[2003]JCA081
COURT OF APPEAL
15th May, 2003.
Before: |
R.C. Southwell, Esq., Q.C., President; Sir John Nutting, Q.C.; and P.D. Smith, Esq., Q.C. |
Christopher John ILLIDGE
-v-
The Attorney General
Application for leave to appeal against a sentence of 5 years' imprisonment, passed on 13th February, 2003, by the Superior Number of the Royal Court, to which the Applicant was remanded by the Inferior Number on 13th December, 2002, on a guilty plea to:
1 count of: |
being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise Law 1999: count 1: cocaine, on which count a sentence of 5 years' imprisonment was passed; |
1 count of |
possession with intent to supply a controlled drug, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1961: count 2: cocaine, on which count no sentence was moved for by the Crown; count to remain on the file |
The application for leave to appeal was refused by the Deputy Bailiff on 12th March, 2003; and on 14th March, 2003, the Applicant 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 Applicant;
Mrs. S. Sharpe, Crown Advocate.
JUDGMENT
NUTTING ja:
1. On 13 February 2003 this Applicant appeared before the Superior Number of the Royal Court to be sentenced in respect of offences to which he had pleaded guilty at an earlier hearing of the Inferior Number.
2. He was originally charged in an indictment containing 3 counts each relating to the same seizure of cocaine. The first count charged him with importing the drug, the second with possessing it with intent to supply, the third with simple possession.
3. He pleaded guilty to the first 2 charges, but not guilty to count 3. The Crown accepted the pleas and a verdict of not guilty to count 3 was recorded.
4. Since the first 2 charges, though not strictly alternative, effectively encompassed a similar mischief, the Royal Court allowed the plea to count 2 to lie on the file, and imposed no separate penalty upon it. The sentence in respect of the first count, framed as one of fraudulently evading the prohibition on the importation of cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, was one of 5 years' imprisonment.
5. Having been refused leave to appeal against this sentence by the Deputy Bailiff, the Applicant renewed his application before the Full Court.
6. The facts were these. On 21 November 2002 the Applicant arrived at the Airport on a flight from Birmingham, carrying a plastic shopping bag as he alighted from the aircraft. He was kept under observation by Customs Officers who saw him enter the disabled lavatory when he reached the baggage hall. He was later seen to collect a holdall from the baggage carousel and then to hail a taxi and depart from the airport.
7. In the meanwhile Customs Officers carried out a search of the disabled toilets. This search revealed four condoms in the waste bin.
8. The Applicant, who had been followed after he had alighted from the taxi, was arrested by Customs Officers in a public house nearby. A search of his person revealed 2 NatWest coin bags containing a substance which, on analysis, proved to be cocaine.
9. In interview the Applicant admitted secreting internally the condoms containing the drug though he denied knowing the type of drug which the condoms had contained. Since he proved to be a cocaine addict himself and since it was clear that he had transferred the drug from the condoms into the coin bags in the lavatory, it is unlikely this claim was truthful.
10. He acknowledged that he had been promised payment to make the importation and told the interviewing officers that he had expected to earn £1,500. Initially he asserted that he had intended to sell the drugs himself but it is clear this did not represent the true position and was said in order to avoid further questioning as to the identity of the contact to whom he was to deliver the drug.
11. Analysis revealed the total weight of the cocaine to be 55.4 grams with a purity of 34%. Such a quantity is estimated to be worth between £3,500 and £4,400 in Jersey.
12. The Applicant is 43 years of age and is a builder specialising in the installation of kitchens. He was born in Birmingham but came to the Island 20 years ago. His daughter and his former wife continue to live here although, distressed by the break-up of his second marriage, he returned to Birmingham in 2001 to stay with his widowed mother who suffers ill health. It was there during the last 2 years that he was introduced to cocaine. By the time of his arrest he owed his supplier £7,000, according to the account he gave to the probation officer, and committed the offence because he was offered the opportunity of reducing his indebtedness.
13. He has convictions recorded against him in connection with motor cars, the last offence having been committed 8 years ago. He was quite properly treated as a person of good character by the Royal Court.
14. The Crown submitted to the Court that the appropriate starting point for sentence was 9 years' imprisonment and, having regard to mitigation apparently available to the Applicant, moved for a sentence of 7 years' imprisonment. In the event the Royal Court reduced this figure by a further 2 years to take account of the submissions made on the Applicant's behalf, and therefore ordered that he serve a sentence of 5 years' imprisonment.
