[2004]JCA084
COURT OF APPEAL
13th May, 2004
Before: |
R.C. Southwell, Esq., Q.C., President; P.D. Smith, Esq., Q.C.; and The Rt. Hon. Sir Charles Mantell. |
Darren Maurice Hare (aka Le Cocq)
-v-
The Attorney General
Application of Darren Maurice Hare (aka Le Cocq) for leave to appeal a total sentence of 5 years' imprisonment passed on 12 February, 2004, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 31 October, 2003, on a guilty plea to:
2 counts of: |
possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 5: cannabis (on which count a sentence of 3 months' imprisonment was passed); count 6: heroin (on which count a sentence of 6 months' imprisonment, concurrent was passed); and |
2 counts of: |
possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978: count 2: cannabis (on which count a sentence of 18 months' imprisonment, concurrent, was passed); count 4: ecstasy (on which count a sentence of 5 years' imprisonment, concurrent was passed). |
[The Crown did not proceed with counts 1 and 3 of the indictment].
Leave to appeal was refused by the Deputy Bailiff on 9 March, 2004; and on 10 March, 2004, the applicant exercised his entitlement under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court.
The Appellant on his own behalf;
C.M.M. Yates, Esq., Crown Advocate
JUDGMENT
THE PRESIDENT:
1. Mr Darren Maurice Hare (previously known as Le Cocq) pleaded guilty in the Royal Court on 3 December 2003 to two counts of possession of controlled drugs with intent to supply contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978 (under count 2, cannabis, and under count 4, ecstasy) and two counts of simple possession of controlled drugs contrary to Article 6(1) of the 1978 Law (under count 5, cannabis, and under count 6, heroin). On 12 February 2004 he was sentenced by the Superior Number of the Royal Court to terms of imprisonment as follows:
Count 2 - 18 months
Count 4 - 5 years
Count 5 - 3 months
Count 6 - 6 months
All the terms of imprisonment were to be served concurrently. Thus the total sentence was five years imprisonment. On 12 February 2004 Mr Hare applied for leave to appeal against sentence. On 9 March 2004 leave to appeal was refused by a single Judge of the Court of Appeal. Mr Hare now renews his application to the full Court. As in the Royal Court he represents himself.
2. The background can be summarised quite shortly. Mr Hare is 36 years old. In the afternoon of Sunday 31 August 2003 the Jersey Police executed a warrant at his home in Caesarea Court, St Helier. They made a forced entry. The Police found a rucksack in the living room containing 1,470.40 grams of cannabis and 199 tablets of ecstasy. They also found about 778 milligrams of powder containing heroin in a piece of white plastic, a syringe containing about 200 microlitres of heroin, and a cigarette containing about 58 milligrams of cannabis.
3. The 1,470.40 grams of cannabis had a local street value of about £8,640 and a wholesale value of about £6,000. The 199 ecstasy tablets contained an average of 61 milligrams of MDMA per tablet, and had a local street value of just under £2,000 and a wholesale value of between £1,194 and £1,592. The counts alleging possession with intent to supply (counts 2 and 4) relate to these quantities of drugs.
4. The 778 milligrams of powder contained 17% by weight of heroin, and this had a local street value of between £300 and £400, and a wholesale value of about £200. The counts alleging simple possession (counts 5 and 6) relate to this heroin, to the other small quantity of heroin, and to the cannabis in the cigarette.
5. Hare's girlfriend was the joint occupier of the flat, but Hare explained to the Police that she was not involved.
6. Mr Hare's account to the Police was that the rucksack had been unexpectedly delivered to his flat on Friday 29 August 2003, when he was told to look after it overnight until it was collected the next day. As it was not then collected, he had opened the rucksack on the morning of 31 August 2003 and then become aware of the cannabis in the rucksack, though he had not seen the ecstasy tablets. He was not surprised to discover what he found in the rucksack. He said that the heroin was for his personal use, but denied knowledge and ownership of the cigarette containing cannabis.
