Jersey Unreported Judgments

2001/150

COURT OF APPEAL

 

 

19th July 2001

 

 

Christopher Timothy Harris

-v-

The Attorney General

 

Application for leave to appeal against a sentence of 3 ½ years imprisonment passed on 20th December, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 17th November, 2000, following a guilty plea to:

1 count of:

manslaughter

[The Appellant also pleaded guilty to:

2 counts of:

possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 1: cannabis, on which count a sentence of 3 months' imprisonment was passed. count 2: heroin, on which count a sentence of 9 months' imprisonment, concurrent, but consecutive to sentence passed on manslaughter count, was passed.

There is no appeal against the sentences passed on counts 1 and 2.]

Leave to appeal was refused by the Bailiff on 29th January, 2001; and on 12th February, 2001, 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 J.C. Gollop for the Appellant.

A.D. Robinson, Esq., Crown Advocate.

 

JUDGMENT

 

 

CLARKE, J.A:

1.        On 20th December 2000 the defendant Christopher Timothy Harris,  ("Harris"), was sentenced to a term of imprisonment of 3 ½ years in respect of the manslaughter of Simon Peter Gibbins ("Gibbins"), and, upon a separate indictment, to terms of imprisonment of 3 months for possession of cannabis and 9 months for possession of heroin, the latter two sentences being ordered to run concurrently to each other but consecutively to the sentence of 3 ½ years for manslaughter. Thus the total sentence was 4 years and 3 months. On 29th January 2001 Harris was refused leave to appeal and he now renews his application for leave before the full court.

2.        At about 10 p.m. on Monday August 14th 2000 Gibbins, who was 28 years old, came to Harris' flat, where Harris was with his girlfriend. Gibbins brought with him 2  "50" bags of heroin, that is to say 2 bags each of which cost £50 and contained approximately 1/10 gram of heroin. Once Harris' girlfriend was asleep, Gibbins and Harris started to smoke heroin. Gibbins began to smoke the contents of the first of his two bags and to drink alcohol.

3.        About 2 hours later Gibbins asked Harris to show him how to inject heroin into a vein. Harris then took about half of the contents of Gibbins' second bag and mixed it with citric acid and water. Using a cut up cigarette filter, he sucked the mixture into a syringe and injected the contents into a vein in Gibbins' arm. Both of them then continued to smoke heroin, Gibbins smoking the remainder of the first of his bags.

4.        At a later stage of the night, when Harris was preparing to inject himself, Gibbins asked him to put the balance of his second bag of heroin into a syringe for Gibbins to inject into himself. Harris asked Gibbins whether he was sure that he wanted to do that. When Gibbins said that he did, Harris supervised the preparation of the mixture by Gibbins, his sucking it up into the syringe and his injection of himself.  Shortly afterwards Gibbins fell asleep at the feet of Harris' girl friend. Harris stayed awake. At 0530 Gibbins was still alive. At that time Harris, who wanted to get into the bed, moved him because he was snoring.

5.        At about 1500 the next day the girlfriend awoke: she then went for a walk, being unable to rouse either Harris or Gibbins. Harris woke at about 1630. When he tried to rouse Gibbins he found that he was cold to the touch. He rang an ambulance using his mobile phone. When the ambulance arrived shortly thereafter Gibbins was found to be dead. The cause of his death was heroin poisoning, augmented by alcohol, the combination of the two being far more likely to cause death than the injection of heroin alone.

6.        On 16th August 2000 Harris was charged with administering a noxious substance so as to endanger life; he reserved his plea at the Magistrate's Court and was remanded in custody until 30th August when he applied for and was granted bail.

7.        On 2nd October, 2000 Harris was stopped by police officers in the street and searched; he was found to have in his possession a small lump of cannabis resin. He was detained overnight and pleaded guilty to that offence the next morning when he was again remanded on bail.

8.        3 days later, on 5th October 2000, Harris was stopped by a police officer when cycling in Mulcaster Street after a motorist had reported that a cyclist appeared to be drunk. Harris was taken to the police station where he was strip searched. That search revealed a number of needles and a large bag of white powder. In addition Harris had attempted to hide in his buttocks a plastic money bag containing brown powder in two pieces of cling film and a small pot also containing brown powder. The brown powder turned out to be heroin - just under a gram in all, which Harris said he had bought the night before for £450 for his own use. The white powder was Manatol, a form of inverted glucose, which is used to cut heroin.

