Jersey Unreported Judgments

[2003]JCA008

COURT OF APPEAL

                                                              16^th January, 2003.

Duncan Edward STAMMERS

-v-

The Attorney General

Application for leave to appeal against a sentence of 7½ years' imprisonment passed on 4th November, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 16^th August, 2002, following a guilty plea to guilty to:

[On 16th August, 2002, the Court ordered that Count 2 of the indictment should remain on the file.]

Leave to appeal was refused by a Single Judge of the Court of Appeal 0n 12^th December, 2002, and on 16^th December, 2002, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court.

Advocate Mrs. S.A. Pearmain for the appellant;

Advocate S.E. Fitz, Crown Advocate.

JUDGMENT

HODGE JA

1.        This is the judgment of the Court.  Duncan Edward Stammers ("the Applicant") was convicted by the Royal Court on 4 November 2002 of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.

2.        He committed the offence on 22 June 2002 when he imported a quantity of heroin at the Elizabeth Ferry Terminal.   The weight of the heroin was 104 grams.  It would have had a street value of between £31,200 and £46,800.

3.        The Applicant pleaded guilty to the offence on 9th August 2002 and on 4th November 2002 the Royal Court sentenced him to seven and a half years' imprisonment.  In this application he seeks leave to appeal against this sentence.

Factual background

4.        The Applicant is aged 44 years.  He has resided in the Croydon area for all of his life and in recent years has lived in Croydon with his girlfriend and their son.  He has used drugs since about 1988.  He has experience of employment as a roofer and the background to the offence was that he got into debt after borrowing £2,000 from moneylenders to purchase a van for the purpose of his business.  When he found himself out of work the moneylenders removed his van and still required repayment of the debt.  He undertook to act as a courier of the drugs into Jersey in order to clear this debt.

5.        He arrived in Jersey on the ferry from Weymouth on 22nd June 2002 and was questioned by Customs Officers.  He appealed to a Jurat against a request to search his person and attempted to escape while that appeal was being arranged.  He was easily apprehended.  On apprehension, customs officers discovered on the floor where he had been apprehended a package of drugs wrapped in brown tape and with pink elastoplast-type tape stuck to its corners.  A later search of his person revealed that he was wearing tight fitting cycle shorts which had elastoplast-type tape around the left leg and white residue around the right thigh of the shorts.  He did not co-operate with customs officers. He reserved his plea when he appeared in the Magistrate's Court on 24th June 2002 but pleaded guilty on 9th August 2002.

6.        The Applicant has a considerable number of previous convictions.  Most of his convictions were for theft and related offences and since 1990 for the possession of controlled drugs.  They were dealt with by fines.  But in 1998 he was sentenced to 60 days' imprisonment for the possession of heroin.  In 2000 he was sentenced to twelve months' imprisonment for the possession of cannabis resin with intention to supply and to 6 months consecutively for possession of heroin.

The Application

7.        Advocate Pearmain, who appeared on behalf of the Applicant did not dispute that this was a serious offence and accepted that the starting point for a custodial sentence before taking account of mitigating factors was ten years.  We agree.  That starting point is wholly consistent with the guidance which this court has given in Rimmer, Lusk and Bade v AG (2001) JLR 373 where, in paragraph 34 of its judgment, this court stated that the bands for the importation of inter alia heroin included a starting point of 10 to 13 years for quantities weighing between 100 and 250 grams.

8.        Her contention was that the Royal Court had failed to take into account, or sufficiently to take into account, mitigating factors in reducing the sentence from the starting point of ten years by only two and a half years.

9.        She referred us to three cases, AG -v- Price [2001] JRC 170, in which there was a reduction of five years from a starting point of thirteen years, AG -v- Moy (10^th January 2002) Jersey Unreported; [2002/7], in which there was a reduction of four years from a starting point of thirteen years and AG -v- Selway (10^th October 2002) Jersey Unreported; [2002/187]  (a case which is on appeal before us), in which a starting point of eleven years was reduced by five years to a sentence of six years.  By contrast with these cases, Advocate Pearmain argued that the Applicant had not been given a sufficient reduction from the agreed starting point of ten years.