7. Clearly the sentences with which this Court is primarily concerned are those on counts 2 and 4, especially count 4.
8. The Crown presented its conclusions to the Royal Court on the footing that Mr Hare was minding the ecstasy and the cannabis for someone else, whom he did not identify. The Crown drew attention to the significance of the essential service performed by a minder for a dealer, who is prepared to trust the minder for a period with substantial amounts of drugs: see Attorney General v Welsh (3 February 2000) Jersey Unreported; [2000/21]; R v Harris (1998) 1 Cr App R (S) 38 in the English Court of Appeal, and Whelan on Aspects of Sentencing in the Superior Courts of Jersey, (2nd Ed'n), page 71, in which the importance of a minder's role was explained.
9. The Crown also took into account the guidance given by this Court in Valler v Attorney General (2002) JLR 383 in circumstances in which more than one type of drugs have to be considered.
10. In accordance with the guideline case of Bonnar and Noon v Attorney General [2001] JLR 626 the starting point for an offence such as this was put at between 7 and 9 years if the quantity of ecstasy tablets is between 1 and 500 tablets. Accordingly, bearing in mind that here 199 ecstasy tablets were being held, that Hare also held 1.47 kilograms of cannabis with intent to supply, and the guidance in Valler, the Crown recommended a starting point for count 4 of 8 years imprisonment, and a discount of 3 years for the available mitigation, leading to a sentence of 5 years imprisonment. The Royal Court decided that this was the appropriate starting point, and the discount for mitigation was also appropriate, and accordingly imposed a sentence of 5 years imprisonment on count 4.
11. Mr Hare bases his application for leave to appeal on these main grounds:
(i) the starting point of 8 years was too high;
(ii) the discount for the mitigation was inadequate;
(iii) the sentence was inconsistently too high when compared with the sentences imposed in Attorney General v Lavin [2003] JRC 197 and other cases to which Mr Hare referred.
We will deal with the matters he put forward under these three heads.
Starting Point
12. As this Court has emphasised in recent guideline drugs cases, especially Rimmer et al v Attorney-General (2001) JLR 373 and Bonnar and Noon (above), the primary considerations, when determining the appropriate starting point in drugs cases such as the present one, are the quantity of drugs and the role of the defendant. Looking at count 4 relating to the ecstasy tablets, the Crown through Crown Advocate Yates correctly pointed to the band of 7-9 years imprisonment for quantities of between 1 and 500 units of ecstasy. 199 units lies near but below the halfway point. If there were no other factors to be considered it might perhaps have been appropriate to take the bottom figure in the band, 7 years. But in accordance with the guidance in Valler this Court has to take into account that Hare was minding 1.47 kilos of cannabis as well as the 199 ecstasy tablets. To take a starting point of less than 8 years would mean that this Court would be going contrary to the guidance in Valler. It follows that this Court concludes that the Crown and the Royal Court adopted the correct starting point in this case.
13. We emphasise that the role of a minder of these quantities of drugs must not be minimised. We have already cited the guidance previously given as to the role of a minder, and in particular the trust which a dealer has to place in the minder to keep the drugs safely and undiminished in quantity while in the minder's charge. Mr Hare indicated that, though he knew that he was minding a substantial quantity of cannabis, he did not know that he was minding the ecstasy tablets. But as this Court has made clear on many occasions, neither a mistaken belief as to the nature of the drugs in the offender's possession, nor (as here) ignorance of the full extent of the drugs, goes to reduce sentence. Those who take drugs into their possession with intent to supply are and must be sentenced on the basis of the actual drugs and the actual quantities.
14. Mr Hare places some reliance on the case of Lavin, to which we will return later. It suffices here to point out that the quantities of cannabis and ecstasy in Mr Lavin's possession were substantially greater, and accordingly a starting point of 12 years (or a period 50% longer than in the present case) was taken in the case of Lavin.
Mitigation
15. Mr Hare is entitled to rely on a number of mitigating factors, and we will deal with these in turn.
16. He pleaded guilty, and he is entitled to a suitable discount for this plea. Because he was found in possession, and because the quantities of the drugs were such that a defence that they were solely for his own use could not seriously have been run, it would not be appropriate to take a discount of as much as one-third. But in this case one-quarter would be appropriate.