9.        On 6th October 2000 Harris reserved his plea at the Magistrate's Court in respect of the possession of heroin. On 17th November he pleaded guilty to a charge of manslaughter, this charge being preferred in substitution for a charge of administering a noxious substance so as to endanger life; he also pleaded guilty to the two possession counts.

10.      This would appear to be the first case in Jersey in which a defendant has been charged with  manslaughter where death has arisen as a result of the use of illegal drugs. The Superior Number, in deciding on a sentence of 3 ½ years on the manslaughter count, were influenced by the judgement of the English Court of Appeal in R v Clarke & Purvis (1992) 13 CAR (S) 552. In that case Clarke had injected a man called Thomas with heroin when Thomas was having difficulty in injecting himself. Thomas was a regular user of heroin by way, on occasion, of injection. As a result of the injection of heroin he died. In Clarke the Court of Appeal reduced a sentence of five years, imposed following a plea of guilty, to one of 3 ½ years.

11.      In his judgement the Deputy Bailiff made clear that the Royal Court agreed with the approach of the English Court of Appeal in making clear that severe sentences would be passed in cases such as this in order to bring home to those who meddle with drugs that they do so at their peril, and that, if death results, however unexpectedly, a conviction for manslaughter may follow and with it severe punishment.

12.      Advocate Gollop on behalf of Harris submitted to us that the Superior Number failed to have due regard to the mitigation available to Harris in the form of firstly, his guilty plea, given, as the Royal Court expressly recognised, in circumstances where he could truly be said to have written his own indictment, secondly, his cooperation with the police and, thirdly, his genuine remorse.

13.      As this court has consistently stated, in order to decide what sentence to impose upon any defendant, the sentencing court must first determine the appropriate starting point sentence for the offence, and then reduce it in the light of all available mitigation. Unless that is done it is not possible to determine the extent to which the court has reduced the sentence that would otherwise have been imposed and whether that reduction was too little or too much.

14.      In the present case the Crown did not specify in its conclusions what starting point it contended for. Nor does the judgement of the Royal Court state what starting point it took. The course of submissions below focused, rather, on the extent to which the facts of the present case were or were not comparable to those in Clarke.

15.      We have invited and received submissions on the appropriate starting point in manslaughter cases of this kind. We first note that, in accordance with the guidelines laid down by this Court in Campbell, and the further development of those guidelines set out in our judgement of today in the cases of Rimmer, Lusk and Bade, the minimum sentence for trafficking in Class A drugs is seldom less than 7 years. In our judgement the Court would fail to attach proper significance to the fact that a human life, frequently a young human life, had been lost as a result of the defendant's unlawful action, if the starting point in cases such as this, was less, or even the same, as that which would ordinarily be imposed for the importation of a small quantity of heroin.

16.      We next consider what starting point may be said to be implicit in the case of Clarke. At first instance Turner J had, upon a plea of guilty, imposed a sentence of 5 years. That would suggest that, before mitigation, the sentence would be of the order of 7 years. The Court of Appeal reduced that sentence of 5 years to one of 3 ½  years, which would, in turn, imply a sentence before mitigation of the order of 5 years.

17.      Advocate Gollop helpfully drew to our attention to the subsequent English case reported as Attorney-General's Reference (No 5 of 1995) [1996] 1 Cr.App.R.(S.) 85.  In that case the offender pleaded guilty to one count of manslaughter in addition to other counts. He had obtained a supply of methadone in liquid form and had then supplied it to a man who died as a result of taking an overdose. For the manslaughter he was sentenced, upon a plea, to five years imprisonment. In the judgement of the Court, as reported, Lord  Taylor, LCJ, expressed the view that the sentence in respect of manslaughter ought to have been longer than it was, although in a subsequent passage he is, also,  recorded as saying that the manslaughter offence deserved "something of the order of five years' imprisonment". Lord Taylor was talking of a sentence imposed after a plea. So the starting point sentence that the court must have had in mind would be something of the order of at least seven years, if one takes the latter passage, and something of the order of nine years if one takes the former.

18.      In our judgement, in the light of the English authorities and the distinctive sentencing policy of this Island in relation to Class A drugs, the appropriate starting point for cases of this kind, that is to say charges of manslaughter arising from the supply or administration of illegal Class A drugs, is between 8-10 years. In determining whereabouts in that band any given case lies it will, of course be necessary to consider all the facts.

