2001/24
5 pages
COURT OF APPEAL.
23rd January, 2001
Before: |
Sir John Nutting, Bt., Q.C., President; |
|
P.D. Smith, Esq., Q.C., and; M.G. Tugendhat, Esq., Q.C.. |
Karen Irene Durkin
-v-
Her Majesty's Attorney General.
Application for leave to appeal by Karen Irene Durkin against a total sentence of 4½ years' imprisonment, passed on 27th September, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 1st September, 2000, following guilty pleas to:
1 count of: supplying a controlled drug , contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.
Count 1: cannabis resin, on which count a sentence of 6 months' imprisonment was passed;
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 2: heroin, on which count a sentence of 4½ years' imprisonment, concurrent, was passed;.
3 counts of: possession of a controlled drug , contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978.
Count 3: heroin, on which count a sentence of 2 years' imprisonment, concurrent, was passed;.
Count 4: cannabis, on which count a sentence of 3 months' imprisonment, concurrent, was passed;.
Count 5: cannabis resin, on which count a sentence of 3 months' imprisonment, concurrent,.
Leave to appeal was refused by the Bailiff on 20th October, 2000; and on 26th October, 2000, the appellant exercised her right under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew her application to the plenary Court.
Advocate N.J. Chapman for the Appellant;
P. Matthews, Esq., Crown Advocate.
JUDGMENT.
SMITH JA:
Although we give leave to appeal because there are arguable points in this case, I think I should make it clear before I read the Judgment of the Court that we have not allowed this appeal.
1. On 27th September 2000 the Appellant was sentenced by the Superior Number of the Royal Court to a total of four-and-a-half-years' imprisonment having pleaded guilty to the following offences:
Count 1: Supplying a controlled drug, namely cannabis resin, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978 on which count a sentence of six months' imprisonment was passed.
Count 2: Possession of a controlled drug, namely heroin, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978 on which count a sentence of four-and-a-half-years' imprisonment, concurrent, was imposed.
Count 3: Possession of a controlled drug, namely heroin, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 on which count a sentence of two years' imprisonment, concurrent, was imposed.
Count 4: Possession of a controlled drug, namely cannabis, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 on which count a sentence of three months' imprisonment, concurrent, was imposed.
Count 5: Possession of a controlled drug, namely cannabis resin, contrary to Article 6(1) of the Misuse of Drugs (Jersey), Law 1978 on which count a sentence of three months' imprisonment, concurrent, was imposed.
2. The Appellant seeks to appeal against the sentences imposed. Before us Advocate N. J. Chapman appeared for the Appellant and Crown Advocate P. Matthews appeared for the Crown. We are indebted to counsel for their assistance.
3. On 19th May, 2000, the Appellant was observed by police officers passing an item, which turned out to be a small lump of cannabis resin, to a man in the street in St Helier. The Appellant and the man were arrested. The piece of cannabis in question, which was recovered, forms the subject matter of Count 1.
4. The Appellant was taken to her rented first floor flat which, together with communal areas in the block, was searched by police. They found a package containing a brown powder, which they suspected was heroin, concealed in the soil of a plant pot which sat on top of a television set in the communal area outside the door of the Appellant's flat. In addition, police found a number of packages under stair carpeting. The packages were found to contain a total of 13.34 grammes of heroin which forms the subject matter of Counts 2 and 3 and small amounts of cannabis and cannabis resin the subject matter of Counts 4 and 5.
5. The police seized £353 in cash from the Appellant's handbag and two sets of scales from the premises. The Appellant told police that the scales were used solely for cooking but they were subsequently found on analysis to show traces of diamorphine suggesting that both had been used to weigh out heroin.
6. A couple of days prior to her arrest the Appellant had purchased a motor car for a total of £2,350 in cash. The Royal Court determined that the Appellant had benefited from drug trafficking and made a confiscation order in the sum of £2,703 under Article 3 of the Drug Trafficking Offences (Jersey) Law 1988 which comprised the cash found in the Appellant's handbag and the value of the car.
7. The Appellant was neither forthright nor consistent in what she told the police as to the circumstances of the offences and eventually the Royal Court sentenced her on the basis of a version of events disclosed in the Social Enquiry Report prepared by the Jersey Probation and Aftercare Service.
8. According to the Report the Appellant told the Probation Officer that in April 2000 her stepson was arrested for drug related offences and was remanded in custody. The Appellant subsequently used her stepson's mobile telephone and she received a call meant for her stepson from his drug supplier in the course of which the supplier alleged that the stepson owed him approximately £1,000 which it was the Appellant's responsibility to sort out. Fearing violent assault on her stepson the Appellant alleged that she decided to buy approximately £1,000 worth of heroin to sell on and to use the proceeds to pay the debt.
