Jersey Unreported Judgments

2002/14

COURT OF APPEAL

17^th January, 2002.

Amanda Jane Cooke

-v-

The Attorney General

Application for leave to appeal against sentence of 6 years' imprisonment  passed on 6^th September, 2001, by the Superior Number of the Royal Court , to which the Appellant was remanded by the Inferior Number on 16^th July, 2001, following a guilty plea to:

Leave to appeal was refused by the Deputy Bailiff on 5^th October, 2001, and on 10^th October, 2001, the Appellant exercised her entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew her application to the plenary Court.

Advocate Mrs. S.A. Pearmain for the Appellant.

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

JUDGMENT

TUGENDHAT ja:

1.        On 6 September 2001 Amanda Jane Cooke ("the Applicant") pleaded guilty to an Indictment containing a single count alleging an offence under Article 61 of the Customs and Excise (Jersey) Law 1999. This alleged that on 6 May 2001 she was knowingly concerned in the fraudulent evasion of the importation of a controlled drug, MDMA (commonly known as Ecstasy), which is specified in the Misuse of Drugs (Jersey) Law 1978, Second Schedule Part I. The quantity was, or was the equivalent of, 3152 tablets with a wholesale value of between about £19,000 and £31,000 and a street value of between about £38,000 and £48,000. She was sentenced to 6 years imprisonment. Leave to appeal was refused by the Single Judge on 5 October 2001. This is the judgment of the Court on her application (renewed under the Court of Appeal (Jersey) Law, 1961 Art 39) for leave to appeal against that sentence.

2.        The grounds of appeal as advanced before us by Advocate Pearmain are that the sentence is manifestly excessive in that insufficient account was taken:

of her rôle and involvement in the importation of the drug;

of mitigation on her behalf including: (i) her co-operation, (ii) that she gave information about a potential co-accused; (iii) her plea of guilty at the earliest opportunity; (iv) her emotional and intellectual immaturity; (v) that she had no previous drug convictions (albeit a lengthy record of petty crime); (vi) the effect on her children aged 9 and 4.

3.        The Applicant arrived in Jersey on the ferry from Weymouth. She was stopped by Customs Officer Mahoney to whom she said the was going to stay in the island for an indefinite length of time with a friend, and that she had nothing to declare. A search of her baggage revealed nothing. But she consented to a search of her person, and prior to its commencement she told Customs Officers Mahoney and Rose that she was carrying drugs on her person. During the search she produced a clear plastic bag from within a pair of men's boxer shorts which she was wearing between her own underwear and a pair of tights. The bag, which she handed over, contained a quantity of tablets. In answer to questions she said that she thought the tablets were Ecstasy, but that she did not know how many there were.

4.        The Applicant was interviewed on 7 May. Another passenger from the ferry had been stopped separately. He was Carl Harris. In interview the Applicant stated that she had been approached at home in Liverpool by Harris and that he had offered her the chance to pay off her drug debts. She made clear that Harris was not the main supplier in this operation and that she did not know who the main supplier was. She left Liverpool the following day with Harris, driving in his van overnight to Weymouth. She bought her ticket with money which she understood to have been provided by Harris's supplier. It was agreed that she was to disembark the ferry and meet Harris who would then take the package to another person for onward supply. She was to receive £100 for her involvement in this importation. She said she assumed that the tablets were Ecstasy and she thought she was carrying about 3,000 tablets, because there were three bags, each of which, she assumed, contained 1,000 tablets. This contradicted her earlier statement to the Customs Officers that she did not know the number of tablets she was carrying.

5.        Whilst the Applicant was being dealt with, Harris was arrested and found to be in possession of a personal amount of heroin. It was not thought that the Applicant had been instrumental to that arrest. There was insufficient evidence to prosecute him for the larger importation of Ecstasy by the Applicant. He was sentenced to seven weeks imprisonment by the Magistrates in respect of the heroin.

6.        At a financial interview on 6 May 2001 the Applicant stated that she was unemployed and in receipt of DHSS benefits. She claimed to owe a dealer £350 and had no assets.

7.        After various remands, the Applicant pleaded guilty to the Indictment on 16 July 2001. When she appeared for sentence before the Superior Number of the Royal Court on 6 September the Crown moved for a starting point of 11 years on the basis that she was a courier whose role was to be distinguished from that of a supplier. The Crown took the view that Harris was at best a potential co-accused as fellow courier. The Crown accepted the Applicant's statement that he should not be regarded as the ultimate supplier. The Crown submitted that at 28 she was not entitled to the benefit of youth. As noted above, she could not be regarded as of good character. At that time it was believed that the children were residing with their father, the Applicant's partner. As a result of the Applicant's heroin addiction her mother had been heavily involved in their upbringing.