Significant factors will include

[1] the manner in which the defendant's actions  caused, or contributed to, the death of the victim and, in particular, whether death resulted from the defendant injecting the deceased or supervising the deceased's self- injection, or in some other mode;

[2] the extent to which the defendant was the instigator of  the fatal drug taking, or imposed any pressure on the victim to take part in drug taking or drug taking in a riskier form than that which the victim might otherwise have adopted.

[3] whether, if death resulted from drugs that were injected, the deceased had injected drugs before;

[4] the extent to which the defendant appreciated, or should have appreciated, the risk involved in his actions, having regard, amongst other things to his knowledge of the drug taking habits of the deceased and his tolerance of drugs.

[5] the extent to which the defendant took any steps that were open to him to try to save the life of the deceased

19.      In the present case Gibbins had never injected heroin before. He wanted Harris to inject him so that he could find out what it was like. In this respect the situation was different from that in Clarke, where the victim had injected himself with heroin on previous occasions. We cannot tell whether, if Harris had refused to inject him, Gibbins might have gone ahead and done so himself. But, in view of the fact that previously he had sought to persuade Harris to inject him, rather than do it himself, it is questionable whether, if refused by Harris, he would, in fact, have done so.  In the result Harris, who knew that injecting heroin was a lot more dangerous than smoking it, and who told the police that Gibbins had not touched heroin since Easter, effected the first, and supervised the second injection, with fatal consequences.

20.      Advocate Gollop submitted to us that the facts of the instant case were distinguishable from Clarke because Gibbins had brought his own heroin with him, whereas the victim in Clarke had persuaded the defendant to supply him with some of the defendant's heroin. We do not regard this as a point of great significance. The vice of Harris' actions lay in injecting the drug, wherever it came from. Advocate Gollop also relied on the fact that in Clarke the one injection given by the defendant appears to have been the sole source of the heroin poisoning which, aggravated by the alcohol that the victim had previously taken, caused his death. Here, he submitted, by contrast, the factors that contributed to Gibbins death included the heroin that Gibbins smoked before and after the first injection, the second injection, which Gibbins injected himself, and the alcohol that he took. Again, we do not think that this is a point of any great significance. Harris' action must be looked at in the round. He gave the first injection to a man who was already smoking heroin and drinking alcohol, as he knew, and then supervised the taking of the second. As a result the man - tragically - died.

21.      In those circumstances an appropriate starting point would, in our judgement, have been one of eight years. If that is so then,  as Advocate Gollop realistically accepts, the mitigation that was available to Harris could not reduce his sentence to below the 3 ½ years, which was imposed upon him on this count. We accept, as did the court below, that he was entitled to a generous discount for his plea of guilty and the degree of cooperation that he displayed by revealing the full extent of his involvement in Gibbins' death at an early stage and thus establishing that which might otherwise have been impossible to establish. He was, also, entitled to pray in aid his genuine remorse. But those matters  could not justify a reduction from the starting point of 4 ½ years. At the highest in his favour they might reduce the sentence to something of the order of 4 ½ years. Further Harris' record is very poor and there is nothing in it which affords ground for further mitigation.

22.      Advocate Gollop also submitted that the Royal Court was in error in adding the concurrent sentences for drug possession to the sentence for manslaughter and that the sentence overall offended the totality principle. That principle means, in essence, no more and no less than that a court must, before reaching a final decision, look at the total sentence that is produced by adding up the individual sentences that it is minded to impose on each count, in order to see whether the total is too high in the light of the circumstances of the offences and the offender.

There are two passages that appear in the 2nd edition of  Professor Thomas' Principles of Sentencing. At page 57 he writes:

"A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender ' a crushing sentence' not in keeping with his record and prospects".

At page 59  he writes:

"...but the essence of the principle appears to be that the aggregate sentence should not be longer than the upper limit of the normal bracket of sentences for the category of cases in which the most serious offence committed by the offender would be placed. This formulation would allow an aggregate sentence longer than the sentence which would be passed for the most serious offence if it stood alone, but would ensure that the sentence bore some recognisable relationship to the gravity of the sentence" which would be passed for the most serious offence"

23.      In the decision of this Court in Wall v AG (9th July 1998) Jersey Unreported CofA, a paragraph appears, no doubt apposite to the particular facts of that case, which reads:

"In the application of the totality principle it is considered appropriate that the aggregate sentence should not be longer than the upper limit of the normal bracket of sentences for the category of case in which the most serious offence committed by the offender would be placed."

This observation adopts the point made in the second of the passages from Thomas that I have read.

