Jersey Unreported Judgments

2000/9

4 pages

ROYAL COURT (Superior Number)

(exercising the appellate jurisdiction conferred upon it by Article 22 of the

Court of Appeal (Jersey) Law, 1961).

 

21^st January, 2000

 

Before Sir Philip Bailhache, Bailiff and Jurats Le Ruez, de Veulle,

Quérée, Tibbo, Le Breton, and Allo.

 

 

Jonathan James RICE

-v-

The Attorney General

 

 

Application for leave to appeal against a sentence of 3 ¼ years' imprisonment, passed by the Inferior Number of the Royal Court on 2^nd June, 1999, following a 'Newton' hearing on a guilty plea to:

 

1 count of    being knowingly concerned in the fraudulent evasion on the prohibition on the importation of a controlled drug (amphetamine sulphate), contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972, on which count a sentence of 3 ¼ years' imprisonment was passed..

 

Leave to appeal was refused by the Bailiff on 23^rd June, 1999, and on 28^th June, 1999, 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.J. Petit for the Appellant;

P. Matthews, Esq., Crown Advocate.

 

 

JUDGMENT

 

THE BAILIFF:  I should preface these remarks by saying that because, as a Single Judge I refused the application for leave to appeal, I took no part in the discussion in Chambers on the merits of the appeal.  This is an application for leave to appeal against a sentence of 3¼ years' imprisonment imposed for an offence of importation of amphetamine sulphate.

 

The facts of the offence were summarised by the Deputy Bailiff in the Court below in the following terms:

 

"During the evening of Sunday, 20^th December, 1998, the accused was stopped by Customs Officers as he disembarked from the Poole car ferry.  His nervousness betrayed him.  While he was being searched within the customs search area, he handed over a bag concealed in his underpants.  The bag contained what clearly appeared to be ecstasy tablets.  They had a musical notation embossed on them and were called 'Melody' by Rice.  He said that he had 1,000 tablets.

 

Rice was interviewed.  He had £1,260 in his wallet.  He claimed it was his savings.  He had been released after serving three months of a prison sentence of six months in the United Kingdom for six separate counts of smuggling tobacco and freely admitted that the drug deal was planned initially whilst he was in prison.

 

After a consultation with Advocate Journeaux Rice gave further limited information.  After his release from prison he had travelled to Devon then to Newcastle to purchase these drugs.  He had been given a mobile number to telephone.  He says that he paid £2,500 of his own savings for those drugs, but of course he gave no more information and he had been unemployed for eighteen months.  Before that he had been a builder.

 

He was given a Jersey number to telephone by the dealer in Newcastle.  He states that he has lost that number.  He was, he says, to have received £3,000 six weeks after delivery of the drugs.  He was to deliver the drugs during the evening to a man in the 'Oxford' public house.  He did not know the man.  He had a mobile telephone on him when arrested.  It was given to him, he says, by his wife so that he could keep in contact with her.  He had actually missed the boat on the Saturday but he had telephoned his contact in Jersey on the number which he said he had lost."

 

Counsel for the applicant submits that the sentence of 3¼ years was manifestly excessive.  Counsel advanced three principal arguments in support of that submission.  The first argument related to the value of the drugs.  The value of the drugs imported by the applicant was the subject of a 'Newton' hearing in the Court below.  In round terms, the defence expert said that the value of the drugs was between £7,000 and £10,000.  The prosecution expert said that the value was approximately £20,000.  The Inferior Number preferred the evidence of the prosecution expert and, despite the submissions of counsel for the applicant, we see no reason to disturb that finding.

 

Secondly, counsel submitted that even on the basis of a value of £20,000 the strict or linear application of the mathematical guidelines set out in the guideline case of Campbell, Molloy & MacKenzie -v- AG (1995) JLR 136 CofA ought to have led the Inferior Number to apply a starting point of 3 years' imprisonment rather than the 4 years adopted by the Court.

 

We think that this is a misreading of the Campbell judgment.  Firstly, the guidelines are exactly that.  They are guidelines and they are not rules of law.  Secondly and more importantly what the Court said in the case of Campbell was this:

 

"The proper approach is that the sentencing court should adopt a starting point which is appropriate to the gravity of the offence.  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".

 

The amount and value of the drugs is clearly an important factor but it is the involvement of the accused in drug trafficking which is crucial.

 

We cannot accept the submission of counsel for the applicant that the applicant in this case was a mere courier.  The applicant arranged the importation with his contact in the English prison and the supplier in Newcastle.  He collected and paid for the drugs and he made his own arrangements for travelling to Jersey with the drugs in his possession.

 

The applicant was in a sense a principal and in our judgment the Inferior Number was perfectly entitled and indeed correct to take a starting point of 4 years' imprisonment.

 

Thirdly, counsel submitted that the deduction of 9 months applied by the Inferior Number for the guilty plea and other mitigating factors was insufficient.  The applicant was in this case caught in flagrante delicto.  It is difficult to see how he could have done other than plead guilty to the offence with which he was charged.  He did, however, through his counsel persuade the Inferior Number that he was remorseful for his involvement in the offence and for that reason the Inferior Number varied the conclusions of the Crown and applied a greater deduction than was moved for by the Crown Advocate.  In our judgment the deduction made for the mitigating factors was correct and we see no reason to disturb that finding either.  For these reasons the application is accordingly dismissed and we refuse the application for leave to appeal.

Authorities

 

 

Campbell, Molloy & MacKenzie -v- AG (1995) JLR 136 CofA.

 

R -v- Price (2^nd April, 1993) "The Times" CA.

 

R -v- Wijs [1998] Cr.L.R. 587.