Jersey Unreported Judgments

2002/166

COURT OF APPEAL

 

13^th  September, 2002.

 

 

Ruth THEAKER

-v-

The Attorney General

 

Application for leave to appeal against sentence of 4 years' imprisonment  passed on 28^th May, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 26^th April, 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: MDMA.

 

Leave to appeal was refused by the Bailiff on 5^th July, 2002, and on 10^th July, 2002, 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 C.R.G. Deacon for the Appellant.

Mrs Sally Sharpe, Crown Advocate.

 

 

 

JUDGMENT

 

 

NUTTING JA:

1.        On 26 April, 2002, this Appellant appeared before the Inferior Number of the Royal Court and pleaded guilty to a single count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of MDMA, commonly known as Ecstasy, a controlled drug of Class A, contrary to Article 61 (2)(b) Customs & Excise (Jersey) Law 1999.

2.        On 28 May, 2002, the Appellant appeared before the Superior Number for sentence.  Having heard an outline of the facts and considered mitigation advanced on the Appellant's behalf, the Court, over which the Deputy Bailiff presided, sentenced the Appellant to 4 years' imprisonment and, having determined in accordance with Article 6 of the Drug Trafficking Offences (Jersey) Law 1988 that she had benefited from drug trafficking, ordered that the amount of £70 be recovered from the Appellant.

3.        On 30 May 2002 the Appellant gave notice of her intention to apply for leave to appeal the sentence of imprisonment on the ground that it was "manifestly excessive".

4.        The application was considered by the Bailiff who refused it on 5 July 2002.  The Appellant renewed her application before this Court.  We granted the application and, by consent the application was treated as the substantive appeal.

5.        The facts were as follows.  During the course of the evening of 11 March 2002 the Appellant arrived at Elizabeth Quay, St Helier, from Portsmouth.  She was accompanied by her son, who was 10 years of age at the time.

6.        She was stopped by a Customs Officer who enquired as to the reasons for her visit.  The Appellant stated she lived in Liverpool, and had been driven to Portsmouth by her father and had travelled to Jersey for five days to see her boyfriend who was working on the island as a scaffolder. 

7.        Customs' officers asked whether she would consent to a search of her person including a medical examination and X-ray.  She agreed.

8.        She was transferred to the General Hospital and examined by a Police Surgeon.  An X-ray taken of her lower abdomen confirmed the surgeon's findings of two foreign bodies in her rectum.  When confronted with the results of the X-ray, the Appellant admitted that she was carrying drugs.

9.        Later two small packages containing a total of 382 tablets of MDMA were recovered.  The street value of such a consignment is estimated to be over £4,500 at current prices.

10.      The Appellant was interviewed.  She stated that she was a heroin addict and had been approached by two men in Liverpool with a view to importing drugs into Jersey as a means of paying off her drug debt.  She related how the men had taken her shopping, had purchased an outfit for her journey and paid for her to have a haircut and a session on a "sun bed" to improve her appearance.  She said she was told to take her son with her as a means of concealing the true purpose of her journey to Jersey.

11.      She described how she had inserted into her rectum the packages with which she was provided, left Liverpool with her son and the two men, and driven to Portsmouth Ferry Terminal where tickets and cash for the return journey were supplied to her.  She was told to await contact from a man on her arrival either at the exit of the ferry or at the Adelphi pub.

12.      It is apparent that, apart from an initial prevarication, she acknowledged her guilt and maintained it at her earliest Court appearance.

13.      The Appellant is 30 years of age.   She has previous convictions for offences of theft, mainly shoplifting.   She was cautioned in 1996 for the possession of a small quantity of heroin.

14.      A social enquiry report prepared for the benefit of the Court emphasised the strong bond between her and her parents, both in their sixties, who live in Liverpool and who are currently caring for her child.  Unfortunately both parents suffer serious health problems.  Mr Theaker is a diabetic and has emphysema; Mrs Theaker, who had an operation for cancer two years ago, suffers from arthritis and osteoporosis.

15.      It is clear that the Appellant's addiction to heroin dates back to the early 1990s.  She was introduced to the drug to help her to compensate for the loss, after admission to prison following a robbery conviction, of her long term boyfriend and father of her child.  On his release from prison, he too became addicted and in the period until his most recent prison sentence in February 2002, she and her boyfriend were spending £200 per day on their habit.  This was financed by the borrowing of money by the Appellant from her parents and by the proceeds of crime committed by the boyfriend.

