[2004]JCA123
COURT OF APPEAL
15th July, 2004.
Before: |
R.C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey; and C.S.C.S. Clarke, Esq., Q.C. |
Francis McFarland
-v-
The Attorney General
Applications for an extension of time within which to apply for leave to appeal and for leave to appeal against a total sentence of 4 years' imprisonment passed on 6th January, 2004, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 31st October, 2003, on a guilty plea to:
1 count of: |
supplying controlled drugs, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978: count 10: cannabis (on which count a sentence of 3 months' imprisonment was passed); |
1 count of: |
as occupier of premises, permitting smoking of cannabis, cannabis resin, or prepared opium, contrary to Article 9(c) of the Misuse of Drugs (Jersey) Law, 1978. (Count 11, on which count a sentence of 3 months' imprisonment, concurrent was passed); |
3 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 13: amphetamine sulphate (on which count a sentence of 12 months' imprisonment, concurrent, was passed); count 15: cannabis (on which count a sentence of 3 months' imprisonment, concurrent was passed); count 17: ecstasy (on which count a sentence of 4 years' imprisonment, concurrent, was passed; and |
1 count of: |
possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 14: cannabis (on which count a sentence of 6 months' imprisonment, concurrent, was passed). |
[On 31st October, 2003, the Crown accepted not guilty pleas to counts 12 and 16 of the indictment; the remaining counts were laid against co-defendants who have not appealed].
Leave to appeal was refused by the Deputy Bailiff on 1st June, 2004; and on 3rd June, 2004, the appellant 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
Clarke JA:
1. Francis McFarland applies for leave to appeal against the sentence imposed upon him by the Superior Number of the Royal Court on 6th January 2004. This application was first made on 11th March 2004 and is, accordingly out of time. Mr McFarland applies for an extension of time.
2. Mr McFarland had pleaded guilty to six counts of an indictment upon which he was charged together with 2 others, Andrew John Jones and William Stanley Pinkowski. The counts in question and the sentences of imprisonment imposed were as follows:
(a) |
Count 10 |
supplying cannabis |
3 months |
(b) |
Count 11 |
permitting cannabis to be smoked |
3 months |
(c) |
Count 13 |
possession of 136.46 grams of amphetamine sulphate with intent to supply |
12 months |
(d) |
Count 14 |
possession of 257.87 grams of cannabis resin |
6 months |
(e) |
Count 15 |
possession of cannabis with intent to supply |
3 months |
(f) |
Count 17 |
possessing 50 Ecstasy tablets with intent to supply |
4 years |
All of these sentences were ordered to run concurrently, so that the total sentence of imprisonment that Mr McFarland was required to serve was 4 years. The sentences imposed were those for which the Crown had concluded. Leave to appeal was refused by the Deputy Bailiff on 4th June 2004. As is apparent the most significant offence was count 17, the count of possessing ecstasy, a Class A drug, with intent to supply, and it is on that offence that we propose to concentrate.
The facts
3. On 1st August 2003 officers of the drug squad executed a warrant at an address in St Clement. Mr McFarland and one of his co defendants, Andrew Jones, were standing in the kitchen. When asked if there were any controlled drugs on the premises, Mr McFarland replied "not that I know of". As a result of the search the police discovered 50 ecstasy tablets. These are the subject of Count 17. They also found five bags, three of them in the freezer, containing in all the 136.46 grams of amphetamine sulphate that are the subject of Count 13, and a small quantity of cannabis resin and a bar of cannabis resin, the subject of count 15. Both Mr McFarland and Mr Jones were arrested and taken to Rouge Bouillon Police Station. Whilst they were there the other co defendant, Mr Pinkowski, arrived at the property, where the search was continuing. When he was searched 152 ecstasy tablets were found in his tracksuit trouser pocket. At a search at his house made later that day over 300 ecstasy tablets and nearly 14 grams of cannabis resin were found. A further search at Mr Jones' house discovered 336 ecstasy tablets and nearly 40 grams of amphetamine sulphate and a 113 gram block of cannabis resin. Four cannabis plants were growing in the back garden.
4. Mr Jones admitted to the police that he had dealt in ecstasy five years ago and had begun doing so again recently, having supplied about 1000 ecstasy tablets in the past month to 3 people. He also admitted that he supplied amphetamine sulphate to a client base of about 3 or 4 people, bulking up the base sulphate found at his house with glucose powder to make ten times the original amount.