15. Advocate Pearmain who appeared for the Applicant in this Court made four submissions.
16. First, she asserted that in recognition of the fact that previous decisions of this Court provide only guidance to the Court in reviewing any sentence, we should reflect the circumstances of this offence and the mitigation available to this Applicant by substituting a sentence of community service for the sentence of 5 years' imprisonment.
17. The mitigation to which Mrs Pearmain referred included the Applicant's age, good character and status as a respected builder, evidenced by the testimonials with which the Royal Court and this Court were supplied, the fact that the Applicant felt compelled to accede to the request that he import drugs to the Island in order to reduce the substantial debt to his drug supplier on the mainland, and finally the fact that the Applicant had co-operated with Customs at the time of his arrest and pleaded guilty at the earliest reasonable opportunity.
18. The Court has updated guidelines for cases of this kind as recently as 2001 in the case of Rimmer, Lusk and Bade v AG C.A. (2001) JLR 373. The guidelines refer to weight of Class A drugs in powder form in the following bands and starting points:
1-20 grams, 7-9 years' imprisonment;
20-50 grams, 8-10 years' imprisonment;
50-100 grams, 9 -11 years' imprisonment.
19. Since the amount of cocaine in this case was 55 grams, the Crown, in deference to the bands, invited the Royal Court to consider a starting point of between 9-11 years.
20. Moreover in reflection of the fact that the amount was only just within the band and that the Applicant was apparently at a low level of responsibility within the supply chain, the Crown moved for the lowest starting point within the band i.e. 9 years' imprisonment.
21. Mrs Pearmain reminded us of the passage in Rimmer which emphasises the residual discretion of the court to determine a just sentence in each case:
"We emphasise that these bands represent only guidelines and are not to be treated as if embodied in statute. The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of drugs and their role and involvement as principal factors, together with other and lesser but relevant factors as indicated above. The margins of these bands are not to be treated as set in stone. There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate." (para. 35)
22. In essence Mrs Pearmain invited us to say that the facts and circumstances of the Applicant's case would justify this Court in treating it as a case sufficiently exceptional to warrant sentencing the Applicant differently from offenders to whom the guidelines would apply.
23. We have been unable to find any circumstance either relating to the facts of the case, or indeed to the mitigation put forward, which would justify us in treating this case in the manner suggested. Accordingly the first limb of Mrs Pearmain's argument fails.
24. Mrs Pearmain submits in the alternative that if the sentence of community service cannot be achieved for this Applicant within the guidelines and the exceptions contemplated in Rimmer, we should, with or without the concurrence of the Attorney General, revisit those guidelines.
25. In advance of this submission Mrs Pearmain notified the Attorney General and invited him to make submissions to the Court with a view to reviewing the guidelines. We were told the Attorney General has declined Mrs Pearmain's invitation.
26. If we had thought it appropriate to re-consider Rimmer we would have had no hesitation in doing so whatever position was adopted by the Attorney General.
27. In support of her submission Mrs Pearmain has cited the report of Professor Rutherford who at the invitation of the Home Affairs Committee has recently completed a review into criminal justice policy in Jersey.
28. The review is extensive and, as is to be expected of such an exercise, has taken account of considerations over which this Court has no influence or responsibility. It is clear from his conclusions that Professor Rutherford inclines to the view that the risk of detection of drug traffickers is a more effective deterrent than long sentences of imprisonment for those who have been prosecuted.
29. The Professor's report also contains analyses of the prison population of the Bailiwick and draws comparisons between numbers and circumstances of incarceration in this jurisdiction compared with other jurisdictions.
30. In the light of his research the Professor concludes that the courts in Jersey should review their approach to sentences for drug traffickers, though he adds that this "should not be equated with a softening of approach to supply and importation."
31. In a forceful and interesting submission Mrs Pearmain suggested in essence that the present sentencing policy of the Jersey courts "is not working" and that a different and more imaginative approach is overdue.
32. Whether or not the thrust of Mrs Pearmain's submission is correct cannot be tested. As she frankly conceded, notwithstanding the volume of Class A drugs which enter the Island undetected, it is impossible to devine whether the availability of such drugs would or would not increase if courts adopted a more tolerant policy and substituted non custodial sentences for the sort of periods of imprisonment imposed on those who commit offences similar to that committed in this case by this Applicant. Mrs Pearmain acknowledged that a virtue of the present policy was that those minded to import Class A drugs and who are caught doing so, whether acting out of need or greed or some other motive, are at least prevented from repeating the offence for the period during which they are serving a sentence of imprisonment. Whether a policy of imposing sentences of community service on such offenders would have a similar effect was a question which Mrs Pearmain declined to answer.
