Jersey Unreported Judgments

2001/211

COURT OF APPEAL

26^th October 2001

Roy Lawrence DURKIN

-v-

The Attorney General

Applications; (1) for an extension of time within which to apply for leave to appeal; and (2) for leave to appeal by Roy Lawrence DURKIN against a total sentence of 9½  years' imprisonment, passed on 12^th April, 2001, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 1^st  March, 2001, following a guilty plea to:

Applications; (1) for an extension of time within which to apply for leave to appeal; and (2) for leave to appeal placed directly before the plenary Court without first being considered by a Single Judge.

Advocate R. Tremoceiro for the Appellant;

P. Matthews, Esq., Crown Advocate.

JUDGMENT

SMITH, JA:

1.        The Court has decided to extend the period of ten days prescribed by Article 3 of the Court of Appeal (Jersey) Law, 1961 and Rule 7 of the Court of Appeal (Criminal) (Jersey) Rules, 1964 within which notice of application for leave to appeal against sentence must be lodged so as to validate the notice lodged on behalf of Roy Lawrence Durkin on 22^nd August, 2001.  In addition we grant leave to appeal.

2.        The appellant was indicted on three counts.  The first charged him with the possession on 30^th November, 2000, of a controlled drug, that is to say 378.3 grams of heroin with intent to supply to another, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978.  The other two counts related to possession of 4.35 grams of heroin and 1.79 grams of cannabis resin.  We do not set out the details of these last two counts as the appellant has not sought to challenge the sentences he received in respect of them.

3.        The prosecution arose out of a search of the appellant's flat in the course of which the heroin referred to in count 1 was found in three packages wrapped in clear plastic.  The appellant was charged on 1^st December, 2000, and on 4^th December, 2000, was presented before the Magistrate's Court where he reserved his plea.

4.        On 2^nd January, 2001, he appeared again before the Magistrate's Court and pleaded guilty to the charges.  On 9^th March, 2001, the appellant was presented on indictment before the Inferior Number of the Royal Court when he pleaded guilty to the three counts.

5.        On 12^th April, 2001, he appeared before the Superior Number for sentence.  On count 1 the appellant was sentenced to 9½ years' imprisonment.

6.        In his written contentions on behalf of the appellant, Advocate R.S. Tremoceiro stated that the appellant had failed to instruct his lawyer to seek leave to appeal within the requisite period as he had been distressed and overwhelmed by the length of his sentence.  It was alleged that subsequently the appellant was struck by the apparent leniency shown in the cases of AG-v-Price (2^nd August, 2001) Jersey Unreported and AG-v-Bonnar (7^th August, 2001) Jersey Unreported.

7.        In response to this point Crown Advocate P. Matthews who appeared for the Attorney General drew attention to Fossey-v- AG (1982) JJ 223, in which the Superior Number sitting as the Court of Appeal said that an extension of time is not given as a mere matter of form and that substantial grounds must be shown for the delay before the Court will exercise its discretion to extend time.

8.        Mr. Matthews also pointed out that in Fossey's case the Superior Number went on to say that in considering an application for leave to extend time the Court of Appeal will usually have regard to the likelihood of the proposed appeal succeeding.  Against this background the respondent expressed the view that the proposed appeal should be considered on its merits and leave granted or refused accordingly.  Suffice to say that the Court decided to follow the course proposed.

9.        The contentions originally delivered on the appellant's behalf did not deal with the guideline cases of Campbell, McKenzie & Molloy-v-AG (1995) JLR 136 CofA, or Rimmer & Ors-v-AG (19^th July, 2001) Jersey Unreported CofA.  The Court drew this lacuna to the attention of the appellant's advocate by letter and as a result further contentions were delivered on the appellant's behalf.  Although before the Royal Court it had been accepted on behalf of the appellant that a twelve year starting point as proposed by the Attorney General and adopted by the Royal Court was appropriate, before us Mr. Tremoceiro contended that the starting point ought to be eleven years.  He referred us to the bands laid down in Rimmer and to the appellant's rôle in relation to the drugs.

10.      There are two factors to be taken into account in fixing the starting point in a case of this sort:  the weight of the drugs and the appellant's rôle and involvement in the trafficking (see Rimmer at paragraph 35).  As far as the former is concerned the weight of heroin would place this case in the eleven to fourteen year band.  As far as the appellant's involvement is concerned, Mr. Tremoceiro argued that as a "minder" (the appellant asserted and the Crown accepted that he had agreed to keep the drugs overnight in return for £1,000) the appellant's level of involvement should be viewed as even lower than that of a courier.

11.      Mr. Matthews drew the Court's attention to the case of Arif (1994) 15 Cr.App.R.(S) 895 in which it was held that: "The criminality of one who provided safe haven for drugs was less than that of a courier." and also to Harris [1998] 1 Cr.App.R.(S) 38 in which the same Court differently constituted stated that the proposition referred to should be treated with caution.

12.      We do not regard it as appropriate in this appeal to make any statement of general principle in relation to the respective rôles of minders and couriers.  In the instant case we consider the appellant's starting point falls to be assessed on the basis that his involvement was at the lower end of the scale.  Mr. Matthews suggested that the promise of £1,000 tended to indicate that the appellant was in direct contact with someone high in the dealing hierarchy.  However, there is really no evidence available to us which would enable us to draw that inference and we decline to draw from it anything more than the amount of money promised to the appellant.  We assess the starting point in this case at eleven years.

13.      Turning to mitigation Mr. Tremoceiro argued that the Royal Court took insufficient account of the appellant's guilty plea and other mitigating factors and that the Royal Court had been influenced by what Mr. Tremoceiro described as the highly emotive statement of the Bailiff to the effect that the appellant was holding approximately 10,000 doses of heroin "or nearly one for every family in the Island."

14.      Mr. Matthews argued that the evidence against the appellant was compelling and that his guilty plea should not attract anything like the maximum discount.  Mr. Tremoceiro contended that the appellant's admission of guilty was of great significance.  In particular it would have been open to the appellant to seek to blame another person who had left the premises where the drugs were found just before the police arrived.  Apart from saving the prosecution time and expense the appellant also saved the other person the worry and distress of a prolonged prosecution.

15.      We have concluded that the appellant's plea of guilty and the other mitigating factors present in this case, which we need not set out in detail, warrant a substantial discount.  Accordingly we substitute a sentence of 7 years' imprisonment for the sentence of 9½ years' imprisonment imposed by the Royal Court.

Authorities

AG-v-Price (2^nd August, 2001) Jersey Unreported; [2001/170].

AG-v-Bonnar (7^th August, 2001) Jersey Unreported; [2001/178].

Fossey-v-AG (1982) JJ 223.

Kenward-v-AG (14^th July, 2000) Jersey Unreported; [2000/137].

Rimmer & Ors-v-AG (19^th July, 2001) Jersey Unreported; [2001/148].

Harris [1998] 1 Cr.App.R.(S) 38.

Arif (1994) 15 Cr.App.R.(S) 895.

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