Jersey Unreported Judgments

2002/134

 

COURT OF APPEAL

 

 

18^th July, 2002.

 

 

Lesley Barbara WHITEHOUSE

-v-

The Attorney General

 

Application for leave to appeal against sentence of 5½ years' imprisonment passed on 28^th February, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 22^nd February, 2002, following a guilty plea to:

1 count 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.

Leave to appeal was refused by the Bailiff on 12^th April, 2002; and on 15^th April, 2002, the Appellant exercised her entitlement, under Article 39 of the Court of Appeal (Jersey) law, 1961 to renew the application to the plenary Court.

 

M.L. Preston for the Appellant.

M.St.J. O'Connell,  Esq., Crown Advocate.

 

 

 

 

JUDGMENT

 

 

vaughan ja:

1.        This is a renewed application by Lesley Barbara Whitehouse for leave to appeal against a sentence of 5½ years imprisonment passed on 28^th February 2002 by the Superior Number of the Royal Court following her guilty plea to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to Article 61 of the Customs and Excise (Jersey) Law 1999.  The controlled drug was heroin.

2.        On 31^st December, 2001 Mrs Whitehouse arrived at Jersey Airport on a 'plane from East Midlands Airport.  She was stopped and questioned on arrival.  She said that she had no identifications and that she had thrown away her flight ticket.  She was asked to fill in a landing card and used a false name.  She was asked if she had any drugs on her and she admitted she was carrying heroin.  On being searched there were found to be 2 brown tape wrapped packages concealed in her bra.  The packages were found to contain 121.8 grammes of heroin with a purity of 41%, with a Jersey street value of £36,540 to £54,810 and a wholesale value of between £18,270 and £24,360.

3.        According to Mrs Whitehouse she had been approached by someone she had met through her son who lived in Jersey.  Her son had been a heroin user, but was at the time on a methadone treatment programme.  That person, who she did not name, had asked her if she wished to make easy money and she declined.  She later agreed (following threats, which we will deal with later) and agreed in consequence to act as courier for £1,000 plus her air fare.  It is clear that she knew that the package contained heroin.

4.        When Mrs Whitehouse was sentenced by the Royal Court, the Court took as a starting point a sentence of 10 years, and not the 11 years for which the Crown contended.  This was the lowest level in the appropriate band for such an importation as set out in the guideline case of Rimmer & Ors-v-AG (2001) JLR 373 CofA.  In taking this as the starting point, the Royal Court said that 10 years was appropriate, having regard to her role and the background to the circumstances in which she came to be involved.

5.        It was urged on us, as it had been strenuously urged on the Royal Court, that this was an exceptional case in which the Court would be entitled to go below the sentencing band, and that a sentence of 9 years was the appropriate starting point.  Strong emphasis was placed on the circumstances which led to this Court adopting a starting point below the appropriate band in the case of Mrs Noon in Bonnar & Noon-v-AG  [2001] JLR 626 CofA.  The Royal Court declined to do so.  We deal first with the issue whether this is to be treated as an exceptional case for the purposes of the appropriate starting point.

6.        In Rimmer the Court stated:

 "We emphasise that these bands represent only guidelines, and are not to be treated as if embodied in a statute.  The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of drugs and their role and involvement are principal factors, together with other lesser and relevant factors, as indicated above.  The margins of these bands are also not to be treated as set in stone.  There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate." (Paragraph 33).

7.        From this it appears that the first exercise of the Court is to consider the starting point.  As we have already stated, in this case the importation of 121.8 grammes of heroin justifies a starting point of 10 to 13 years which is indicated.  The second exercise is to consider whether the case is an exceptional one, allowing the starting point to be modified either upwards or (as is contended in this case it should be) downwards.  The Court will at this juncture concentrate on the degree of involvement of the offender in drug trafficking and the circumstances particular to the offence; other circumstances particular to the offender are more properly considered under the head of mitigation.

8.        As this Court said in Rimmer at paragraph 22:

"In the judgment of this court, there is a clear distinction to be drawn between the different levels of involvement in the drugs trade.  For example, to sentence the simple "mule" and the ultimate drugs "baron" identically would be both inappropriate, having regard to the degrees of harm which those at each level inflict on society, and therefore the different degrees of culpability, and plainly unfair to the defendants at the lower levels of involvement.  The links in the chain are not of equal strength or significance in the sentencing context." 

9.        In Noon this Court provided an example of circumstances in which the starting point was below the usual band.  They said of Mrs Noon :

 [para 25]  "She was an unusual courier, in that she was not involved in drugs at all, did not have a debt to pay off, and only agreed to carry the 2,258 Ecstasy tablets as a result of threats to her son (and to herself) and of strong persuasion by her son.  The Royal Court accepted that her son was clearly the prime mover, while she was an unwilling pawn.  The Royal Court took a starting point of nine years for Mrs. Noon, and eleven years for her son.  If regard had simply been to the relevant band set out above, Mrs. Noon's starting point is at the bottom of the third band, and her son is at the top of the same band.  In the absence of any exceptional factors those starting points would be in line with recent cases (as well as our guidelines) and difficult to challenge.  Mitigating factors cannot be taken into account in assessing the starting point.  We consider that Mrs. Noon's role in the trafficking of these Ecstasy tablets could just, and only just, be described as exceptional, justifying a movement below the bands to an eight year starting point.  But we emphasise this is solely because of the features of her particular role, and we do not lengthen this judgment further by setting out those features fully.  We also consider that an eight year starting point is more appropriate by comparison with the eleven year starting point for her son.  