33. In the event, we reject the invitation to revisit the guidelines in Rimmer which, as we have observed, updated those for offences of Class A drug importation less than two years ago.
34. We have borne in mind that Rimmer is but the last in a line of cases in which sentences for drug offences have been reviewed and confirmed during the last 20 years. The cases include:
AG v Young (1980) 1 CA 20;
AG v Clohessy & Roberts Jersey unreported 25 January 1989;
Fogg v AG CA 1991 JLT p.31;
Clarkin v AG CA 1991 JL p.213;
The 5 Judge Court of Campbell & Ors v AG & Ors CA 1995 JLR p.136;
AG v Buesnel 1996 JLR p.265;
Morgan & Schlandt v AG 2001 JLR p.225;
Rimmer op. cit;
Bonnar & Noon v AG 2001 JL p.626; and finally
Valler v AG Jersey Unreported 2002/133;
35. We are not persuaded that now is the time, nor indeed that this is the case, to undertake a root and branch review of sentencing policy in cases involving the importation or supply of Class A drugs.
36. We add this for completeness and lest the Applicant should consider he has been disadvantaged by our disinclination. We find it difficult to contemplate circumstances in which, in relation to an importation of this size, for a drug of this kind, and in respect of the circumstances which arose in this case, we should feel justified in imposing a sentence of community service.
37. Thirdly, Mrs Pearmain submits that if we cannot be persuaded to alter the sentence to community service by one of the two routes she suggested, we should nonetheless reduce the period of imprisonment because the Royal Court failed to have regard or sufficient regard, to the mitigation to which we have referred.
38. We are not persuaded by this submission. It is apparent from what Mr Commissioner Hamon said in his sentencing remarks that the Royal Court gave due credit to the Applicant for the fact that he was a man, to all intents and purposes, of good character, whose friends and associates, business and personal, had written appreciative and persuasive letters of recommendation which had influenced the Court in the Applicant's favour. Indeed as we have observed, the Court reduced the conclusions of the Crown by 2 years notwithstanding that the Crown had considered all the mitigation available to the Royal Court in defining those conclusions.
39. As to the background of the importation, it must be recognised, as this Court has often emphasised, that an offender cannot excuse his criminal conduct in relation to an importation of drugs because of his own addiction and as a result of the imperative of reducing his indebtedness to his supplier.
40. Moreover it is clear that the pressure on this Applicant to import this drug was a pressure created by his own desire to reduce the debt rather than, as is sometimes the case, the result of threats of physical harm to himself or his family. It is apparent that the Applicant agreed to undertake the importation without in any way testing the nature of the pressure which might have been applied had he refused.
41. As to the guilty plea, Mrs Pearmain submits that the Applicant was entitled to the full 1/3 reduction. It is tolerably clear from the sentencing remarks that the Royal Court declined to award him the full reduction: certainly Mrs Sharpe in her written submissions to us accepted that although the calculations of the Royal Court are not entirely clear, in reflection of the principle that the calculation of sentences should be not be a mathematical exercise, it would appear the Royal Court did not give the 1/3 discount.
42. In the case of Campbell & Others v AG op. cit. this Court said referring to the reduction
" ... we take the view that such reduction is in no sense an inflexible rule and the precise deduction in each case must depend upon the circumstances in which the guilty plea came to be made. In some circumstances the evidence will make a guilty plea all but inevitable but in other cases that may not be so."
43. The nature of the evidence adduced by the Crown against this Applicant must be borne in mind. There was evidence that he was the only person during the relevant time who visited the disabled lavatory in the baggage hall. Very shortly after his visit four condoms were recovered from the bin. The condition of these condoms, and other evidence, warranted the conclusion that they had recently been passed anally. Within a short period the Applicant, who was under continuous observation from the time of his arrival in the baggage hall until he entered the public house, was arrested and searched. The search revealed not only a quantity of cocaine sufficient for importation in the condoms previously recovered, but also that the Applicant was carrying a tin of Vaseline on his person.
