2001/149
COURT OF APPEAL
19th July 2001
Before: |
R.C. Southwell Esq., Q.C., President; The Hon. M.J. Beloff, Q.C., and; C.S.C.S. Clarke, Esq., Q.C. |
Craig Lee Forrester
-v-
The Attorney General
Application for leave to appeal against a total sentence of 6 years' imprisonment passed on 22nd March, 2001, by the Superior Number of the Royal Court, to which the Defendant was remanded by the Inferior Number on 22nd February, 2001, after entering guilty pleas to the following counts:
First Indictment (by himself)
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: ecstasy |
1 count of: |
Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 2: cannabis |
Third Indictment (with the second and third Defendants)
2 counts of: |
Assault (counts 1, 2). |
On which counts the following sentences were passed:
First Indictment
Count 1: |
5 years' imprisonment; |
Count 2: |
6 months' imprisonment, concurrent. |
Third Indictment
Count 1: |
12 months' imprisonment; |
Count 2: |
12 months' imprisonment, concurrent, but consecutive to sentences passed on First Indictment |
TOTAL: 6 years' imprisonment.
Leave to appeal was refused by the Bailiff on 25th April, 2001; and on 3rd May, 2001, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew his application to the plenary Court.
[A third co-accused, William Sebastian Sefton-Ullmer, has not appealed; and co-appellant, Lee Michael Sumner abandoned his application for leave to appeal on 22nd June, 2001.]
Advocate S.E. Fitz, Crown Advocate.
Advocate Mrs. S.A. Pearmain for the accused.
JUDGMENT
CLARKE, J.A:
1. On 22nd March 2001 the Superior Number of the Royal Court sentenced the defendant, Craig Lee Forrester, to a total of 6 years' imprisonment. On one count of possessing 56 ecstasy tablets with intent to supply he was sentenced to five years' imprisonment; on a second count of possessing cannabis he was sentenced to 6 months imprisonment to run concurrently with the first count. On two further counts of assault he was sentenced to 12 months imprisonment on each count, such sentences to run concurrently with each other but consecutively to the two counts of possession of a controlled drug.
2. The defendant now seeks leave to appeal only against the five year sentence in relation to the 56 ecstasy tablets, such leave having previously been refused by the Bailiff on 25th April 2001.
3. The facts in relation to the ecstasy tablets were that on 29th October 2000, 6 days after he had become 27 years old, the defendant was being watched by police officers, who were monitoring the closed circuit television at the Chambers Bar. They saw him pass something to a woman. Nothing relevant was found on her at a later search. As a result of what they saw the police officers suspected the defendant of dealing in drugs. So they attempted to detain and search him. The defendant strongly resisted their doing so. During the ensuing struggle the defendant took a bag containing the tablets out of his pocket and held it in his hand. The police eventually forced his hand open to retrieve the drugs. The bag contained 27 ecstasy tablets. Approximately 7 tablets, which the defendant had discarded, were retrieved in broken form from the place where he had dropped them. A further 22 tablets were found on the defendant when he was searched at the police station. The street value of the drugs was between £672 and £840.
4. When he was being detained at the police station the Defendant gave a false surname and address, although he eventually told the police that the address was false. In the end he was identified with the assistance of the Police National Computer. When he was being questioned the Defendant told the police that, when he was at the bar, he saw something going down and felt a hand go into his pocket. It was - he said - after he removed the parcel from his pocket that he was approached by the police officers. He suggested that the person who had planted the drugs on him was a man with whom he had had a fight a couple of weeks before.
5. On 31st October, 2000 the defendant entered reserved pleas at the Magistrate's Court. On 28th December, 2000 he entered guilty pleas.
6. In relation to the count for possession of ecstasy tablets with intent to supply the Royal Court accepted the conclusion of the Crown that the starting point should be 7 years and the discount for available mitigation should be 2 years.
7. Advocate Pearmain on behalf of the Appellant does not suggest that the starting point, which is in accordance with the guideline decision of this Court in Campbell, Molloy and MacKenzie-v-AG [1995] JLR 136 CofA was wrong. Her submission is that the sentence of 5 years is plainly too great because it does not take sufficient account of the defendant's guilty plea and the fact that, although he has an appalling record, it contains only 3 convictions for drug offences. Two of those offences, which occurred in 1999 attracted modest fines of £60 in each case. The third, which occurred in 1990, attracted no separate penalty.
