Jersey Unreported Judgments

[2004]JCA008

COURT OF APPEAL

 

                                                              14^th January, 2004.

 

 

William John Menzies PRENTICE

-v-

The Attorney General

 

Application of William John Menzies PRENTICE for leave to appeal against a sentence of 5½ years' imprisonment passed on 16th October, 2003, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 1st August, 2003, on a guilty plea to:

 

1 count of:	possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 1:  cannabis resin (on which count a sentence of 7 days' imprisonment was passed).
1 count of	being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: count 2:  cannabis resin (on which count a sentence of 5 ½ years' imprisonment, concurrent, was passed)

 

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

 

 

Advocate J. Bell for the Appellant;

Advocate B.H. Lacey, Crown Advocate.

 

 

JUDGMENT

 

THE PRESIDENT:

1.        This is the judgment of the Court.  On 16 October 2003 the Superior Number of the Royal Court sentenced the Applicant to imprisonment for five years and six months on a count of being concerned in the supply of drugs contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (hereinafter "the 1978 Law").  The Applicant pleaded guilty to that charge.  He applies for leave to appeal against the sentence.

The circumstances of the offence

2.        On 3 February 2003 customs officers in Jersey acting on information received inspected a delivery van belonging to Breakwell's Freight Company Limited, a company based in Kidderminster, and identified certain consignments in the van including two boxes which were described as stationery on the company's manifest.  The named consignor of the package had an address in Glasgow and the consignee was Good Moves Limited, a Jersey removals business.  The customs officers allowed the packages to be delivered to Good Moves Limited and, having obtained a search warrant, entered the premises of Good Moves Limited.  They ascertained that Good Moves Limited had handled two previous importations on behalf of a Mr Stevens and an export on behalf of the Applicant.  They removed the two boxes which measured 12" by 12" by 18" and discovered that they contained a number of bars of cannabis.  The cannabis in total weighed 23.488 kilograms and had a wholesale value £96,000 and a street value of £138,240.

3.        The customs officers substituted bars for the cannabis bars and packaged them in the boxes, placing a mobile phone as a tracking device in one of the boxes.  They returned the boxes to Good Moves Limited and maintained observation.  On the next day, the Applicant arrived in Jersey on a flight from Glasgow.  At about 9 am on 5 February an employee of Good Moves Limited received a telephone call from a man who called himself Mr Stevens who stated that he was expecting the delivery of some packages.   Thereafter customs officers observed three men place the boxes in a Good Moves vehicle which was thereafter observed driving to Clark Avenue.  At about the same time the Applicant was observed leaving the house in which he was staying and driving in a red Honda motor car to Clark Avenue.  The Good Moves vehicle parked beside the Honda car and the officers observed the Applicant place something in the boot of the Honda car.  Thereafter both the vehicle and the car drove off.  The delivery was irregular in that the parties did not sign any delivery documentation.

4.        Officers then observed the Applicant return to the house where he was staying, remove the two boxes from the car and carry them into the house.  At about 9.30 am police officers entered the house and discovered the Applicant in the hall with a mobile phone to his ear.  On observing the officers, the Applicant dropped the mobile phone.  The officers arrested him on suspicion of being concerned with the importation of a controlled drug.  They recovered the boxes and also found on the hall floor the mobile phone which had been placed in one of the boxes.  Police also found a small amount of cannabis resin, with which we are not concerned in this application, in the Applicant's bedroom in the house.  On interview the Applicant admitted possession of the small amount of cannabis but replied "no comment' to other questions.  He was charged with being concerned with the importation of cannabis resin and he reserved his plea.  He appeared in the Magistrate's Court on 6 February 2003 and was remanded in custody.

The delay in the proceedings

5.        As we have stated, the Applicant was charged initially with being knowingly concerned in the importation of controlled drugs, which is a contravention of Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. 

6.        On 13 March 2003 he participated in an identity parade at which three witnesses did not identify him.

7.        On 3 April 2003 the authorities changed his charge by substituting the charge of possession of drugs with intent to supply contrary to Article 6(2) of the 1978 Act.  He pleaded guilty and was remanded in custody for sentencing on 30 June.  As a result of a breakdown of trust between the Applicant and his advocate sentencing was adjourned until 16 July 2003.  At that hearing, Advocate Bell for the Applicant, correctly in our view, indicated that the Applicant sought to change his plea and obtained an adjournment of the case to 1 August.   After communications with the Crown, on 1 August the Applicant applied successfully to enter a plea of not guilty to the charge and then pleaded guilty to the substituted charge with which we are concerned.  As we have said, the Applicant was ultimately sentenced on 16 October, some eight months after his initial detention.

The submissions in support of the application

8.        Advocate Bell supported his application for leave to appeal with the following arguments.  First, he submitted that the Royal Court erred in applying a starting point and then discounting from that starting point for the guilty plea and mitigation.  Secondly, he submitted that the Royal Court had erred in determining the extent of the Applicant's knowledge and involvement in the supply of the cannabis resin.  Thirdly, he submitted that the Royal Court erred in that it did not allow any, or in any event sufficient, discount for mitigation, arguing that (a) the length of the proceedings, (b) his limited prior criminal record for minor offences, (c) his good work record and supportive references and (d) his history of depression which caused him to turn to alcohol or cannabis for relief and his naïve and unsophisticated nature amounted to significant mitigation, which the Court had not recognised.

