2002/133
COURT OF APPEAL
18th July, 2002.
Before: |
The Hon. M.J. Beloff, Q.C., President; D.A.J. Vaughan, Esq., C.B.E., Q.C. |
Colin Ernest VALLER
-v-
The Attorney General
Appeal against sentence of 11 years' imprisonment passed on 28th February, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 25th January, 2002, following a guilty plea to:
2 counts of: |
being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999:
Count 1: diamorphine, on which count a sentence of 11 years' imprisonment was passed;
Count 1: MDMA, on which count a sentence of 10 years' imprisonment, concurrent, was passed;
|
Leave to appeal was granted by the Bailiff on 11th April, 2002.
Advocate L. J. Kerruish for the Appellant.
M. St. J. O'Connell, Esq., Crown Advocate.
JUDGMENT
VAUGHAN JA:
1. On 28th January 2002, Colin Ernest Valler pleaded guilty to an indictment containing two counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug on 17th April 2001, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. The first count concerned the importation of 497.78 grammes of heroin with a street value of between £150,000 and £225,000 and a wholesale value of between £75,000 and £100,000. Count 2 related to the importation of 5,007 ecstasy (MDMA) tablets with a street value of between £61,000 and £105,000 and a wholesale value of between £30,000 and £50,000. In respect of both these counts the Royal Court adopted a starting point of 16 years and, allowing for mitigation, it imposed a sentence of 11 years imprisonment on the first count and 10 years on the second, to run concurrently, thus making a total of 11 years imprisonment. He has been granted leave to appeal by the Bailiff.
2. The Appellant was arrested as he drove a car off the ferry which had just arrived from Poole. On a search of the car, the ecstasy tablets were found hidden in the hub of the spare wheel and the heroin was hidden inside the driver's door panel. On being interviewed he told the Customs Officers that he had agreed to drive the car from Glasgow to Jersey for a reward of £3,000. He had been told to take his car to a location in Glasgow and to leave it unlocked and unattended. He knew that something had been hidden in the car, but he said he thought it was currency and not drugs. He had been told to bring his sister-in-law with him because it would look better if he had a companion. He initially entered a not guilty plea and his defence appeared to be that he believed he was transporting currency and not drugs. Some few days before his trial he changed his plea to that of guilty, after two previous applications for an adjournment, one on his application and one when a key defence witness was not present.
3. There is no dispute that, had the Appellant only imported that amount of heroin, the appropriate starting point would have been 14 years and if the only importation was that quantity of ecstasy the appropriate starting point would have been 13 years. The first issue is whether, when the Court is dealing not only with a very substantial quantity of one drug, but also a substantial quantity of another prohibited drug, the starting point should be increased to some extent (although the sentences would run concurrently). When the Crown moved for a starting point in the Royal Court it did not take into account the fact that the Appellant imported a very great quantity both of heroin and ecstasy but the Deputy Bailiff, by contrast, did. The Deputy Bailiff accepted that in arriving at what the Court considered to be the appropriate starting point, the Court (although it raised the matter with both Counsel in the course of argument), had not had the benefit of the conventional assistance of the Crown or the defence as to whether the approach of increasing the maximum sentence in this way was appropriate. As was said by this Court in Fogg-v- AG (1991) JLR 31 CofA, and Connolly-v-AG (7th July, 1997) Jersey Unreported; [1997/128] this does not constitute per se a ground for allowing an appeal, but requires careful scrutiny by this Court of the reasons for the sentence.
4. There is no Jersey precedent, other than this case, as to the proper approach in such circumstances where very substantial quantities of two different drugs are imported at the same time. However, this issue was dealt with by the Court of Appeal in Guernsey on the combined appeals in Mark Richards et al of 18th April 2002, where five Appellate Judges, including the Bailiff of Jersey, decided (having examined the jurisprudence of both Bailiwicks: ibid paragraph 1) that:
"It is a feature of some cases that two different drugs are imported at the same time, both in significant quantities. It may be two different Class A drugs, or a Class A drug and a Class B drug. In such cases the combined quantity is a relevant factor in determining the extent of the criminal conduct, which must be greater than if only one drug was imported. In such cases the court should assess the appropriate starting point in respect of each of the drugs, and then determine a "total" starting point, taking into account the overall quantity. Thereafter the mitigation will be applied to arrive at the actual sentences to be imposed. The court then provides for the total length of sentence by imposing a greater term of imprisonment than otherwise would have been imposed for the more serious of the two offences (if such can be identified) to run concurrently with the other sentences imposed. Consecutive sentences should not normally be imposed in such cases, since that may create a misleading impression that each offence is being sentenced more leniently than it is. The court must state in any such case both what the court considers to be the appropriate "total starting point" and how it is arrived at."
