Jersey Unreported Judgments

2002/132

COURT OF APPEAL

18^th July, 2002.

Gerald McCLEMENTS

-v-

The Attorney General

Application for leave to appeal against sentence of 3 years' imprisonment passed on 25^th March, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 15^th February, 2002, following a guilty plea to:

[Counts 1 and 2 of the indictment relate to a co-defendant who has not appealed.]

Leave to appeal was refused by the Bailiff on 16^th May, 2002; and on 22^nd May, 2002, 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.P. Michel for the Appellant.

Mrs. S. Sharpe, Crown Advocate.

JUDGMENT

vaughan ja:

1.        This is a renewed application for leave to appeal by Gerald McClements against a sentence of three years' imprisonment passed on him on 25^th March 2002 by the Superior Number of the Royal Court, following his plea of guilty to an offence of knowingly being concerned in the fraudulent evasion of the prohibition of the importation of controlled drugs, contrary to Article 61 (2)(b) of the Customs and Excise (Jersey) Law, 1999.  The drug in question was cannabis resin.

2.        On 17th December 2001, a Customs Officer stopped a foot passenger who had travelled to Jersey on the ferry from Weymouth.  The passenger gave his name as Mr. Godfrey and produced a landing card in that name.  It was a false name.  In fact he was McClements.  He said he was visiting his brother and that he would be staying at the Royal Yacht Hotel.  He said that he had nothing to declare.  He subsequently admitted that he was carrying a controlled drug and on being searched there was found 28 bars of cannabis resin in a body belt.  The weight of the cannabis was 6.559 kg with a Jersey street value of £40,370.00.  McClements had £511.00 in cash on him.  He was not prepared to name the person who had supplied him with the cannabis or the intended recipient of the cannabis.  There was also another passenger on the ferry, Leonard Cooke, who was also carrying an almost identical amount of cannabis also in a body belt (as well as a quantity of cocaine).

3.        The Deputy Bailiff, in his sentencing remarks, stated that the correct starting point for sentence for the importation of that quantity of cannabis by McClements was 4 years (and not the five years as has been contended for by the Crown) and the Court applied that starting point for both McClements and Cooke (with regard to the cannabis).  In the case of McClements the starting point was reduced by one year to three years' imprisonment.  In making that reduction he said that the Royal Court was taking into account the plea of guilty (but of course, as he and Cooke had been caught red handed, there was no realistic alternative) and the fact that, notwithstanding his criminal record, he had no previous conviction for any drug related offence.  The reduction made in the case of Cooke from the four year starting point was 1½ years, making a sentence of 2½ years on Cooke for the cannabis offence.

4.        It is urged on us on behalf of McClements that leave should be given to appeal because the appropriate reduction should have been the same as in the case of Cooke, either to avoid a disparity of sentence, or because that was the proper reduction in the light of the mitigation available to McClements.

5.        The approach by this Court on disparity of sentences has been most recently spelled out in Wright -v- AG  (12^th July, 1999) Jersey Unreported CofA; [1999/125], which quoted from Rayner-v- AG  (25^th September, 1996) Jersey Unreported CofA as follows:

"The principle that this Court will interfere where there is a glaring difference between sentences imposed on different defendants in the same case, such as to give rise to a  sense of injustice, is a principle which is plainly recognised in the law of Jersey:  see Mawdsley -v- AG (8^th July, 1996) Jersey Unreported CofA; Lynch -v- AG (24^th July, 1991) Jersey Unreported CofA; (1991) JLR N.15 CofA, and Hollman, Cummins -v-AG (4^th April, 1995) Jersey Unreported CofA.

It is important, however, to understand the nature of that difference.  It is not a difference which might strike a casual onlooker as unjust, but only one in which there is full knowledge of all the relevant facts and circumstances.  When the facts and circumstances of this particular case are fully considered, there is, in the opinion of this Court, no difference such as to give rise to any legitimate sense of injustice."

6.        The sentencing court was clearly well aware of the need to avoid disparity in sentencing between McClements and Cooke, for the starting point was the same for both men for the importation of the cannabis. The features of their cases were very similar: hence they were, properly, jointly charged on the same indictment.  It being accepted (as they contended) that they were not engaged in a joint venture with regard to the importation of the cannabis.  If they had been on a joint venture the starting point for both of them would have been much higher.

