Jersey Unreported Judgments

[2003]JCA156

COURT OF APPEAL

                                                            10^th September, 2003.

Mohammed SHAHNOWAZ

-v-

The Attorney General

Application for leave to appeal against a total sentence of 3½ years' imprisonment, passed on 14th July, 2003, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 7th April, 2003, on a guilty plea to:

[On 21st February, 2003, the Crown accepted a plea of not guilty to count 4 of the indictment and did not proceed with count 1; counts 5 and 6 relate to a co-defendant who has not appealed.]

The Application for leave to appeal placed directly before the plenary Court without first being submitted to a Single Judge for consideration/determination.

Advocate A.J.D. Winchester for the Appellant;

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

JUDGMENT

sumption ja:

1.        On 22 November 2002, Mohammed Shahnowaz was caught in a car park in St Helier in the act of supplying heroin from his car.  When he and his customer and passenger were arrested, he was found to be holding a sandwich bag between his thighs containing eleven bags of heroin weighing 7.7 grams, with a street value between £2,487 and £3,730.  A small bag of cocaine with a street value of £80 was found in his car where he had been sitting.  On 21 February, 2003, Shahnowaz pleaded guilty in the Royal Court to one count of possession of the heroin with intent to supply, and one count of simple possession of the cocaine.  He was remanded for sentence by the Superior Number.  On 14 July, 2003, he was sentenced to 3½ years' imprisonment on the former count and 3 months concurrent on the latter.  He now appeals against these sentences on the ground that the total period of imprisonment, 3½ years, was manifestly excessive.

2.        The basis on which the Royal Court arrived at the sentence was as follows.  In Rimmer, Lusk and Bade (2001), this Court gave guidelines for sentencing in cases of heroin, cocaine and other Class A drugs.  The lowest sentencing band, for quantities of 1-20 grams, called for a starting point of 7-9 years.  The Royal Court took a starting point of eight years, on the basis that this was within the range, and that Shahnowaz was engaged in commercial drug trafficking as a retail distributor.  They concluded that he was engaged in commercial drug trafficking as a retail distributor because he was able to keep himself in spite of having had only part-time employment for the past eighteen months, adding that "this is also indicated by the confiscation order which we have made."  The eight years' starting point was reduced by 2 years (25%) for the plea of guilty, and by a further 2½ years (32%) because Shahnowaz had co-operated with the police to the extent of naming his supplier, and had authorised his Counsel to reveal that fact in open court.  The Bailiff said that these reductions took account of other mitigation factors set out in the probation report and Counsel's address, but plainly regarded them as minor.

3.        Advocate Winchester, who appeared for Mr. Shahnowaz, has made three criticisms of the sentence:  (i) that the starting point should have been seven years rather than eight; (ii) that more credit should have been given for co-operation with the police; and (iii) that insufficient regard was had to other mitigating factors.  In our judgment there is no substance in any of these points.

4.        The starting point was exactly in the middle of the Rimmer range of sentences, for a weight of heroin slightly below the middle of the weight bracket.  This was very much a matter of impression for the sentencing court, and was fully justified by the reason which they gave, namely that Shahnowaz was a commercial drug trafficker.  It was suggested to us that the Bailiff was wrong to rely on the confiscation order in support of the conclusion that he was a commercial trafficker, because confiscation did not need to be justified by evidence satisfying the criminal burden of proof.  It is, however, clear from the Bailiff's sentencing remarks that he regarded the confiscation order as confirming a finding that was made on another ground, namely Shahnowaz's lack of other visible means of support.  He would have been entitled to add that the circumstances of Shahnowaz's arrest themselves clearly pointed to commercial trafficking at a retail level.

5.        We see no reason to disagree with the discount given for co-operation with the police.  The Royal Court has in the past given a range of discounts for this factor, according to the value of the assistance.  Since there are few maters as specific to the particular facts as this one, we do not think that comparison with other cases helps.  Having said that, it is right to add that as a proportion of the sentence that would otherwise have been imposed, the discount allowed in this case was at the upper end of the historic scale.

6.        Turning to the other mitigation, it did not amount to much.  Shahnowaz is 29 years old, and no callow youth.  He has expressed remorse, which is not uncommon among those who have been convicted of offences but, so far as it goes has been taken into account by the Court.  He has a criminal record, but not for drug offences, a mitigating factor which is entitled to some but not very much weight in the case of a man who was rightly found to have been a commercial dealer.

7.        Looking at the matter in the round, the striking facts about this case are that Shahnowaz received a 25% discount for a guilty plea in a case where he was caught red-handed and hardly in a position to deny his guilt; and a handsome reduction for his assistance.  The resulting sentence was less than half the starting point, and a year less than the proposal made in the Crown's conclusion.  In our judgment, Shahnowaz could not possibly have received a lesser sentence than he did.

8.        The appeal will be dismissed.

Authorities.

Rimmer, Lusk & Bade v Attorney General (2001) JLR 373

Campbell & Others v Attorney General (1995) JLR 136

Attorney General v Se & Others (2 May 1996) Jersey Unreported

Attorney General v Jones and another (6 June 1996) Jersey Unreported

Attorney General v Kenward (6 March 2000) Jersey Unreported; [2000/42]

Attorney General v Le Pavoux & Baumgartner [2003]JRC075