10.      We were invited to make a direct read across from Noon to this case.  We decline to do so.  In Kenward-v-Attorney General (2000) JLR at 254-255), this Court said:

"At this juncture we would like to make an observation about the utility of the reference by counsel in this area to other decided cases.  Guideline cases of an appellate court are always of assistance, that indeed is their purpose.  But a guideline case such as Campbell itself constantly refers to the principle, manifestly correct, that guidelines have always to be adapted to the facts of any particular case.  It is therefore of limited utility to refer to decisions, particularly those of courts sitting at first instance, which are (or should be) applying those guidelines to the cases before them.  Not only do such cases turn substantially on their own facts; the facts themselves available and taken into account by the court may not always appear on the face of the judgments; and a read across from one set of facts to another is often a vain exercise." 

This principle was endorsed again by this Court in Rimmer.

11.      What is or is not an exceptional case axiomatically depends therefore upon the appreciation by a particular court of particular facts.  We must look at the particular facts of this case as the Court of Appeal looked at the particular facts of Noon.  We discern nothing so exceptional in them as to allow for departure from the band in a downward direction.  Mrs Whitehouse acted for reward.  The threats, whose genuineness we must - as did the Royal Court - accept, were not of immediate violence to her or her family.  As a mere courier she may be at the bottom of the relevant band; but, as an essential link in the chain of importation, she does not fall below it.

12.      We are particularly concerned to scotch any impression that the claim that a defendant acted as a courier because of threats would of itself always or even usually to be taken to justify a lower starting point.

13.      First, as the Court of Appeal said in Rimmer at paragraph 23:

"The Attorney General submitted that every defendant seeks to minimise his role and involvement.  He pointed to the difficulties which the prosecution faces in challenging the defendant's story in this respect.  We acknowledge that difficulty, which is inherent particularly in cases in which the defendant pleads guilty before trial.  But there are some remedies.  If the defendant's story is not credible, the Royal Court can be asked to reject it as incredible.  If on its face the story has some degree of credibility, it may be possible to challenge the story by means of a Newton hearing.  In the judgment of this court, the risk that defendants may sometimes succeed in overly minimising their role and involvement is no justification for excluding this as a principal factor, or in that respect departing quite radically from the Campbell guidelines, which in our view remain appropriate and effective."

14.      Secondly, in our view the approach articulated by the Court of Appeal in Guernsey in Re Mather and Cooper (22 July 1999) has much to recommend it.  The Court there said:

"If the Courts were willing to accept that those who felt compelled by threats to assist drug dealers falling short of the quality of duress necessary to avoid a defence, they would be adding a new category to the single group whose membership automatically results in a reduction of sentence.  In our view it would be wrong to add to any such category."

15.      The third exercise (after identification of the band and consideration of whether it should be departed from) is to consider any mitigation.  Here the advocate for the Appellant has urged upon us the similarities of features between the case of the Appellant and those of Noon.  We repeat our warning of the dangers of any attempted read across.  But at this point in the analysis we find her advocate's arguments more persuasive.  The Royal Court, starting from its basic starting point of 10 years, reduced the sentence by 4½ years, a reduction of 45%.  In making this reduction the Deputy Bailiff, in his sentencing remarks, said that the Court took into account her early plea of guilty and her remorse and "most significantly the fact that her daughter's childhood was blighted with tragic events, which are set out in the Reports, and which have left that daughter with on-going problems."  Also mentioned was the fact that Mrs Whitehouse clearly played a key role supporting her daughter and grand-daughter, and accordingly any prison sentence was also going to work harshly on them.  It is clear furthermore that the Royal Court took into account the absence of any previous convictions for drug offences and the essential rôle she also played in looking after her parents, and made reference to the threats.

16.      The Probation reports stressed Mrs Whitehouse's "extremely low self-image and lack of assertiveness".  She was seen to be highly susceptible to influence, especially by her son and issues relating to her family.  At the outset an application was made for an adjournment of the hearing for a psychiatrist's report to be produced, but we declined to grant such an application because we considered that all relevant matters were fully dealt with in the Probation Report, and that such an additional Report would add little to what we knew of the sad circumstances of the applicant.

17.      Although we accept that by reducing the starting point by 45%, the Royal Court was making a very significant reduction, we do not consider that sufficient weight was placed upon the matters set out in the Probation Report referred to above and we accordingly consider that the reduction should have been for a slightly higher amount.  We consider that the reduction should have been 50%. 

18.      Accordingly we grant leave to appeal and, we allow the appeal to the extent that a sentence of five years is substituted for the Royal Court's sentence of five and-a-half years.

 

Authorities

Rimmer & Ors-v-AG [2001] JLR 373 CofA

 Bonnar and Noon -v- Attorney General [2001] JLR 626 CofA.

Kenward-v-Attorney General (2000) JLR at 254-255.

Re Mather and Cooper (22^nd July, 1999) Guernsey Court of Appeal.