17. His record of previous convictions is long and very serious. It is true that the only drug convictions were in September 2001 for supplying and possessing controlled drugs for which the Royal Court sentenced him to a total of 2 years imprisonment. But before that his record of over 130 convictions for offences including burglary, theft, criminal damage, forgery, assault on the police, escaping from lawful custody, grave and criminal assault, arson and security fraud is a noteworthy record. No mitigation can be derived from such an appalling record of criminal anti-social behaviour.
18. Mr Hare experienced an episode of sexual abuse in childhood at the age of about 7 years by a person outside his family, to which he attributes his substance abuse and pattern of offending from adolescence onwards. While he was in Broadmoor Hospital in the 1990s he received beneficial counselling about this. Some degree of mitigation should be given for this, but a man 36 years old must be expected now to try to put that episode behind him as far as he can.
19. His habits of substance abuse appear to have started with cannabis, LSD and alcohol from the age of 11 onwards. By the age of 16 he seems to have been drinking up to a litre of spirits a day as well as his drug abuse. In the period from about 2000 he became addicted to heroin, largely replacing his addiction to alcohol, and clearly was using it when convicted in 2001 and when arrested in August 2003. It appears that he has been off heroin while in prison since October 2003 (in this one respect the psychiatric report of Dr Dunkley seems to be in error). But in view of his past record of substance abuse, there must be doubt whether he could remain off heroin once released from prison, unless (i) he remained away from friends who are addicted, and (ii) he would be prepared to make the great efforts required to keep off heroin.
20. He has been treated for a long time for mental problems which led in 1994 to his admission to Broadmoor Hospital. It seems likely that these mental problems have stemmed at least in part from his years of substance abuse. We have before us two psychiatric reports. The first, dated 25 November 2003, was from Dr Clare Dunkley, consultant forensic psychiatrist, who unfortunately did not have the opportunity to interview Mr Hare, but who was able to provide the Courts with a clear and most helpful historical account of Hare's mental problems. By the 1990s it appears that he had begun to present with aggressive and paranoid thoughts towards those in authority, in particular policemen and prison officers. In December 1994 he was admitted to Broadmoor Hospital under the diagnosis of psychopathic disorder, following conviction on two charges of assault. While at Broadmoor he began to develop psychotic symptoms and was treated with anti-psychotic medication with some success. He returned in 1997 to hospital in Jersey and then into the Jersey community. Between that time and the end of 2000 he had to be treated for paranoid ideation, angry and violent thoughts, and depression. New medication from mid-1999 brought a noted improvement, provided that he took his medication, and subject to his recurrent depression. During this period between 1997 and 2000 his only offences were social security frauds for which he was bound over on 25 October 1999 by the Jersey Magistrates Court. But by May 2001 his heroin dependence had become a major problem and he told those monitoring him that he had a firearm and had thoughts of harming others: it is not clear whether this was real, or a fantasy. He was convicted of supplying and possessing heroin and sentenced to 2 years imprisonment on 7 September 2001. In April 2002 his mental state deteriorated and he again required transfer to a medium secure hospital in England. In March/April 2003 he returned to the Jersey psychiatric unit and then to the community.
21. Dr Dunkley noted that Mr Hare remains willing to take the anti-psychotic medication while in custody, and that "this appears to offer some protective effect with regard to the paranoid thoughts and auditory hallucinations which he has described previously". She concluded that, provided he continues to comply with oral anti-psychotic and anti-depressant medication it would be appropriate for him to remain in prison. But if his mental state were to deteriorate, consideration would need to be given to his transfer again to medium secure hospital accommodation in England.