7.        It is clear that the Royal Court considered that the mitigating factors which were relevant in the case of Cooke justified a greater reduction in his case, than it did in the case of McClements. 

8.        We have not been provided with the Social Enquiry Report or the antecedents in any detail in the case of Cooke.  It is clear, however from the transcript of the sentencing proceedings, that he had spent most of his working life as a paratrooper in the Army, and had thereafter run a pub with his wife and that, until he was 52, he had no criminal involvement at all.  It was only after his wife died that his life fell apart and he lost his job and his savings, and thereafter he became involved in smuggling, first in relation to tobacco, and subsequently in 1996 when he drove a vehicle which was importing cannabis into the United Kingdom. The sentencing remarks show that the Court considered that his good record prior to reaching 52 and in particular his Army record was something for which he should get credit.  Moreover, it was urged on the Court on his behalf that the fact he was 65 years old at the time would mean that he would be about 70 years old when he came out of prison and this was urged on his behalf to justify a further reduction.  We consider the sentence upon Cooke for the importation of the cannabis was correct and indeed there was no appeal from it.

9.        In the case of McClements there was no question of any equivalent mitigation, whether with regard to public service or length of time without criminal involvement.  Indeed, he had, as his advocate accepted, an appalling criminal record, although he did not have any involvement in drug offences.  His criminal record included 22 robbery, theft and similar offences, 17 offences involving fire arms, shot guns and offensive weapons and one offence against the person.  He had been sentenced at the Central Criminal Court in 1980 to 10 years imprisonment for six robbery offences with imitation fire arms and in 1989 to 12 years for a further eight robbery offences committed with a shot gun.  He was released on a conditional licence from prison from that second sentence in October 1997, although the due date for the expiry of his sentence was May 2001.  Clearly there was nothing in relation to his record, such has been available to Cooke, apart from the fact there was no involvement in drug offences, which could be taken into account by way of mitigation by the sentencing court.  His record was not used to increase the sentence but could not be used to decrease it.

10.      The Social Enquiry Report provided no additional reasons, apart from his almost inevitable plea of guilty, why there should be any mitigation based upon his personal circumstances.  McClements was aged 50 at the time, and the most that could be said for him was that he felt remorse that he had let his children and step-children down.  We have no doubt that, taken alone, the reduction of one year by way of mitigation was correct, and the attempts to equate the degree of mitigation in his case with that of Cooke is misplaced. 

11.      We consider, as did the sentencing court, that while it was appropriate to take the same starting point for the importation of the cannabis, there were significant differences with regard to the mitigating factors which could be advanced on behalf of McClements and Cooke such as to justify a greater reduction in the case of Cooke.  We consider that there was no difference in sentence so as to give rise to any legitimate sense of injustice.  It should not also be overlooked that the effective sentence imposed upon Cooke was four years, which was the sentence after reduction for mitigation for the importation of the cocaine, and that his sentence for the importation of the cannabis was to run concurrently with that sentence.  Accordingly the actual sentence for the importation of the cannabis would not in any way increase the effective sentence.  Therefore, whether or not Cooke was sentenced to two and a half years (as he was) or three years (as was McClements), it would make no difference to the length of time which Cooke would spend in prison.  Where the starting point is the same, but the mitigating factors are different, we consider that it would have been wrong to impose the same sentence in order ostensibly to achieve equality of treatment.  If in fact they had received the same sentence, given the disparity of the mitigating circumstances, then it would have been Cooke who would have reason to complain. 

12.      For these reasons we dismiss the application for leave to appeal.  Is there any application?

[Submissions by Counsel]

13.      Despite the fact that you say it is the practice of the Court of Appeal to disapply Article 35, we feel there was no conceivable merit in this appeal and there was no prospect of success.  Accordingly we decline to make the direction under Article 35(4)(b) of the Court of Appeal (Jersey) Law, 1961.

Authorities.

Wright -v- AG (12^th July, 1999) Jersey Unreported CofA; [1999/125].

Campbell & Ors-v-AG (1995) JLR 135 CofA.

Thomas: Current Sentencing Practice: Sections A9-3A01; A9-3C01; A9-5A04.