Jersey Unreported Judgments

 [2003]JCA125

court of appeal

 

18^th July, 2003.

 

 

Paul Anthony GREEN

-v-

The Attorney General

 

Application of Paul Anthony GREEN for leave to appeal against a sentence of 6 years' imprisonment passed on him on 16th December, 2002, by the Superior Number of the Royal Court, to which he was remanded by the Inferior Number on 22nd November, 2002, following 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 (Jersey) Law, 1999: count 2:  diamorphine

 

Leave to appeal was refused by the Deputy Bailiff on 24th January, 2003; and on 5th February, 2003, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew his application to the plenary Court.

 

[On 3rd February, the co-appellant, Barry Edward AKERS, abandoned his application for leave to appeal].

 

Advocate R. Juste for the appellant;

Advocate M. R. Renouf, convened as amicus curiae to assist Court in relation to provisions of Article 35 of the Court of Appeal (Jersey) Law, 1961;

C.E. Whelan, Esq., Crown Advocate.

 

 

JUDGMENT

 

 

BELOFF JA:

1.        This is the judgment of the Court.

2.        This is an application for leave to appeal by the Applicant, Mr Paul Anthony Green, against sentence of six years imprisonment for an offence on one count of the fraudulent evasion of the prohibition on the importation of a controlled drug namely diamorphine or heroin.

The procedural history.

3.        On 2nd August 2002, the Applicant together with his co-defendant, Barry Akers, appeared before the Magistrates' Court to be charged.

4.        On that occasion the Applicant reserved his plea to the charge.

5.        The Applicant was then remanded in custody until 30th August 2002.  On that occasion, the Applicant pleaded guilty to the charge.

6.        On 20th September 2002, both Defendants were committed to the Royal Court, by paper committal.

7.        On 22nd November 2002, the Applicant and his Co-Defendant were indicted.  The Applicant maintained his guilty plea to the sole count with which he was charged, namely Count 3.  His Co-Defendant entered a guilty plea to two other Counts namely 1 and 2.

8.        The two Defendants were remanded in custody to be sentenced by the Superior Number of the Royal Court.

9.        On 16th December 2002, the Applicant was sentenced, by the Royal Court, to six years' imprisonment.  [He was also made the subject of a confiscation order in the sum of £182.02.]  Mr Akers was sentenced to seven years' imprisonment.

10.      On 22nd December 2002, the Applicant filed a Notice of Application for leave to Appeal against Sentence on the basis that it was "manifestly excessive".  Mr Akers also filed a similar Notice, but on 3rd February 2003 he abandoned his appeal.

11.      On 24th January 2003, the Deputy Bailiff refused leave to appeal.

12.      On 5th February 2003, the Applicant filed a Renewal of his Application for leave to appeal to this Court.  This delay is explained by the fact that the Applicant changed his counsel.  No point is taken, however, by the Attorney General as to time.

Applicant's Contentions

13.      The Applicant contends that his sentence of 6 years' imprisonment was manifestly excessive.  The Applicant takes no issue with the confiscation order.

14.      The facts which formed the basis of sentencing are as follows.

15.      Customs and Police officers were deployed in Gloucester Street, St. Helier, on 1st August 2002.  At approximately 10:50 am a man, now known to be the Applicant, was observed standing outside the Sandringham Hotel in possession of a suitcase.  A car was subsequently seen to pull up on the pavement outside the hotel.  A brief conversation was seen to take place between the driver, now known to be Mr Akers, and the Applicant, before the driver then placed the suitcase in the boot of the car.  Both men were then arrested and searched.  The Applicant, who had recently arrived in the Island, admitted that he had two packages concealed internally.  The packages were subsequently recovered and found to contain approximately 107 grams of heroin, whose street value is a maximum of £48,519.

16.      The Superior Number adopted a starting point of 10 years in respect of the Applicant (by reference to Campbell, Molloy and MacKenzie -v- The Attorney General [1995] JLR 136; and Rimmer, Lusk and Bade -v- The Attorney General [2001] JLR 373).  The Applicant takes no issue with the starting point, which appears to us to be appropriate.

17.      The Applicant, however, contends that the Superior Number did not attach sufficient weight to the mitigation available to the Applicant.

18.      The following factors were advanced before the Superior Number, essentially accepted and endorsed by the Crown, and are repeated before us:

(i)        The Applicant's age: he was 22 years old at the time of the offence;

(ii)       His lack of previous convictions for drugs or indeed involvement in the world of drugs although it is accepted that he has a criminal record of offences against person and property;

(iii)      His guilty plea and his co-operation - he produced the drugs voluntarily when questioned;

(iv)      The background to the offences, which occurred as a result of trying to help a younger brother Joseph who was in debt to, and in consequence in the clutches of drug dealers (although not in connection with a drugs related matter) and the consequent campaign of harassment of the family, including threats of violence, the reality of which was demonstrated by an actual assault on Joseph;

(v)       The matters contained in the Social Enquiry Report - his subjection to paternal violence, the breakdown of his relationship with his girlfriend;

(vi)      The difference in involvement of the two Co-Defendants, the Applicant's being the lesser.