22. The second report, dated 1 May 2004, is from Dr Mark Cox, consultant psychiatrist, who has treated Mr Hare at Jersey General Hospital between 1999 and 2004, who has reviewed Hare's condition in HM Prison La Moye as Prison Consultant Psychiatrist, and who has therefore seen Hare very recently. The Court wishes to express its strong thanks to Dr Cox for preparing this report at short notice at the Court's request. Dr Cox confirms both the background set out by Dr Dunkley and her conclusions. His up-to-date conclusion is that Mr Hare is currently well, and wishes to serve his sentence in prison, which will present no difficulty while Hare is well; any future relapse into a psychotic illness not adequately controlled with medication would require transfer to a medium secure hospital setting.
23. We have dealt with the history and current diagnosis of Mr Hare's mental problems at some length, for three reasons: (i) because this is an important factor in the background to the long pattern of his criminal and anti-social behaviour; (ii) because it is also a factor to be taken into account when considering the mitigation available to him; and (iii) because it was taken into account by the Royal Court when sentencing him (though referred to more succinctly by that Court).
24. Mr Hare has been in a relationship with a woman who has a 3 year old son, and who has herself been in prison following conviction for a drug offence. She has written a moving letter in support of Mr Hare. She is released on the Temporary Release Monitoring Scheme, but it is a condition of her order that she is not allowed to visit prisoners. She also has Hepatitis C, a condition which is not responding to drug treatment. Naturally his concerns for her welfare cause him upset while he is in prison, but this is an inevitable and unfortunate consequence of his offending. He also has a daughter aged 18 years from a previous relationship, who because of his return to drug abuse told him that she did not wish to see him again.
25. Mr Hare has set out the factors which he wishes to be taken into account as mitigation with some measure of ability as an applicant representing himself. We have tried above to set out those matters which the Courts of Jersey can properly take into account as mitigating factors.
26. Our conclusion on mitigation is twofold: (i) the Royal Court took into account the factors which we have described at greater length; and (ii) the Royal Court correctly allowed 3 years discount for those factors, resulting in an appropriate total sentence of 5 years' imprisonment.
Other Cases
27. Finally we must refer to the case of Lavin (above) and other authorities on which Mr Hare relied. As this Court has repeatedly emphasised, reference to other cases and other sentences is inappropriate unless there are principles or guidelines to be derived from those cases. The facts, and especially the mitigating factors, vary infinitely from case to case. The Lavin case involves no matter of principle or guideline. The quantities of cannabis and ecstasy were substantially larger, leading to a starting point of 12 years. Mitigation seems to have been stronger than in the present case, leading to a discount of 5 years and a total sentence of 7 years imprisonment. There is nothing in the Lavin case which assists Mr Hare.
28. The other authorities to which he referred also do not assist Mr Hare. These were Attorney General v Peacock [2003] JRC032, McCarthy v Attorney General [2003] JCA157, and Welsh v Attorney General (2002) JCA 72, copies of which Crown Advocate Yates provided to the Court. In each of these cases the facts relating to the offences were different, as were the facts relating to mitigation: comparison with those cases does not assist in deciding what is the appropriate sentence in Mr Hare's case. The only point of principle which is of relevance to Mr Hare's case is in the discussion in Welsh, in paragraph 15, of the essential role of a minder of illegal drugs in ensuring that the drugs reach their intended market.
29. Accordingly this Court refuses Mr Hare leave to appeal. [The Court makes a direction under Article 35(4) of the Court of Appeal (Jersey) Law 1961 as to the full period of six weeks.]
Authorities.
AG v Welsh (3rd February 2000) Jersey Unreported; [2000/21]
Welsh-v-AG (4th April, 2002) Jersey Unreported; [2002/72]
Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2nd Edition): pp. 66-73
Valler v AG (2002) JLR 383
Bonnar & Noon v AG [2001] JLR 626
AG v Buesnel (1996) JLR 265
Campbell and Others v AG (1995) JLR 136
Wright v AG (12th July 1999) Jersey Unreported; [1999/125].
AG-v-Peacock [2003]JRC032.
AG-v-McCarthy [2003]JRC107
McCarthy-v-AG [2003]JCA157.
R v Harris (1998) 1 Cr App R (S) 38.
Rimmer et al v Attorney General (2001) JLR 373.
Court of Appeal (Jersey) Law 1961: Article 35(4).