16.      Four years ago the Appellant made an effort to rid herself of her dependence at a rehabilitation centre at Skelthorne House near Huyton.  At the time of the commission of this offence, having contacted her GP early in 2002, she was awaiting an appointment at Hope House in Liverpool, another rehabilitation clinic.

17.      She has shown insight into her problems in the past and the reports before the Royal Court and before us indicate she has a real understanding of the depths to which her addiction caused her to sink and the risks she ran in maintaining her habit, not only for her own liberty but for the happiness of her young son, and the health, mental and physical, of her elderly parents who have done so much, and continue to do so much, to support her.

18.      Her explanation for acting as a courier follows a pattern depressingly familiar to anyone who sits in courts in this jurisdiction whether of first instance or appellate.  She claims that, following her boyfriend's recent incarceration, money to finance her habit dried up and her supplier allowed her to run up a debt of £700.  When she told him she had no way of paying this sum, he offered her the opportunity of paying off the amount if she was willing to act as a courier of drugs to Jersey.

19.      When she demurred, she claims that threats of violence were made affecting not only herself but her child and her parents.  She agreed to commit the offence under the combined pressures of her boyfriend's incarceration, her indebtedness, her dependence on her supplier for a continuing source of heroin and the threats to her family.

20.      Advocate Deacon, who appeared before us on behalf of the Appellant made three points. 

First, she submitted, the Royal Court was wrong to take as a starting point for sentence the figure of 8 years.  She acknowledged that bands for the starting point in a case involving units of a Class A drug of between 1 - 50 grams is 7 - 9 years in accordance with the guidelines laid down by this Court in Bonnar & Noon-v-A.G. (2002) JLR 626 CofA.  But she submitted that the facts of this case warrant a starting point of 7 rather than 8 years.  She submitted that the former is an appropriate starting point because a figure at the bottom of the bracket is more apt to reflect the role played by this Appellant in this importation.

21.      We do not agree.

22.      The fact that this Appellant was addicted to heroin and was motivated to commit this offence by reasons of need rather than greed do not serve to justify the lowest figure within the guidelines.  If those involved in the drug trade are allowed to use their addiction as justification for a lower sentence than would otherwise be appropriate, they would be permitted to derive benefit from the addiction which only drugs can satisfy, and courts would find themselves in the unacceptable position of acknowledging that the worse the addiction of the importer, the stronger the mitigation.

23.      Courts in this jurisdiction have made it clear that couriers who act under duress falling short of that required in law to afford a defence to crime, or who act as couriers in order to reduce or expunge debts incurred because of their addiction, cannot generally expect those matters to serve to reduce their sentences.  The Royal Court emphasised in AG-v-Lusk (12^th April, 2001) Jersey Unreported; [2001/186]:

" ... violence and threats are an inescapable part of the dirty business of drug trafficking; it (sic) is no mitigation",

and in Trinidade (20^th July, 2000) Jersey Unreported; [2000/141]:

" ... if people get themselves into debt through the purchase of drugs, they have only themselves to blame for having embarked in the first place and we will make no allowance for the fact that they are subsequently threatened and commit offences under those threats."

We endorse those comments.

24.      It is the responsibility of this Court and the Royal Court to seek to deter trader and consumer alike.  If it were to become the practice for addicts to receive lower sentences for importing drugs than those who imported for other reasons, the incidence of using addicts as couriers would be likely to increase.  The Courts' policy of deterrence is a necessary instrument in society's efforts to reduce so far as possible the availability of Class A drugs. 

25.      Moreover the amount of drugs involved in this offence was towards the upper end of units defined in the relevant band.  We see no warrant for concluding that a starting point at the bottom of the sentencing bracket is appropriate for a quantity of drugs near to the top of the unit band.

26.      The second point made by Advocate Deacon is that the Royal Court failed adequately to take account of the mitigation available to this Appellant.  She conveniently summarises the points of mitigation under ten separate headings in the written submissions dated 6 August 2002 which she provided to this Court.  Those points include the Appellant's co-operation when detained and her guilty plea, her personal circumstances prior to and at the time of the commission of the offence, her longstanding addiction to heroin and her efforts to overcome it, her willingness to help others upon her release, the impact on her and on her child of a lengthy separation, her parents' fragile health, her reasons for committing this offence, and the character references written in support of her.