24.      In AG v McIntyre (21^st January 1999) Jersey Unreported CofA the applicant relied on the paragraph that I have quoted from Wall. As to that the Court said:

"Wall was a case in which consecutive sentences ranging from 4 years to 3 years to 1 year totalling 7½ years had been passed and these were reduced to 5½ years in toto. It was the judgment in Wall which resulted in a decision being taken to make an application in this matter for leave to appeal out of time.

The observations of the Court of Appeal in Wall, for the reason which we have stated, have no relevance in fact to the present case where there are no consecutive sentences but merely concurrent ones. However, since the totality principle as apparently formulated in Wall was the subject of extensive submission before this Court and indeed formed the basis of the applicants application for leave to appeal as we have stated, it is appropriate that we should briefly express our views on the matter albeit recognising that they are obiter and that the principle may require further consideration in a case where the point is directly in issue before the Court.

Advocate Boléat for the applicant submitted that in Wall the Court had, in the passage cited above as well as in other passages in its judgment, in effect formulated the totality principle as requiring that the sentence imposed should not exceed the upper limit of the bracket in which the most serious offence should be placed. In our judgment the totality principle cannot be defined in so restricted a way. The principle is no more than a statement of the obvious commonsense proposition that the sentencer has a duty to look at the totality of the consecutive sentences and be satisfied that the cumulative effect of those sentences is not excessive in relation to the conduct of the accused or his particular circumstances. We draw attention to Thomas Principles of Sentencing (2^nd Ed'n) pp.56-61 and the cases that are cited in that work. It may be the case, in particular circumstances, that a cumulative sentence will offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved but such will not necessarily be the case. As Professor Thomas points out at p.59 of the same work:

"The English Court of Appeal has on occasion upheld consecutive sentences amounting to a total in excess of the statutory maximum for the individual offence concerned and even consecutive maximum sentences."

In addition to the cases referred to by Professor Thomas, we mention the case of R -v- Prime (1983) 5 Cr.App.R.(S) 127 and R -v- Hunter (1979) 1 Cr.App.R.(S) 7 as examples of cases where the aggregate sentence exceeded the statutory maximum for the most serious offence.

We do not consider that the Court in Wall was in fact purporting to formulate the totality principle in so rigid terms as to elevate it into a fixed rule that in every case or in every case of sexual abuse the cumulative sentence could not exceed the upper limit of the normal bracket of sentences for the most serious offence in respect of which the accused was convicted. In our view the Court was doing no more than stating that, in the particular circumstances of that case, the application of the totality principle, in the general terms stated above, led to the conclusion that it was appropriate that the cumulative sentence should not exceed the upper limit of the bracket in which the more serious offence committed by Wall should be placed. If, contrary to this view, the Court in Wall was going further and seeking to lay down a principle applicable to all cases of this kind, then this Court would respectfully disagree with that approach."

In the present case the point  arises directly for decision. It is sufficient for us to say that we agree with what this Court said, obiter, in McIntyre.

25.      The two offences of possessing cannabis and heroin were distinct and separate offences committed whilst on bail for the manslaughter charge, the more serious of the two being committed a mere 3 days after the less serious one. The fact  that an offence or offences  are committed on bail is usually, and in this case is, a very good reason for imposing consecutive sentences. As it was, the Royal Court was prepared to make the sentences for those two offences concurrent with each other. We do not think that there was anything wrong with the sentences looked at in totality. This is now underscored by the fact that the sentence of 3 ½ years was, itself, considering less than what it would have been, in the light of the guidelines set out in this judgement.

26.      Accordingly we dismiss the application.  We, also, order that no part of the time spent by the defendant in custody pending appeal shall be disregarded in computing the time period in prison. 

Authorities

Wall-v-AG (9^th July, 1998) Jersey Unreported CofA; [1998/148];

AG-v-Doyle (8^th March, 1995) Jersey Unreported; (1995) JLR. N.23;

AG-v-Wilson (24^th March, 1994);

Carter-v-AG (28^th September, 1994) Jersey Unreported CofA;

Mason-v-AG (24^th June, 1996) Jersey Unreported CofA.

AG-v-McIntyre (21^st January 1999) Jersey Unreported; [1999/11]

Clarke and Purvis (1992) 12 Cr.App.R (S) 552.

Thomas: Principles of Sentencing (2^nd Edition): pp.52-61

Attorney General's Reference No. 5 of 1995 (Thomas James Johnson) [1996] Cr.App.R (S) 85.