this case we need only draw attention to the fact that this consignment contained heroin of the highest purity found so far in Jersey. Therefore it may be necessary for the Court, as part of its sentencing exercise, to start to take into account issues of purity. If this is done in this case (as we consider it should) the starting point of 14 years does not look unreasonable.
5. The Royal Court proceeded to make a number of deductions. Firstly there was a deduction of two years for the guilty plea. Unlike Bruton -v- A.G. (14th July, 2000) Jersey Unreported CofA, upon which we have also delivered judgment today, this was, in our view a case where there was no realistic chance of acquittal as the drugs were strapped to the Applicant's body. We accept that the Applicant assisted the Customs Officers by pointing out other drugs that he was carrying. We are told they would be found in any event, although we accept that the Applicant might not have appreciated this.
6. A further two years was allowed to take into account the Applicant's age, co-operation and previous good character.
7. Lastly the Applicant was prepared openly to tell the Court that he had named his supplier. For this he received an allowance of four years.
8. Breaking the allowances down in this way does help this Court to understand the reasoning of the Court below, but it does give ammunition to Counsel for Applicants to argue that a particular part of the allowance is not sufficiently generous and also to try and draw out inconsistencies with other decisions.
9. At this juncture we would like to make an observation about the utility of the reference by Counsel in this area to other decided cases. Guideline cases of an Appellate Court are always of assistance, that indeed is their purpose. But a guideline case such as Campbell itself constantly refers to the principle, manifestly correct, that guidelines have always to be adapted to the facts of any particular case. It is therefore of limited utility to refer to decisions, particularly those of Courts sitting at first instance, which are (or should) be applying those guidelines to the cases before them. Not only do such cases turn substantially on their own facts; the facts themselves available and taken into account by the Court may not always appear on the face of the judgments; and a read across from one set of facts to another is often a vain exercise. Moreover, in the Royal Court of Jersey (and Guernsey), unlike Courts in England and Wales, the Crown has no right to appeal against lenient sentences. We therefore express the hope that for the better conduct of court business, in future Counsel will be sparing and selective in what they cite, and make use of earlier cases (other than guideline cases) only where they can be said to illuminate, preferably expressly, a proper general approach to a common form factual situation.
10. Rather than a compartmentalised approach, we prefer the comprehensive approach found in Archbold (2000 Ed'n) at the end of paragraph 5-160 where it refers to offenders who have assisted the police. "For such assistance the discount is greater than the normal discount for pleading guilty: R. -v- Wood [1997] 1 Cr.App.R.(S.) 347, CA, but the sentencer should determine the final sentence by calculating a single discount taking into account all the relevant factors, including the plea of guilty and the assistance given to the authorities as in R. -v- Sehitoglu and Ozakan [1998] 1 Cr.App.R.(S) 89, CA."
11. The Applicant is a sad individual and clearly the Bailiff and Jurats had an invidious task in deciding the balance between the mercy that justice required be afforded to him and the need to discourage like minded older members of society without criminal records taking up this kind of assignment. The discount to the starting sentence of 14 years was approximately 57% and by any reckoning this was generous and in our view displayed the appropriate degree of mercy.
12. Accordingly, despite all the submissions that have been so well put forward on his behalf by his Advocate, we refuse leave to appeal.
Authorities
Asher Sivan & Ors (1988) 10 Cr.App.R.(S) 282.
Archbold (200 Ed'n): paras 5-160 to 5-163.
AG -v- Le Tarouilly (2nd December, 1996) Jersey Unreported.
AG -v- Dowse & Heys (20th January, 1997) Jersey Unreported.
AG -v- Lunt (22nd June, 1998) Jersey Unreported.
AG -v- Schorah & Wright (22nd February, 1999) Jersey Unreported.
Wright -v- AG (12th July, 1999) Jersey Unreported CofA.
AG -v- Shoesmith (19th March, 1999) Jersey Unreported.
AG -v- Chadwick (30th October, 1995) Jersey Unreported.
AG -v- Jones & Raynor (6th June, 1996) Jersey Unreported.
Bray -v- AG (27th January, 2000) Jersey Unreported CofA.
Campbell, Molloy and MacKenzie -v- AG (1995) JLR 136 CofA.
Bruton -v- AG (14th July, 2000) Jersey Unreported CofA.
R -v- Aranguran [1994] 99 Cr.App.R. 347.
R -v- Wood [1997] 1 Cr.App.R.(S) 347 CA.
R -v- Sehitoglu & Ozakan [1998] 1 Cr.App.R.(S) 89 CA.