5. Mr McFarland was interviewed on 2nd August. He admitted that during the past few months he had supplied small quantities of cannabis socially to friends without payment or financial gain and that the bar of cannabis resin found in his kitchen, the subject of count 15, was given to him on 30th July as his reward for holding the amphetamine sulphate the subject of count 14. He, also, admitted that he would have used the cannabis for himself and allowed friends to use it. His admissions in respect of the cannabis are the subject of counts 10, 11 and 15.
6. Mr McFarland said that he had been looking after the amphetamine since 30th July 2003 and that a third party had told him that someone would be sent to pick up the drugs on Friday 1st August. He knew in advance that he was going to hold on to the amphetamine. But, when the drugs were delivered he discovered that there were also, some ecstasy tablets with it. He agreed to look after these although he would have preferred not to. It is now apparent that the person who delivered the drugs to him was Mr Jones, who has written to this Court, saying that he left the drugs with Mr McFarland to look after and that Mr McFarland was by no means a drug dealer.
7. Mr McFarland was charged on 2nd August 2003 and, after previous reservations of pleas, was indicted on 31st October 2003 when he pleaded guilty to the counts to which we have referred.
8. In respect of the ecstasy tablets the Royal Court took as a starting point a period of 7 years imprisonment. Mr McFarland submits that this was manifestly excessive for the small quantity of tablets involved. He contrasts his position with that of his co accused, Pinkowski, whose starting point was the same but for triple the quantity.
9. In Bonnar & Noon v AG, [2001] JLR 626 this Court laid down as a guideline a starting point of between 7 and 9 years for a defendant engaged in trafficking between 1 and 500 units of Class A drugs. Where on that band the starting point should be, in any given case, depends upon the quantity involved and the role played by the defendant in trafficking in the drug. This guideline has been consistently followed and applied and there are several cases where a starting point of 7 years has been used in respect of quantities of the order of 60 tablets. In the light of that decision it is impossible to say that a starting point of 7 years, the lowest point on the guideline scale, is either wrong in principle or plainly excessive.
10. This Court and the Royal Court have often stated that the starting point for trafficking in any amount of Class A drugs will rarely be less than 7 years. We do not regard this as such an exceptional case. Further it is a mistake to assume or to contend that, all other things being equal, the starting point for 50 units must necessarily be some particular fraction of the starting point for 100 or 200 or 500 units. Such an approach not only begs the question as to what the fraction should be and of what. It is, also, a misunderstanding of the basis of the guidelines, which is to lay down that, generally speaking, any trafficking in Class A drugs in this Island will meet with severe punishment, even if the quantities are modest. The punishment will be the greater the larger the quantity of the drugs or the more significant the role of the defendant. The decision as to starting point is not a mathematical exercise. It is an exercise of broad judgement in the light of all the circumstances, but starting with an assumption that, save in exceptional circumstances, starting points of at least seven years are appropriate. In the present case the defendant was acting as a minder and not a dealer, but, as has often been said, the minder performs an essential service to the dealer, to whom he is likely to be, and in this case was, close. In those circumstances Mr McFarland has no justified complaint in respect of a starting point at the very bottom of the scale. We do not accept his contention that he has been sentenced as if his involvement was far greater, or, as he put it, even as that of a ringleader dealing on a permanent basis.
11. Mr McFarland also contends that the resulting overall sentence of 4 years is too high and must have been reached by considering count 17 together with the other counts in respect of Class B drugs, upon which the Court imposed sentences totalling 27 months. That is the aggregate of the individual sentences on those other counts. Since they were ordered to run concurrently, the total period of imprisonment for these other offences, had they stood alone, would have been 12 months. His contention is that these other offences did not warrant a prison sentence at all and that the imposition of these sentences had unjustifiably influenced the actual total sentence of 4 years. We do not agree.