9. The Appellant went on to say that she purchased half an ounce of heroin (approximately 14 grammes) which would have cost £2,100. Being herself addicted to heroin at that time the Appellant intended to keep half for her own use and to sell the other half to one of her stepson's "customers". That 6.67 grammes of heroin would have been enough to make 66 "score bags" with a street value of approximately £2,000.
10. The Appellant is aged forty-one years and married. She was born in Birkenhead. She had a troubled early life. She appears to be a person of some intelligence and has held down jobs in the past although she has been unemployed since 1999. It would appear that over the past five or six years she has suffered from a number of bereavements and has become addicted to heroin although she has attempted on occasions to overcome this. In 1998 the Appellant was put on probation for two years and given 90 hours' community service when she appeared before the Royal Court on charges of possessing heroin, cannabis resin and amphetamine sulphate.
11. Advocate Chapman submitted that the starting point of seven years adopted by the Royal Court on the intent to supply count (Count 2) was too high. He pointed out that this count related to only 6.67 grammes of heroin and contended that, on the evidence, the Appellant was involved in trafficking to a limited degree. She had only intended to supply one other individual and she was not near the supply source.
12. The leading authority in this Island on sentencing in a case of this type is Campbell & Ors v AG (1995) JLR 136 CofA, a decision of a five-man Court of Appeal. Clearly, the starting point adopted was taken from Campbell's case in which the Bailiff, delivering the judgment of the Court said (at p.145) "...it is seldom that the starting point for any offence of trafficking in a Class A drug on a commercial basis can be less than a term of seven years."
13. Mr Chapman drew attention to the Bailiff's statement (at p.144) that "much will depend on the amount and value of 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" and argued that the circumstances surrounding the Appellant's involvement in trafficking marked this case out as one of those exceptions in which a starting point below the Campbell minimum should be taken.
14. We do not agree. As the Bailiff's words used by him to state the usual minimum starting point in trafficking cases imply, there is always the possibility of a lower starting point being chosen for good reason in a particular case. But we do not accept that possession of a quantity of a Class A drug which can be described as a commercial quantity with intent to supply only one person is, of itself, sufficient to dictate a starting point below the usual minimum.
15. In relation to the starting point, we were referred by Mr Chapman to a number of cases. AG v Postill (2nd October 1995) Jersey Unreported, AG v Carrel (21st May 1999) Jersey Unreported, AG v Chevalier (9th June 1999) Jersey Unreported, AG v Cooper (1st September 2000) Jersey Unreported, and AG v Morgan and Schlandt (20th December 2000) Jersey Unreported, in an attempt to persuade us by comparison and contrast that a lower starting point ought to have been taken in the instant case.
16. However, scrutiny of individual circumstances of these cases (at any rate as far as the available documents permitted us to perform this exercise), revealed that there were significant differences in all of them and this tended to underline the difficulty, not to say the futility, of attempting to base the approach of a court when considering sentence in this type of case on what has happened in other cases. We consider that the correct starting point, namely seven years, was adopted by the Royal Court.
17. Mr Chapman also contended that the Royal Court did not make enough allowance for the mitigating factors in the case. In particular, he referred to the Appellant's guilty plea and evidence as to her character and background.
18. As far as her guilty plea is concerned, Mr Chapman, while conceding that the discount to be allowed was a matter for the discretion of the Royal Court, argued that the Appellant was entitled to a deduction of one-third or a percentage close to it. In the instant case the guilty plea was not proffered at the earliest possible stage. Having said this it is fair to point out that had it not been for the Appellant's admissions the prosecution could have experienced difficulty in proving possession of the drugs found in the communal areas outside the Appellant's flat had she chosen to plead not guilty.
19. However, it is obvious that a substantial discount was made in this case by the Royal Court. Whether it amounted to one-third or not we cannot say as the judgment is silent on this point. But it must have been substantial as the other factors canvassed before it and repeated before us do not, in our view, amount to a great deal by way of mitigation. The Appellant has experienced distressing life events in recent years but they neither explain nor justify her decision to indulge in drug trafficking. Whatever her character has been in the past she lost her good character when she was sentenced for drug offences in 1999. At that time there was not doubt the hope that the Appellant would be deterred from any further involvement with drugs. Unfortunately, she succumbed again and this time on a much more serious scale. The court accepts that the Appellant feels remorse but then most people do when faced with lengthy periods in prison.
20. In our opinion the sentences imposed by the Royal Court were all appropriate to the offences and the surrounding circumstances. Accordingly, the appeal is dismissed.
Authorities.
Campbell & Ors-v-AG (1995) JLR 136 CofA.
AG-v-Chevalier (9th June, 1999) Jersey Unreported.
AG-v-Cooper (1st September, 2000) Jersey Unreported.
Whyte-v-AG (17th March, 1999) Jersey Unreported CofA.
AG-v-Morgan and Schlandt (20th December, 2000) Jersey Unreported.
AG-v-Postill (2nd October, 1995) Jersey Unreported.
AG-v-Carrell (21st May, 1999) Jersey Unreported.