27.      All these points and others were apparent to the Deputy Bailiff on 28 May 2002 in the documentation then before the Court and in the persuasive submissions made by Advocate Clarke on that occasion.  There is no reason to suppose that in their deliberations the Deputy Bailiff and Jurats did not have these points in mind. 

28.      Indeed if reference is made to what the Deputy Bailiff said in sentencing the Appellant, it is quite clear that he acknowledged the persuasive force of those points and carefully itemised those which the Court had found to be particularly relevant.  He defined, in accordance with the principles to which we have already referred, matters which necessarily afforded little assistance to the Appellant and those which the Court was able to take into account in her favour.  He said this:

"There is powerful mitigation in this case.  In the first place it is clear that the offence arose immediately following her partner being sentenced to imprisonment.  The drug dealers then approached her and offered her heroin on credit.  Not long afterwards they called in the debt and said that it could be extinguished by her undertaking the run.  There were the usual threats which accompanied that suggestion.  As we have said on other occasions, it is unfortunately so often the case that those who incur debts to drug dealers will be subject to threats and it is not a matter to which this Court can give much weight.  She has, however, pleaded guilty at an early stage and she has no previous drug convictions although she does have convictions for dishonesty.  She has shown herself determined to kick her drug habit and is making concentrated efforts in prison to do this.  We have received a number of letters and references from her family and others and they show that there is a very good side to this defendant.  Most significantly she has, as we have said, an 11 year old son.  He is now being looked after by her parents.  However, they are both in poor health. We have seen the reports in that respect.  She had hitherto given considerable assistance in looking after them.  They now have to take on the burden of looking after her son.  It is clear from what we have been told that, in view of their health, there must be a possibility that one or more will not survive until the end of any prison sentence.  This would clearly have a considerable effect on the son, and the grandparents, as well as on the accused.  We take all this into account but, of  course, these are so often the inevitable consequences of persons undertaking criminal activities such as these."

It is therefore clear that the Royal Court considered all matters in the sentence passed.  We reject Miss Deacon's second submission, as we see no reason to give further discount based on these matters.

29.      But Miss Deacon has a third point which is based on evidence not available to the Deputy Bailiff.  The point arises in this way.  When the Appellant was eleven years of age she was subjected to a rape by a close and older relative on an occasion when she and he had been left alone together in a house where the Appellant was spending part of her summer holiday. 

30.      The long term effect of such an incident on this Appellant must necessarily be a matter of speculation in so far as it impacts upon matters relevant to count 6 of the indictment; but the medical evidence before us contemplates the real probability that its effect on her personality made her less capable of coping with the stresses of life as an adult, and less capable of resisting the blandishments of those who persuaded her to solve the emotional difficulties occasioned by her boyfriend's incarceration by resort to heroin. 

31.      That the Deputy Bailiff was unable to take this important matter into account was not the fault of the Appellant.  Notwithstanding an instinctive and understandable reluctance to re-live the dreadful experience which befell her in early puberty, the Appellant did mention the assault to the Probation Officer who prepared the report for the Court. 

32.      We do not know, and have not enquired, precisely what she said to the Probation Officer, nor do we know in any detail why the Probation Officer did not include the fact of what she said in her report.  She has confirmed that though the Appellant did mention the matter she he did not consider it relevant to the offence for which the Appellant was before the Court. 

33.      The important fact is that the Royal Court was unable to take this matter into account and no blame attaches to the Appellant for that omission.  We have considered carefully the Appellant's affidavit concerning this incident.  We have also read a medical report prepared on behalf of the States of Jersey Health and Social Services Department whose analysis we have found helpful and whose conclusions we accept. 

34.      We take the view that this matter adds to the mitigation and we consider therefore we should reduce the sentence to take account of it.  We propose to substitute a sentence of three and a half years' imprisonment.  To that extent the appeal is allowed.

Authorities

Bonnar & Noon-v-A.G. (2002) JLR 626 CofA.

AG-v-Lusk (12^th April, 2001) Jersey Unreported; [2001/86].

AG-v-Trinidade (20^th July, 2000) Jersey Unreported; [2000/141].

AG-v-Clarke (24^th July, 2001) Jersey Unreported; [2001/155].

Campbell & Ors-v-AG (1995) JLR 136 CofA.

Chevalier-v-AG (29^th September, 1999) Jersey Unreported; [1999/159].

Travis-v-AG (13^th July, 2000) Jersey Unreported; [2000/131].

AG-v-White  (7^th November, 1997) Jersey Unreported.