Jersey Unreported Judgments

[2003]JCA010

COURT OF APPEAL

                                                              17^th January, 2003.

Susan Elizabeth SELWAY

-v-

The Attorney General

Application for leave to appeal against a sentence of 6 years' imprisonment passed on 10th October, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 12th July, 2002, following a guilty plea to:

The application for leave to appeal placed directly before the plenary Court without first being considered and determined by a Single Judge.

Advocate S.E. Fitz for the Appellant;

A.D. Robinson, Esq., Crown Advocate.

JUDGMENT

CAREY JA

Introduction

1.        On the 10th October 2002 the applicant was sentenced by the Superior Number of the Royal Court to 6 years' imprisonment on an indictment containing one count of importation of a Class A drug (248.54 grams of heroin).  Her application for leave to appeal against sentence has been referred directly to this Court and this is the Court's judgment thereon.

Circumstances of the Offence

2.        On the 28th May 2002 the applicant arrived by air from Bristol.  The all too familiar story of persons passing through the customs hall with drugs has one distinguishing feature on this occasion in that it was Selway who approached the customs officer who apprehended her by enquiring whether she could obtain a taxi outside the arrivals hall.  The officer's response was to enquire further into the circumstances of her travel.  The applicant stated that she had travelled to the Island in order to collect her 5 year old daughter who was currently residing in the Island with her father, Michael Wintle. She had no hold baggage as she was intending to return the next day.  Enquiries into the arrangements for travel revealed that 2 tickets had been bought, one for the day before and a further one for that day.  On both occasions return was to be the following day, namely the 29th May.  The reason that she had not been able to take up the flight on the previous day - Monday 27th May - was that the car taking her to the airport broke down and she missed the flight.   Further enquiries concerning Mr Wintle were made and a mobile phone number was given.  The Applicant was detained for further investigation.  About an hour and a half after her initial apprehension she admitted to a customs officer that she was carrying drugs and shortly thereafter she produced an oblong shaped package containing a light brown powder from beneath her clothing.  Later on she admitted that she had a further package, internally concealed, which was subsequently removed by the police doctor.  Again that package contained a light brown powder.  Both packages in fact contained heroin.

3.        Questions and answers were recorded.  These continued to refer to her coming to collect her daughter.  She had a debt to somebody called Bill and in return for bringing the drugs over to Jersey, the debt for £985 would be cancelled.  She maintained that she thought that what she was carrying was cannabis but not heroin.

4.        The conclusions of the Crown Advocate were that the appropriate starting point in this case was 11 years' imprisonment  which, with available mitigation, could be reduced to 6 years.

The Plea in Mitigation

5.        Advocate Fogarty appeared for the applicant at her trial.  Advocate Fogarty could not disagree with the starting point in view of this court's decision in Rimmer, Lusk and Bade [2001] JLR 373 CofA.  She emphasised, as has Advocate Fitz before us, the pressure under which the applicant felt from the money lenders.  There was other mitigation which was of substance.  Firstly there was a guilty plea - although in the circumstances a finding of guilt after a trial must have been inevitable.  The applicant had had a difficult start in life and further problems of failed relationships which resulted in her being in effect a single mother with two young children aged 8 and 5.  It was accepted that mistaken belief in the nature of the drugs imported is not a factor which this Court can properly take into account.  Advocate Fitz appeared before us.  She suggested a starting point of ten years, the lowest end of the band for importation of amounts weighing between 100 and 250 grams.  She submitted that the Royal Court failed to account of the following areas of mitigation.

(a)       The fact that the applicant approached the customs officer by asking where she could get a taxi.  Advocate Fitz raises the point that this was an attempt to alert the customs officer to her predicament, a point that appears not to have been raised at trial.

(b)       The threats of the money lenders and pressure under which she was put to come to Jersey with drugs.  Particular weight should have been given to the fact that the money she owed was not in respect of a drug debt.

(c)       The serious effect that her incarceration was having on her children who were now separated, with one living with her father and the other living with an aunt. 

(d)       The erroneous belief that she was bringing cannabis and not heroin.

(e)       Her early guilty plea intimated when she was charged by the Centenier.

(f)        The problems in her upbringing and life thereafter as revealed in the reports.

Decision

6.        The Royal Court accepted the starting point of 11 years which in fact is the second lowest point on the band for 100 to 250 grams.  We can see nothing wrong with that starting point having regard to the Rimmer guidelines and the fact that the quantity imported fell only 2 grams short of the maximum weight on the band. We note the limited strength of the consignment but this Court has said that, generally, purity with drugs in powder form should not be taken into account (see Rimmer 389). 

7.        The issue for this Court therefore is whether a 45% discount on that starting point was so ungenerous that this Court should disturb the sentence imposed by the Royal Court.   This question has to be answered by evaluating the points made by counsel for the applicant and what the sentencing Court said about them. 

8.        Our first comment must be to reject as incredible the suggestion that the applicant was trying to give herself up at the airport.  She only came clean when her offending was detected and in the interim repeated a false story about her child being in the island.  Normally, claims of threats and erroneous belief, whilst they are accepted as part of the defendant's case, carry little weight simply because they are generally incapable of verification and available to nearly all offenders to raise.  Clearly, if there is evidence to support them, then the Court may be able to treat them meaningfully as mitigation - see for an example the decision in R v. Taoris (1974) 59 Cr.App.R. 160, where the prosecution accepted that the accused had acted after being beaten up and threatened.  There was, apparently, no evidence offered here to entitle the Court to satisfy itself that this was the case, either in respect of the threats or the erroneous belief.  However, in delivering the sentence of the Court, the learned Commissioner said:

"We can even accept that she thought she was carrying cannabis powder.  We are very concerned at the fear which was brought to bear upon her in order to pressure her into carrying out this importation."

9.        This seems to indicate that the Court was accepting the truth of what she was saying and in those circumstances the sentence can reflect these points of mitigation when normally this Court will be saying that substantial weight cannot be given to them.  We accept that the vulnerable and naïve will be used as couriers, as will parents of young children.  Lowering sentences in such cases will merely encourage such persons to be recruited. 

10.      On the other hand this Court is deeply troubled by the effect separation from their mother and from each other is having on the children.  This is a case where the sentence must be kept to a minimum to serve the needs of justice.  Whilst we cannot fault the reasoning of the Royal Court we consider, having looked at the matter again and with great care, that we can allow this application to the extent that the applicant's sentence should, as an act of mercy, be reduced to one of five years.     

Authorities

Rimmer, Lusk and Bade [2001] JLR 373 CofA.

Whitehouse -v- AG (18^th July 2002) Jersey Unreported; [2002/134];

R -v- Taoris (1974) 59 Cr. App.R.160.