44. In our judgment quite apart from the admissions made in interview and notwithstanding the lies which the Applicant told, the evidence in this case made a plea of guilty to count 2, and indeed to count 1, "almost inevitable". Certainly the Applicant could not have asserted his innocence with any hope that the Court would have acquitted him. In these circumstances the Court was entitled to deny to the Applicant the full discount.
45. Mrs Pearmain's final submission is that, by contrast with the case of AG-v-Patrick Jersey Unreported [2002/213], the sentence on this Applicant was unduly harsh. The case of Patrick was cited to the Royal Court. It was one in which a sentence of 4½ years' imprisonment was passed. The Commissioner in his sentencing remarks to the Applicant reflected the fact that the Jurats had considered carefully the submissions made in relation to that case. He said:
" ... we are prepared to reduce the conclusions of the Crown particularly in the light of Patrick. We are ... well aware of the dangers of comparing case with case but we are going to reduce this sentence to one of 5 years ..."
46. In making this observation, the Commissioner will have had in mind the observation in Rimmer (op. cit.) where the Court said:
"It is therefore of limited utility to refer to decisions, particularly those of Courts sitting at first instance, which are (or should be) applying those guidelines to the cases before them. Not only do such cases turn substantially on their own facts, the facts themselves available and taken into account by the Court may not always appear on the face of the judgments, and a read across from one set of facts to another is often a vain exercise. Moreover, in the Royal Court of Jersey (and Guernsey) unlike Courts in England and Wales, the Crown has no right to appeal against lenient sentences";
and later:
" ... sentencing is a discretionary exercise in every case and the reports do not include every feature which influenced the Court in exercising its discretion on earlier occasions ... We notice a tendency, particularly in appeals against sentence in drug related cases, to try to calculate the exact effect given by the Court in earlier cases to each factor and then to say that those effects must be reproduced in the case in hand. This is a misleading exercise ... which, if it could be achieved, would be inconsistent with the discretionary nature of the sentencing function ... "
47. As is inevitable, there were some similarities between the case of Patrick and the instant case: there were also some differences. Patrick acted in order to make a profit of £2,200 for himself, the Applicant to reduce a debt of £1,500 to another; Patrick committed the offence on the spur of the moment, the Applicant after mature consideration; Patrick was arrested before he had passed the drugs internally, the Applicant's arrest was delayed; Patrick imported 61.4 grams of cocaine, the Applicant's importation consisted of 55.4 grams; Patrick was assessed to be at low risk of re-offending, the Applicant was considered to be a low to medium risk repeat offender.
48. It is clear that the Royal Court had all these considerations well in mind in deciding on the appropriate sentence.
49. We have considered carefully everything which has been said by Mrs Pearmain. We find nothing to criticise in the sentence imposed by the Royal Court, nor in the chain of reasoning which the Court followed in reaching their decision. We are not persuaded that the sentence of 5 years is one with which we should interfere. The Application is dismissed.
50. We order that the provisions of Art 35 (4) (b) of the Court of Appeal (Jersey) Law 1961 shall not apply.
Authorities
Rutherford: Review of Criminal Justice Policy in Jersey (September 2002).
Rimmer, Lusk and Bade v AG [2001] JLR 373.
Campbell & Others v AG [1995] JLR 136.
AG-v-Patrick (4th November, 2002) Jersey Unreported; [2002/213].
AG-v-Bruton & McGrath (27th April, 2000) Jersey Unreported; [2000/73].
Wright-v-AG (12th July, 1999) Jersey Unreported; [1999/125].
AG -v- Young (1980) JJ 281.
AG -v- Brown (26th April 1985) Jersey Unreported; [1985/41]
AG -v- Clohessy and Roberts (25th January 1989) Jersey Unreported; [1989/16]
AG -v- Fogg (1991) JLR 206 and (1991) JLR 31.
AG -v- Clarkin and Pockett (1991) JLR 213 and (1991) JLR 232.
Campbell and others -v- AG (1995) JLR 136.
AG -v- Buesnel (1996) JLR 265.
Galante -v- AG (8th April 1997) Jersey Unreported; [1997/64] and (1997) JLR N-14.
Morgan and Schlandt -v- AG (2001) JLR 225.
Rimmer and others -v- AG (2001) JLR 373.
Bonnar and Noon -v- AG (2001) JLR 626.
Valler -v- AG (18th July 2002) Jersey Unreported; [2002/133]
Breen and others -v- AG (13th September 2002) Jersey Unreported; [2002/167]