Jersey Unreported Judgments

2000/16

4 pages

 

COURT OF APPEAL.

 

27^th  January, 2000.

 

Before: Sir David Calcutt, Q.C., (President);

R.C. Southwell, Esq., Q.C., and

M.G. Clarke, Esq., Q.C.

 

 

Alan John Bray

-v-

H.M.'s Attorney General.

 

Appeal against a total sentence of 4 years' imprisonment passed on 8th November, 1999, by the Superior Number of the Royal Court, to which the appellant was remanded in custody by the Inferior Number on 1^st October, 1999, following a guilty plea to:

 

1 count of:      being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972:

                    Count 1: MDMA, on which count a sentence of 4 years' imprisonment was passed;

1 count of:      possession of a controlled drug with intent to supply it to another, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

Count 2: MDMA, on which count a sentence of 4 years' imprisonment (concurrent) was passed.

 

Leave to appeal was granted by the Bailiff on 22^nd November, 1999.

 

Advocate C.M .Fogarty for the Appellant;

Mrs S. Sharpe, Crown Advocate.

 

 

JUDGMENT

 

THE PRESIDENT:  On 1 October 1999 Alan John Bray ("the appellant") pleaded guilty before the Royal Court to each of two counts in an indictment, namely, being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972, and possession of a controlled drug with intent to supply it to another, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978. 

 

On 8 November 1999 the appellant was sentenced to 4 years' imprisonment on each count, the sentences to run concurrently.

 

On 22 November 1999 the Bailiff granted leave to appeal against the sentences imposed. 

 

The circumstances can be set out briefly.  On 18 June 1998 the appellant arrived in Jersey off the Weymouth Ferry.  He was stopped at Customs, and asserted that he had nothing to declare.  In the course of a personal search, one of the customs officers spotted a plastic bag protruding from the appellant's jeans.  The appellant said that the bag contained Viagra tablets.  The officer, however, suspected that the tablets were Ecstasy.  (Viagra tablets are obtainable in the United Kingdom and in Jersey but only on a medical prescription; but they are not controlled drugs under either Class B or Class A.  Ecstasy, however, is a Class A controlled drug.)  The appellant was cautioned and arrested.  2,952 Ecstasy tablets were found.  The appellant asserted that he was told that the tablets were Viagra, and that they would be sold on the black market in Jersey for £3,500, and that he would be paid £300 for his part.  As Ecstasy tablets, they would have commanded a street value of about £44,000 - £59,000.

 

The appellant was co-operative with the investigating customs officers.  He was willing to, and did, name his supplier, and was willing for this to be disclosed openly in Court.  The appellant had previous criminal convictions in England, but none of them was drug-related.

 

In the Royal Court the starting point for sentencing was taken as 9 years (and this has not been disputed).  The mitigating factors urged upon the Royal Court were, firstly, that the appellant had pleaded guilty; secondly, that he had not only named his supplier, but that he  had agreed to this being done openly and in court; and, thirdly, that the appellant was mistaken as to the true nature of the drugs which he had been carrying.  It was accepted by the Crown that the plea of guilty and the naming of the supplier were matters properly capable of providing mitigation. The Court retired for about one hour to consider the appropriate sentence. 

 

On their return into Court, the Deputy Bailiff delivered a brief judgment.  In the course of that judgment the Deputy Bailiff referred to Campbell & Others v. A.G.  (1995)  JLR 136 CofA,  observing that the Court of Appeal in that case had made it very clear that no mitigation was available to a courier having an erroneous belief that he was transporting a Class B drug when he was, in fact, transporting a Class A drug.  The Deputy Bailiff said "In this case, Bray says that he thought he was carrying Viagra tablets.  That may be an implausible alibi in any event as each tablet displayed had a 'Mitsubishi' logo on one side and a score mark on the other; but Bray says that he had no knowledge of Viagra tablets or of Ecstasy tablets."  The Deputy Bailiff said that the Court had considered the alleged erroneous belief in some detail and said "We remain unconvinced that erroneous belief can assist in this particular case.  Bray is a mature man who has not lived in a cosseted world.  He has, after all, been living for most of his life in the city of Leeds."

 

As I have already indicated, nine years was taken as the starting point and this has not been disputed.  So far as mitigation is concerned it was accepted, and again not disputed, that the appellant should receive a reduction for his guilty plea, and the reduction of 3 years has not been disputed.  As already indicated so far as naming his supplier is concerned, the Court took the view that he should receive a substantial discount, but the Court took the view that a further reduction of 2 years was sufficient.  The Court said, "We will, however, say this: anyone who names his supplier - where this is confirmed to us - will receive a substantial discount.  We feel in this case 2 years is sufficient."

 

On appeal to the Court of Appeal, the appellant contended in his grounds of appeal that the Royal Court had given no additional discount, not merely for naming his supplier, but being willing to do so publicly in Court.  Secondly, it was contended that if the appellant's assertion, that he had an erroneous belief in the nature of the drugs, was not accepted by the court, then an issue of fact arose which should have been resolved by holding a Newton hearing.  Thirdly, it was contended that because sounds of laughter had been heard coming from the retiring room, the Court had not taken its duties sufficiently seriously.

 

At the hearing of the appeal. Advocate Fogarty, on behalf of the appellant, took these three points and expanded her submissions in respect of each of them.

 

This Court accepts that the 3-year reduction for a guilty plea, in the circumstances of this case, was appropriate.

 

This Court also accepts that the appellant was entitled to a discount, not merely for naming his supplier, but also for causing the supplier to be named in court.  This Court takes the view that, in the circumstances of this case, a 3-year reduction (in addition to the 3-year reduction for the guilty plea) is appropriate. 

 

This Court also takes the view that any further reduction for the alleged erroneous belief would, in the circumstances of this case, be inappropriate.  Viagra is itself a drug, albeit not one which was in  "Class A" or "Class B", but was one which could only be obtained in the UK or in Jersey on a prescription.  The appellant knew that the tablets which he was carrying were to be sold on the black market and that it was intended that both he and his supplier should benefit financially.  Further, he had pleaded guilty to the charges brought against him.  In Campbell's case (supra) the Court of Appeal had said this: 

 

"In our judgment a courier who knowingly transports illegal drugs must be taken to accept the consequences of his action ...    The evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug.  There may be very exceptional circumstance in which a genuine belief that a different drug was being carried might be relevant to sentence.  But in general we endorse the Royal Court's view in Campbell that an erroneous belief as to the type of drug being carried is not a mitigating factor." 

 

In the view of this Court, there were no "exceptional circumstances".   In these circumstances a Newton Hearing would have been of no avail.

 

So far as the third matter is concerned, this Court takes the view there is no basis for any further reduction of the sentence.  This Court is not prepared to infer that such laughter as there may have been related to the Royal Court's consideration of sentence.  The retirement lasted for about an hour.  Thereafter the Deputy Bailiff gave a judgment in which he considered each of the matters raised.  There is no basis, in the view of this Court, for inferring that the Royal Court failed to take its duties sufficiently seriously. 

 

In the result, the appeal is allowed to the extent that, for the sentences of 4 years' imprisonment concurrent, there should now be substituted sentences of 3 years' imprisonment concurrent. 

 

Authorities

 

Campbell, Mackenzie, & Molloy -v- A.G. (1995) JLR136 CofA

 

Attorney General -v- Jones & Rayner (6^th June, 1998) Jersey Unreported.

 

Attorney General -v- Chadwick (30^th October, 1995) Jersey Unreported.