5. We consider that such an approach is also appropriate in this jurisdiction when the quantities of the different drugs are so significant. Were it otherwise, as the Deputy Bailiff aptly pointed out in his sentencing remarks, once the accused had imported a significant quantity of one drug, there would be no extra penalty imposed at all in respect of the importation of a very significant quantity of another drug, be it of the same Class as the original drug or a different Class.
6. We therefore consider that the Royal Court was correct in increasing the starting point sentence for the greater offence, in order to take into account that a substantial quantity of another drug was also imported. We do not consider that in adding a period of 2 years to the sentence of 14 years to arrive at a starting sentence of 16 years could be said to be in any way excessive in the circumstances of the present case. Two years is a relatively small proportion of the 13 years which would have been the starting point for the ecstasy alone. We do not consider that we can provide general guidance beyond that which was given in Richards, since there is such a wide variety of potential combinations and permutations of wrongful importation of controlled drugs. There can be no precise read-across: for example, an additional quantity of ecstasy cannot be equated to the same additional quantity of heroin, although bands for different quantities of drugs should always be taken into account. Each case will have to take account of its individual circumstances. In the ordinary event when a sentencing Court adds a period, it should have to take into account the general principle to ensure that the total sentence is not excessive.
7. It is suggested that a lesser sentence should have been appropriate because the Appellant was a "mule" or "courier" and not a "baron" or commercial trader with an interest in the profit to be obtained. However, we consider that, in particular, given the great quantities of both drugs involved here, the starting point of 16 years is appropriate, in the circumstances of the present case, where the combined value of the drugs involved have a street value of up to £330,000. It should not be overlooked that, according to the guidelines of this Court, as set out in Rimmer & Ors-v-AG (19th July, 2001) Jersey Unreported; [2001/148], the minimum sentence for the importation of 400 grammes of heroin is 14 years, and here the quantity involved was substantially more than that amount. If the Appellant had been involved commercially in the importation or the organiser, the starting point would have been considerably higher. It must also not be overlooked, as was said in AG -v- Clarke (24 July 2001) Jersey Unreported; [2001/155]: "This Court has repeatedly said that the part played by couriers is a vital part in the long chain which leads to drugs being sold in the Island". In this respect it is also significant that the owners of the drugs were prepared to entrust this massive amount of drugs with such a street value to the Appellant.
8. We now turn to the question of mitigation. The sentencing court reduced the starting point of 16 years to a sentence of 11 years to take into account the mitigating factors. In imposing that sentence and by reducing the sentence by 5 years, the Royal Court made clear it took into account the guilty plea (although made at a very late stage and after two adjournments of the trial). The two factors of additional significance taken into account by the Royal Court were the age of the Appellant and his health. The Royal Court considered these as "powerful" additional matters of mitigation, which clearly indicates they were both taken into account.
9. The Appellant was aged 57 at the time of the offence and suffered from a severe heart disease, which could involve surgery in the future and suffered a bowel condition which could involve the removal of his bowel. These could affect his life expectancy. The issue of health has been dealt with by the Court of Criminal Appeal in England in Basil Mortimer Bernard [1997] 1 Cr App R (S) where Rose LJ set out four general principles in relation to ill-health as a mitigating factor. They are:
"(i) a medical condition which might at some unspecified future date affect either life expectancy or the prison authorities ability to treat the prisoner satisfactorily may call into operation the Home Secretary's powers of release by reference to the Royal prerogative of mercy or otherwise but that is not a reason for this Court to interfere with an otherwise appropriate sentence;
(ii) The fact that the offender is HIV positive or has a reduced life expectancy, is not generally a reason that should affect sentence;
(iii) A serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate;
(iv) An offender's serious medical condition may enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate."
We consider these principles also apply in this jurisdiction.
10. Notwithstanding those principles, it is clear that the Royal Court did allow a further reduction in the sentence to take into account the age and the ill health of the Appellant and reduced the starting point by 5 years (that is to say almost one third) to take these added factors into account in addition to the rather tardy plea of guilty. We consider that such a reduction to be wholly appropriate and therefore we dismiss the Appeal.
Authorities
Fogg-v- AG (1991) JLR 31 CofA.
Connolly-v-AG (7th July, 1997) Jersey Unreported; [1997/128].
Rimmer & Ors-v-AG (19th July, 2001) Jersey Unreported; [2001/148].
AG -v- Clarke (24 July 2001) Jersey Unreported; [2001/155].
Richards et al-v-HM's Procureur (18th April, 2002) Guernsey CofA.
Bernard [1997] 1 Cr. App R (S).
Campbell & Ors-v-AG [1995] JLR 136 CofA.
Bonnar & Noon-v-AG(2001) JLR 626 CofA.
McMinn-v-AG (13th July, 2000) Jersey Unreported CofA; [2000/132].
Channing-v- AG (26th October, 2001) Jersey Unreported; [2001/213].
Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2nd Ed'n): s.301.
Durkin-v-AG (24th January, 2001) Jersey Unreported CofA; [2001/24].