12. Firstly we do not accept that the other counts did not merit sentences of imprisonment. In the case of Count 13, the amphetamine count, he was acting as a minder for a dealer, and the block of cannabis resin, the subject of Count 14, with a street value of £1,000, was his reward. We do not regard the imposition of sentences of 12 months and six months for these offences as wrong either in principle or amount. It may be that, if counts 10, 11, and 15 had stood alone, the Court would have countenanced a non-custodial penalty but whether that is so is academic. Secondly, in determining the actual sentence of imprisonment the Court must necessarily have regard to the totality of the defendant's criminal behaviour, as well as ensuring that the total sentence is not thereby rendered disproportionate. The fact that Mr McFarland had committed these offences in respect of class B drugs as well as the ecstasy offence was a factor that militated strongly against the imposition of a lower starting point in respect of the ecstasy. Indeed it pointed the other way. Thirdly, if, as we hold, the starting point was appropriate, the next question is whether appropriate allowance was made for mitigating factors. If it was, the fact that a total term of imprisonment of 12 months was imposed in respect of Counts 10, 11, 13, 14 and 15, is without practical significance.
13. Mr McFarland has directed our attention to 5 cases, in addition to Bonnar, which he submits indicate that the sentence imposed was excessive. The number of ecstasy tablets involved in these cases was between 100 and 5,000. None of these are guideline cases and we have not found them to be of any assistance to us or to Mr McFarland. As this Court has said, an attempt directly to read across from one case to another is often unhelpful since the circumstances of each case are different. So it is here. The cases reveal a medley of different starting points, mitigation, and age of offender. In one of them there was no element of commercial trafficking.
Mitigation
14. Mr McFarland contends that inadequate allowance has been given for his personal mitigation. Firstly he submits that the small amount involved should be a major factor when assessing mitigation. We do not accept this. The quantity involved is one of the determinants of the starting point. It does not fall to be taken into account again by way of deduction for mitigation.
15. There were several matters that substantially mitigated the seriousness of Mr McFarland's criminality. Firstly there were his pleas of guilty, the admissions he made in respect of the use of cannabis, which were the basis for counts 10, 11 and 15 in the indictment, and his remorse and regret that his thoughtless actions, stemming from his drug use, have harmed his family. Secondly, he may, for present purposes be treated as a man of good character. Thirdly there were his personal circumstances. At the time of the offences those circumstances were these. He was 36, a married man with four children aged 9, 5, 3 and 2. His wife described him as "a wonderful father". He had worked for the same company for 3½ years and has always been in employment. He was 25% disabled as a result of a fracture of his right leg in 1997, sustained when he was assaulted, which required him to undergo no less than eight operations. His use of cannabis on a daily basis (as opposed to his previous use of it at weekends) began as a means of alleviating pain. He stopped using drugs after his arrest in August. A drug test in December showed him to be drug free. His motivation for becoming involved with amphetamine and, thereby, the ecstasy, was that it was, as he wrongly thought, an easy way of obtaining cannabis for doing very little. Fourthly the impact on his family, where he has been a "hands on" father will be severe.
16. All these matters were before the Royal Court, both in the Probation and Drug Service Reports, and in the submissions of Counsel by whom Mr McFarland was then represented. The Royal Court had particularly in mind the impact that a prison sentence would have upon Mr McFarland's family. In the light of those factors the Court reduced the sentence by 3 years, a reduction of about 42%. This was a sizeable reduction, considerably greater than that which might arise if the principal ground of mitigation was a plea of guilty alone. We do not accept that this reduction was inadequate or that the resulting sentence was clearly too much.
17. In those circumstances we decline to grant either an extension of time for leave to appeal or leave to appeal.
Authorities.
AG-v-Layton (4th July, 2002) Jersey Unreported; [2002/126];
AG-v-McFarlane (29th April, 2002) Jersey Unreported; [2002/88];
Bonnar & Noon-v-AG [2001] JLR 626;
AG-v-Lakeman (15th March, 2002) Jersey Unreported; [2002/63];
AG-v-Peacock [2003]JRC032;
AG-v-Lavin [2003]JRC197.
Campbell, Molloy and MacKenzie [1995] JLR136.
AG-v-Welsh (3rd February, 2000) Jersey Unreported; [2000/21].
Morgan & Schlandt-v-AG (24th April, 2001) Jersey Unreported; [2001/88].
Valler-v-AG [2002] JRR 383.
Whelan: 'Aspects of Sentencing in the Superior Courts of Jersey ' (2nd Ed'n): pp.50-1, 88-81