9.        Advocate Bell also pointed out that the Crown Advocate had submitted in his conclusions that the Applicant should have a starting point of eight years and that he was entitled to a full one-third discount for his guilty plea yet had moved for the sentence which the Royal Court pronounced.  The Royal Court expressly accepted the Crown's conclusions, including the starting point, and sentenced the Applicant to five and a half years.  This was less than the one-third discount to which the Crown referred (which would have resulted in a sentence of five years and four months) and, on the Crown's approach, gave no allowance for mitigation other than for the guilty plea.  He suggested that a sentence of about four years would have been appropriate.

The Crown's reply

10.      In response, Advocate Lacey for the Crown, submitted that the Royal Court had expressly not applied the guidelines in Campbell v Attorney General [1995] JLR 136 but had assessed the role of the Applicant in the particular importation.  The dealer in the drugs had entrusted the Applicant with a very valuable consignment and the Applicant's involvement if successful would have enabled the dealer to import the drugs to the Island while keeping the dealer at one remove from the uplifting of the consignment.  The starting point of eight years was therefore appropriate. 

11.      In relation to mitigation, Advocate Lacey submitted that the allowance of a discount for a guilty plea and mitigation was not a precise science and that it had been the Crown's intention that the one-third discount which it proposed would include both the guilty plea and the mitigating circumstances.  She submitted that in the circumstances the guilty plea did not merit the full one-third discount which was reserved for an immediate, full and frank disclosure which benefited the prosecuting authorities who otherwise might have had difficulty in establishing guilt.  The Royal Court's sentence was consistent with proper allowance for both the guilty plea and all the factors of mitigation.  The sentence was not manifestly excessive.

Decision

12.      Although we were very impressed with Advocate Bell's skilful and determined advocacy on behalf of the Applicant, we are satisfied that the Royal Court did not err in law and that it imposed a sentence which is not manifestly excessive. We deal in turn with each of his submissions.

13.      The use of a starting point: We recognise the force of the reasoning in McDonough v Attorney General (28^th September 1994) Jersey Unreported, Attorney General v Antunes [2003]JRC072 and Le Pavoux v Attorney General [2003]JCA127 that offences of being concerned with the supply of drugs cover such a wide range of conduct that it is not appropriate to apply the sentence guideline cases such as Campbell v Attorney General [1995]JLR136.  But the Royal Court did not do so.  Instead, the Court assessed the nature of the Applicant's involvement in the intended supply of cannabis and agreed with the Crown's suggestion of a starting point of eight years.  We see no error in law in the Court fixing a starting point in this context.  So to do makes public the court's assessment of the appropriate sentence for the offence in the absence of mitigation and also the extent to which the Court has allowed for mitigating circumstances.

14.      The Applicant's knowledge and involvement in the supply of the cannabis resin: Advocate Bell reminded this Court that the basis of his client's guilty plea was set out in a fax dated 31 July 2003 in which he stated:

"(1) my client had been persuaded by another person to take custody of the boxes with a view to handing them back to that same person later the same day;

(2) my client did not have express knowledge that the boxes contained drugs;

(3) my client did have a suspicion that the boxes contained drugs;

(4) my client did not have knowledge as to the quantity of drugs in the boxes."

We must have regard to the basis on which the Applicant tendered his plea.  At the same time the Court requires to take account of the information given to the Royal Court, in for example the defence speech and the probation service report, which puts flesh on these skeletal statements.  Thus the persuasion referred to in point (1) was a sum of money to pay off drug debts which would be earned if the Applicant flew to Jersey to perform an unspecified job for the other person.  He had come to the Island for that purpose among others.  Points (2) and (3) require to be assessed against the background of the Applicant's use of a false name and his arrangement for the delivery of the boxes not at the house where he was residing but in the street.  In the circumstances, his suspicions that he was handling controlled drugs must have amounted to near certainty.  While he may not have known of the quantity of the drugs, he would have had a clear idea of the weight of the boxes and he was in fact fortunate that the boxes contained only a Class B drug.  Had the consignment involved class A drugs he would have been exposed to a more severe sentence.  In summary we do not consider his involvement to be any less culpable than that of a courier carrying a similar amount of drugs.  We therefore do not see the eight-year starting point as excessive.

15.      The guilty plea and the mitigating factors:  We do not consider that the guilty plea merited the full one-third discount.  While the Crown accepted that the plea was a valuable one, there was strong evidence linking the Applicant to the intended supply of the drugs.  We refer in particular to the timing of his arrival in Jersey, his use of a false name in a telephone call to Good Moves Limited, the observations of the irregular delivery of the boxes to him in the open in Clark Avenue and his apprehension in the house where he was residing where he was found in possession of the two boxes, one of which was partially opened.  In relation to mitigation, we consider that the matters to which Advocate Bell referred are all available as mitigating factors.  It is unfortunate that the Crown may have misstated its position to the Royal Court in its conclusions and that the Royal Court did not make it clear that it was not giving a one-third discount for the guilty plea and further consideration for mitigating factors.  Nevertheless we consider the sentence of five and a half years to be appropriate having taken account of both the guilty plea and the mitigating factors.   

16.      It is particularly unfortunate that a young man with a good employment record and who enjoys the support of his former employers and his family should have placed himself in this predicament.  But we are not satisfied that the sentence is manifestly excessive.  We therefore refuse leave to appeal.

Authorities.

AG-v-McDonough (25^th July, 1994) Jersey Unreported.

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

AG-v-Antunes, Saraiva, and Viveiros [2003]JRC072.

AG-v-Antunes, Saraiva, and Viveiros [2003]JRC074.

Le Pavoux-v-AG [2003]JCA127.

Baglin-v-AG [2003]JCA082.