8.        The Crown referred the Court to the Social Enquiry Report. That recorded that since the age of fourteen she had been in a relationship with her partner, with whom she has lived since she was seventeen. Papers received from the Merseyside Probation Service revealed that the relationship was violent. The Applicant had started smoking cannabis at the age of fourteen, had occasionally used LSD, and had become addicted to heroin at the age of twenty, being introduced to it by her partner. After a period of rehabilitation from heroin, she and her partner relapsed. Neither of them was in stable employment. The applicant's criminal history began towards the end of 1995. It includes 13 fraud and kindred offences, and 15 theft and kindred offences. She had been sentenced to imprisonment on three separate occasions in 1999, but otherwise dealt with mostly by probation orders. Her explanation for the offence in Jersey was the common one, that she was being threatened with violence by her drug dealer to whom she was indebted. Also, as is common, she was unaware of the value of drugs on this island, believing what she carried to be worth about £3,200. She considered it unfair that Harris should be sentenced only for possession of the heroin leaving her to 'face the music'. She had shown an improvement in her health and demeanour while in custody in Jersey. She herself appreciated this, to the extent that she was not minded to request a transfer to England. While that would bring her nearer her children, she thought it would also risk embroiling her again in heroin use. A Report by the Jersey Alcohol and Drugs Service concluded that she was emotionally and intellectually immature, and had been unable to extricate herself from a violent and exploitative relationship.

9.        On this basis the Crown moved for a discount of 4 years to reflect these mitigating factors, making a total of 7 years imprisonment.

10.      Advocate Pearmain elaborated upon all the foregoing matters in the course of her submissions to the Royal Court. She placed more emphasis than did the Crown on the role of Harris, describing him as the controller and the man who delivered the drugs to her in Weymouth. Advocate Pearmain also emphasised the information which the Applicant gave to the Customs Officers, although she had to accept that the Applicant could give nothing more than she knew, which was very little. She moved for a starting point of 8 years - having regard to Rimmer, Lusk, and Bade-v-AG  (19^th July, 2001) Jersey Unreported CofA; [2001/148] - with a discount for mitigation of 5 years, leading to a proposed sentence of 3 years.

11.      The Bailiff took account of the submissions of Advocate Pearmain, adopted a starting point of 10 years, and then applied the reductions moved for the Crown, leading to the figure of 6 years.

12.      After the sentence, on 26 October 2001, this Court gave guidelines on Ecstasy importations in the case of Noon and Bonnar-v-AG (26^th October, 2001) Jersey Unreported CofA; [2001/212]. For an importation of 2500-4000 tablets the guideline starting point is 10-13 years imprisonment, the Court stating that adjustment should be made within that band to take account of the role and involvement of the defendant, and other less significant factors including values. Advocate Pearmain therefore accepted that the starting point of 10 years adopted by the Bailiff would be consistent with the guidelines, but she submitted that that starting point failed to take into account what she submitted was the exceptional factor affecting the Applicant's role and involvement. This, she submitted, was that there was insufficient evidence to pursue a prosecution against Harris in respect of the Ecstasy. Advocate Pearmain pointed out that, while setting out the guidelines, this Court also accepted that Mrs Noon's case could be regarded as exceptional, and applied a lower starting point than the guidelines indicated. However, we emphasise that what the Court said was that Mrs Noon's role could 'only just be described as exceptional', and refer to the matters set out in para 30 of that judgment as to her role. She was an unwilling pawn of her own son. There is nothing in the Applicant's role that could be described as exceptional. Her role is unfortunately all too common.

13.      We also note that the matters available to Mrs Noon in mitigation (set out in para 31 of that judgment) resulted in a discount of 4 years, and that not all of these matters are available to the Applicant. We accept that her willingness to give information is a matter which the Applicant is entitled to have taken into account. But willingness is not the only factor. It is a matter of chance whether the information which a willing accused is able to give is of value or not. In this case, as is commonly the case with couriers, the information was of little value. The fact that a potential co-accused is not prosecuted for the same offence is also a very common feature of these cases. That may be because the other person is not arrested, or, as here, because there is insufficient evidence against him.  That is not a matter to be taken into consideration at all.

14.      On 2 September 2001 the Applicant's partner was arrested and subsequently he was imprisoned for burglary. It is thought likely that he will be released in February or April this year. The children are being cared for by their grand mother. Advocate Pearmain rightly points out that, for a child, one year is a longer time than for an adult, and from the children's point of view any reduction in their mother's sentence would make an important difference. But mothers of young children are vulnerable and are commonly used as couriers. We think as much weight has already been given to this circumstance of the Applicant as can be given.

15.      We conclude that, in the light of the guidelines laid down in Noon and Bonnar, and notwithstanding the most helpful submissions of Advocate Pearmain, the sentence of 6 years is certainly not excessive.

16.      The Application is dismissed. Pursuant to Article 35(4)(b) of the Court of Appeal (Jersey) Law1961, we direct that no part of the time spent by the Applicant in custody shall be disregarded.

Authorities

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

Noon and Bonnar-v-AG (26^th October, 2001) Jersey Unreported CofA; [2001/212].

AG-v-Noon and Noon (2^nd August, 2001) Jersey Unreported; [2001/172].

Campbell, Molloy and Mackenzie-v-AG (1995) JLR 136 CofA.