2002/74
COURT OF APPEAL
4th April, 2002.
Before: |
R. C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey. |
Simon Paul HUMPHRYS
-v-
The Attorney General
Application for leave to appeal, and for an extension of time within which to apply for such leave, against sentence of 4 years' youth detention passed on 2nd August, 2001, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 1st June, 2001, following a guilty plea to:
1 count of: |
Possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978 : Count 1: MDMA. |
The applications for leave to appeal and for an extension of time within which to apply for such leave were placed directly before the plenary Court, without first being considered by Single Judge.
Advocate R. Tremoceiro for the Appellant.
A. D. Robinson, Esq., Crown Advocate.
JUDGMENT
CAREY JA:
1. This is the judgment of the Court in respect of an application for leave to appeal and for an extension of time within which to apply for such leave against a sentence of 4 years youth detention passed on the 2nd August, 2001, by the Superior Number of the Royal Court. The Applicant had been remanded to the Superior Number after entering before the Inferior Number on the 1st June, 2001, guilty pleas to both Counts on the indictment presented against him alleging respectively possession of a controlled drug of Class A (MDMA) with intent to supply and simple possession. Any confusion over the effect of recording guilty pleas to both counts was overcome at the trial before the Superior Number where it is recorded that the Crown withdrew the second count of simple possession.
2. The sentence imposed on the first count was one of 4 years' youth detention. In addition the Applicant admitted breach of an earlier probation order imposed following his guilty plea to an indictment alleging numerous offences mainly involving motor cars. On the count of breaching probation he was sentenced to a further six months' youth detention consecutive. He does not now apply for leave to appeal against that sentence or the decision to make it consecutive to the sentence on the first count.
3. No separate point is taken by the Crown concerning the Applicant's delay in seeking leave to appeal against sentence and this Court is proceeding on the same basis as if this application had been lodged in time, that is to say that if it is minded to grant leave to appeal the Court will extend time. The circumstances surrounding this offence were that the Applicant, a single man, was at the material time associating with a woman who lived in Ann Street. As a result of information received the police mounted an inquiry into alleged drug related activities by the Applicant and the woman and obtained a search warrant in respect of the woman's flat. Although the Applicant claimed to live with his father he spent nights with the woman. The search of the main bedroom of the flat yielded a total of 107 MDMA or ecstasy tablets, £295 in bank notes and what was believed to be a couple of deal lists. The Applicant was arrested and admitted that the drugs were his but he did not admit any intention to supply. Both he and the woman were charged with possession and with possession with intent to supply. Despite the early admission that the drugs were his rather than the woman's the Applicant continued to equivocate about the circumstances of his possession of the drugs although as has been recorded he pleaded guilty to the more serious count when he appeared on the 1st June.
4. The evidence that we have outlined pointed clearly to the engagement of the Applicant in commercial activity so far as the MDMA tablets were concerned. On his own admission the size of the original consignment was 150 tablets rather than the 107 that were discovered at the flat. To that extent the Crown's case depends on the Applicant's own admissions, and to use Mr. Tremoceiro's words he has written his own indictment.
5. As has been mentioned this was a late application and by the time it was lodged it was found that the tapes of the hearing had been wiped. It does however appear to be common ground that the Royal Court took the starting point for this offence as 7 years and that indeed would tie in with the tariff identified later in the case of Bonnar and Noon v. Attorney General (26th October, 2001) Jersey Unreported; [2001/212]. With this starting point the Court, following the conclusions of the Crown, deemed a sentence of 4 years' youth detention to be appropriate albeit this offending took place earlier in 2001.
6. The Applicant does not contest that an immediate custodial sentence was not appropriate but he does say that 4 years is manifestly excessive. Mr. Tremoceiro on his behalf draws our attention to a number of points, which should weigh in favour of the Applicant and compel us to conclude that the sentence is manifestly excessive.
7. Mr. Tremoceiro's points can be summarised as follows:-
(i) The guilty plea. The drugs were found at the address of his girlfriend. Had there not been admissions there would have been considerable time and expense involved in trying to prove the case against him and even then it might not have succeeded. His admission also saved the woman from exposure to prosecution.
(ii) His deprived upbringing. Clearly he had a poor start in life, but to be fair to the Jersey authorities it appears that resources were applied to helping him, albeit unsuccessfully. He was sent to a special school in England. He then went to Les Chenes which he seems to have enjoyed. He was offered further education after he left school. These opportunities together with the opportunities that were given to him when his early offending was met with community options and assistance from the Probation Service, he seems to have rejected and now finds himself sentenced to a substantial period of custody for a serious drug offence. However Mr. Tremoceiro says that some of the attempts made to help the Applicant were misdirected and that the Court would have benefited from psychological and psychiatric reports. Further there should have been an enquiry into the possibility of sending him to a specialist rehabilitation centre in the UK.
(iii) His alleged efforts at trying to change his lifestyle and his response to being charged with this offence and to being imprisoned. These are always difficult issues to quantify as it involves a judgment as to whether remorse is genuine or self-serving.
(iv) His youth. He was 19 when the offence was committed and to any teenager a sentence will appear longer in duration than it would to a person of more mature years.
(v) In addition the Applicant relies on the case of A.G. v. Mason (14th November, 2001) Jersey Unreported; [2001/230] as justifying a review of the sentence that was imposed on him and indeed for this application being late. This Court has made it clear in the past that drawing comparisons with other sentences imposed in the Royal Court is seldom a fruitful exercise, particularly as there is no way in which unduly lenient sentences can be the subject of further review. That said, the case of Mason did involve a much larger consignment of ecstasy tablets brought in by a man aged 20 years who it was accepted was a mere courier without any previous convictions of relevance. There the Royal Court having regard to previous decisions of this Court considered that 8 years' youth detention was the appropriate starting point and imposed a sentence of 4 years' youth detention.
8. Mr. Tremoceiro makes a number of other points in his written submissions. We note them but they do not persuade us that any further adjustment is called for.
9. The Royal Court concluded that the requirements of the legislation relating to sentences of youth custody were met firstly on the grounds of seriousness of the offence and secondly on the grounds of failure to respond to non custodial penalties. No serious challenge is made to this assessment despite suggestions of the need for further enquiry into opportunities for rehabilitation. Accordingly the issue for this Court is whether, taking the history of the Applicant's life and offending as a whole, it can be demonstrated that the response of the Royal Court to the current offending in imposing a sentence of 4 years' youth detention is excessive in all the circumstances or out of line with other sentences. The starting point was correctly identified as seven years and even after giving credit for all the mitigation and the fact that the Applicant is a young offender we see no grounds to interfere with the sentence imposed. Both applications are refused.
Authorities.
Bonnar and Noon-v-AG (26th October, 2001) Jersey Unreported CofA; [2001/212].
AG-v-Mason (14th November, 2001) Jersey Unreported; [2001/230].
Campbell & Ors-v-AG (1995) JLR 136 CofA.