19.      Advocate Juste also relies on two letters, one from the Applicant, which we are invited by both counsel to accept did not reach the Royal Court, and one from his mother, which was only available after sentencing.  We have taken both letters into account. In essence they repeat matters already known to, and had regard to by the Royal Court, although we acknowledge that, in Advocate Juste's phrase, "they put flesh on the bones".  The Applicant also says that he was himself the object of an attempted abduction - a fact of which the Royal Court was unaware.

20.      Passing sentence, the Superior Number said this:

 "Green was clearly acting as a courier and not as an organiser.  He claims, and we accept it, that he was carrying the drugs to help his younger brother and not for financial gain, so that the debt of his brother would be cancelled.  Green had been given careful directions before he travelled to Jersey from Birmingham.  On the information supplied to us by the Crown Advocate it is clear that Green was a cog in an extremely well organised scheme which would have succeeded had it not been for the vigilance of local police and customs officers, who are to be recommended for there professionalism.  At the end of the day this Court has some sympathy for Green, but, had this run succeeded, a large amount of this pernicious drug would have come onto the island.  We have listened most carefully to the cogent arguments of both counsel.  We agree that there is naivety on the part of both accused, for, as Advocate James has said, Akers put his name and address on each of the packages.  Both accused were gullible and each has mitigation to advance.  The Court has given careful consideration to the matter but feels that the conclusions of the Crown, both as regards the starting point and the conclusions, are right.  We feel that all the mitigating factors have been fully allowed for by the Crown and therefore Green, you are sentenced to six years' and Akers to seven years' imprisonment.  The drugs will be forfeited and destroyed".

21.      The Applicant contends that his then Defence Counsel did not go into sufficient detail about the background to the commission of the offences.  In particular the Superior Number was not made aware that  the Applicant saw himself as a father figure to his younger siblings (in the absence of their natural father), and that he gave particular assistance to his mother in respect of his youngest brother Samuel who suffered learning difficulties.

22.      On careful consideration of the transcript and Social Enquiry Report, we find that this general argument cannot be substantiated, because the Royal Court was sufficiently aware of the background. 

23.      In written submissions Advocate Juste stressed the contrast between the two cases of the Applicant and Mr Akers.  While we appreciate that the Applicant might subjectively have felt that he was given an inadequate discount for his mitigation compared with his co-accused, in oral argument Advocate Juste conceded that objectively the Applicant's case had to be advanced in absolute, not comparative terms.  In this context she noted that:

(i)        The Applicant pleaded guilty at an early stage.  We find this to be of less weight given that he had drugs concealed on his person which would undermine any defence.

(ii)       The Applicant was co-operative at interview.  We make the same point.  The Applicant's co-operation was in effect compelled.

24.      Advocate Juste also put great emphasis on the Applicant's youth.  We accept that a young man will be expected to have less experience of the way of the world, and be more susceptible to making ill-advised choices than a mature man.  However, we bear in mind the observation of Lord Bingham LCJ in Attorney General's Reference No. 26 and 27 of 1996 (1997) 1 Cr. App. R(S) 243, that age and normal mitigation can play but a limited part when sentencing young offenders for serious crime (see further Jason Law (1998) 2 Cr. App. R(s): 366 at p. 361).  We also accept that the Applicant acted out of a combination of care for his unfortunate brother and surrender to serious threats to his family.  But this Court has consistently declined to allow any real weight to threats as mitigation: see the cases referred to at paragraphs 324-328 in Mr Whelan's useful compendium "Aspects of Sentencing in the Superior Courts of Jersey", (2nd edition).  We see no reason to dissent from the observations of the Royal Court in AG v McMahon (27^th April, 2000) Jersey Unreported; [2000/74] even when the threats do not arise directly out of use of drugs, "Some minimal mitigation is available in most circumstances, but it is not considerable."  To allow any greater weight would be to invite every potential drug dealer to threaten every potential mule.

25.      This is a sad case, as the Royal Court recognised in expressing sympathy for the Applicant.  But they had the core of his case properly deployed before them: that which is new before this Court would not, in our judgment, have tilted the scales.  The Royal Court did make substantial allowance for mitigation.  We cannot find the sentence imposed to be manifestly excessive, young though the Applicant was.  We remind ourselves of what was said by this Court in Campbell & Mackenzie v AG [1995] JLR 136: "Sadly the lives which are blighted by the abuse of drugs are usually young lives".  Advocate Juste has said all that could be said on her client's behalf, but this application for leave to appeal is dismissed.  We give, however, the appropriate direction as we indicated under Article 35(4)(b).

Authorities

Court of Appeal (Jersey) Law 1961: Article 35(4).

Campbell, Molloy and MacKenzie -v- AG (1995) JLR 136. CofA.

Rimmer Lusk and Bade -v- AG (2001) JLR 373.

Breen, Croke, Crook, Buckley -v- AG (13^th September 2002) Jersey Unreported; [2002/167]

Attorney General 's Reference No.26 and 27 of 1996 (1997) 1 Cr. App. R (s) 243.

Jason Law (1998) 2 Cr.App.R. (S) 366 at 361.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edition): pp.324-8; 19-21; 37-40.

AG -v- McMahon (27^th April 2000) Jersey Unreported; [2000/74].