8. Before she developed these submissions Miss Pearmain directed our attention to the fact that, in the headnote to the record of the judgement of the Royal Court contained in the papers before us, reference is made to the second of three indictments with which the Court dealt at the same time. The defendant is named only in the first indictment, which relates to the ecstasy tablets and the cannabis, and the third indictment, which relates to an incident that occurred in the prison dining room when prison officers were assaulted. Two other defendants, Sumner and Sefton-Ullmer, were also charged with assault in the third indictment. The second indictment relates to the importation by these two other defendants of heroin and cocaine, with which the defendant Forrester was in no way concerned. But the headnote, when dealing with the second indictment, refers - erroneously - to the importers of heroin and cocaine as being Sumner and Forrester.
9. In the light of this Forrester is concerned that he may have been sentenced upon an erroneous assumption that he was involved in the importation of heroin and cocaine by Sumner and Sefton-Ullmer.
10. This concern is not well founded. In delivering the judgement of the Royal Court the Deputy Bailiff was at pains to make clear - and I quote - "that the only connection between Forrester and the other two defendants and the reason which has led to them all being sentenced together is that all three face a third indictment which arises out of a melee which took place while the defendants were on remand at La Moye Prison". In his report to this court the Deputy Bailiff has emphasised that the Royal Court did not see all three defendants as a gang. He added that it was quite clear that Forrester had no connection with the other two defendants save in relation to the assault.
11. The erroneous reference in the headnote to Forrester in relation to the second indictment cannot in any way have influenced the Royal Court since that headnote was only prepared some time after the judgement had been delivered.
12. As to the significance of the guilty plea, Advocate Pearmain accepted that there may have been no possible defence to a charge of possession, since the defendant was caught red-handed. But she pointed out that the defendant was a heavy user of ecstasy and submitted that, in those circumstances, possession by him of 56 tablets at a date close to his birthday in a bar did not prove possession with intent to supply. Accordingly, when he pleaded to that offence, the defendant was in reality the author of his own indictment either as to all or at least part of the 56 tablets.
13. We do not agree. The characterisation of a defendant as the author of his own indictment, and, thus, entitled to an unusually generous discount for a plea of guilty, is only apposite when the defendant provides the police with evidence without which they could not charge the defendant with the offence in question or could not do so with any realistic prospect of success. That was not the case here. The fact that the defendant was on licensed premises with nearly six dozen tablets in his pockets provided ample material from which to infer - correctly as the plea shows - that the defendant had these tablets in his possession with an intent to supply them in whole or in part to others. The defendant is entitled to some discount for his plea but he is not, in our judgement, to be treated as someone who provided the police with the only evidence upon which to present the charge.
14. In considering the size of the discount to be applied it is material to note that the defendant provided no assistance to the police in discovering what drugs were in his possession. On the contrary he struggled vigorously with the officers. He then tried to escape the consequences of being caught with ecstasy on his person by putting forward and maintaining an entirely bogus story that the tablets had been planted on him. He provided no assistance to the police - not even his true name and address. His plea of guilty, made on 28th December 2000 was a belated one and almost inevitable.
15. In those circumstances he would have been fortunate to be given a discount of 1/3rd even if he had no previous convictions. In fact he has a sizeable number of previous convictions for dishonesty in the form of burglary, theft and taking and driving away vehicles, together with convictions for possession of offensive weapons, offences of violence and public order offences. This record deprives him of any discount that might otherwise have been available on account of good character. In addition he was at the time of the commission of the offence, subject to probation order imposed by the Sutton Coldfield Magistrates for 1 year on 18th April 2000. The fact that, of his previous convictions, only 3 are drugs related, and that in only two cases was there any punishment, and that a modest one, does not detract from the fact that, taken as a whole, his record is appalling.
16. In those circumstances there was nothing wrong with the decision of the Royal Court to apply a discount of 2 years to the starting point sentence of 7 years. If anything that was favourable to the defendant. Accordingly we refuse leave to appeal.
17. The Court orders that no part of the time spent by the defendant in custody pending appeal shall be disallowed in computing the time served in prison.
Authorities
AG-v-Forrester, Sumner and Sefton-Ullmer (22nd March 2001) Jersey Unreported; [2001/67]
Campbell and Ors-v-AG [1995] JLR 136 CofA.