10.      Advocate Pearmain also submitted that insufficient account had been taken of the Applicant's guilty plea.

11.      In support of her submission, Advocate Pearmain suggested that the following matters were relevant to mitigation.  She suggested that the guilty plea was significant as although the Applicant had been caught red-handed he was not carrying the drugs internally.  She emphasised that the motivation for the Applicant's involvement in the importation was not a drug-related debt, as so often it is, but a commercial debt arising from the purchase of a van for his business.  She pointed out that the Applicant's girlfriend and child had been threatened in order to pressurise the Applicant to carry the drugs onto the island.  Finally she referred us to references in favour of the Applicant and to his letter of 1 November 2002 in which he expressed remorse over his actions.  Advocate Pearmain argued that the appropriate discount was a discount of one-third from the starting point.

Our decision

12.      In our view the issue in this case is not what the sentences were in the other cases cited but what are the mitigating factors in this case.  We do not derive any assistance from the citation of the other cases.  As this Court said in Wood v AG (15 February 1994) Jersey Unreported:

"It is necessary and important .... to remember that reference to earlier cases is made in order to see the principles and guidelines which have been laid down there and to follow them.

The purpose of referring to earlier cases is not to analyse the exact sentence which was then passed and the precise reasons why the Court arrived at it.  This would be an impossible undertaking since sentencing is a discretionary exercise in each case and the reports do not include every feature which influenced the Court in exercising its discretion on earlier occasions."

13.      This is clear in the cases on which the Applicant relies.  In the report in Price the details of mitigation were the guilty plea and "compelling matters set out in background and alcohol and drugs service report", while in the report in Moy the details were "Guilty plea, residual youth, quite powerful mitigation contained in various reports".  In each case the judgment gave no further details.  In Selway the terse terms of the report gave limited insight into the circumstances on which we have been fully addressed in an appeal in that case.

14.      In relation to the guilty plea, we observe that this Court has often pointed out that the discount to be allowed for a guilty plea depends upon the particular circumstances of the case.  When a courier is caught with concealed drugs on his person he has no real option but to plead guilty.  See Campbell -v- AG (1995) JLR 135 at pages 132 and 146 and Carter -v- AG (28 September 1994) Jersey Unreported. 

15.      In this case the Royal Court decided on a reduction of two and a half years from the starting point of ten years.  This was a twenty-five per cent discount in the context where the Applicant was caught red-handed and the guilty plea has to be assessed against that background.  This discount seems appropriate, if not generous, as we think that the other factors put forward as mitigation carry little weight.  The court cannot give any real weight to an argument that the Applicant deserves credit for seeking to discharge a non-drug debt rather than a drug debt by the illegal importation of drugs.  In any event the social enquiry report reveals that his drug taking habits have cost him large sums of money.  This money could otherwise have been directed to repaying his commercial debt.  A person exposes himself and his loved ones to the risk of threats when he chooses to involve himself in handling illegal drugs.

16.      The Applicant cannot assert good character.  Nor can he claim to have co-operated with the authorities until he pleaded guilty in circumstances in which the plea was almost unavoidable.  We have had regard to the references which were submitted and to his letter of remorse.  In all the circumstances we do not think the sentence is excessive.  We refuse leave to appeal.

17.      As Mr Stammers did not attend the court yesterday, it is appropriate to state that Advocate Pearmain raised on his behalf every point which could properly be argued.  We are grateful to both counsel for their assistance. 

Authorities

Rimmer, Lusk and Bade -v- AG [2001] JLR 373.

AG -v- Price (2nd August 2001) Jersey Unreported; [2001/170]

AG -v- Moy (10^th January 2002) Jersey Unreported; [2002/7]

AG -v- Selway (10^th October 2002) Jersey Unreported; [2002/187]

Kenward -v- AG (14^th July 2000) Jersey Unreported; [2000/137]

Wood -v- AG (15^th February 1994) Jersey Unreported.

Carter -v- AG (28^th September 1994) Jersey Unreported.