Jersey Unreported Judgments

[2004]JCA125

 

COURT OF APPEAL

                                                                 15^th July, 2004.

 

 

Robert CUMMING

-v-

The Attorney General

 

Application for leave to appeal against a total sentence of 4½ years' imprisonment passed on 16^th March, 2004, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 30th January, 2004, on a guilty plea to:

 

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 1:  MDMA, on which count a sentence of 4½  years' imprisonment was passed. count 3:  cannabis resin, on which count a sentence of 1  year's imprisonment, concurrent, was passed. count 5:  cannabis resin, on which count a sentence of 1  year's imprisonment, concurrent, was passed.

1 count of:

possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 7:  MDMA, on which count a sentence of 1 month's imprisonment, concurrent, was passed.

 

[On 30th January, 2004, the Crown accepted not guilty pleas to counts 2, 4, and 6 of the indictment.]

 

Leave to appeal was refused by the Bailiff on 22^nd May, 2004; and on 4^th 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.

 

 

Advocate S.M. Baker for the Appellant;

Mrs S. Sharpe, Crown Advocate.

 

 

JUDGMENT

 

CAREY JA:

 

Introduction

 

1.        The Applicant in this case, Robert Cumming, a 42 year old upholsterer, was sentenced by the Superior Number of the Royal Court on the 16^th March, 2004, having pleaded guilty to four counts on an indictment that was presented against him.  Sentences totalling 4½ years concurrent were imposed and the Applicant now seeks leave to appeal against the longest of those sentences on the grounds that it was manifestly excessive and wrong in principle.

Background

2.        Before considering further the individual sentences that were imposed it is perhaps helpful to record the background to the arrest of the Applicant.  The Jersey Police had evidently taken an interest in this Applicant and obtained a search warrant for his home address.  The same day, 1^st September, 2003, officers went to a public house where they found the Applicant.  After a little equivocation he was asked if he was in possession of any drugs.  He indicated the front left-hand pocket of his jeans wherein the officers found two plastic bags containing what turned out to be MDMA ecstasy tablets.  In addition two pieces of individually wrapped cannabis found on him were seized.

3.        The Applicant was arrested and the search warrant on his home executed.  At this stage he was forthcoming to the officers and the following seizures were made:-

six pieces of cannabis resin individually wrapped in cling film in a Tupperware box in the kitchen cabinet,

a set of scales in a black box from a kitchen drawer, a roll of cling film,

pieces of brown resin from the kitchen cabinet, and

a pot containing tobacco and cannabis debris on the lounge table.

In addition £500 in cash was found on the premises.

4.        When these seizures were totalled up they formed the basis of the following four counts in the indictment, for which the sentences indicated were imposed.

Count 1

Possession with intent to supply sixty ecstasy tablets found on his person in the public house  - 4½ years imprisonment with a starting point of 7½ years.

Count 3

Possession with intent to supply of 1½ ounces of cannabis resin found on his person -  1 year concurrent.

Count 5

Possession with intent to supply the cannabis in his home (6.5 ounces) - 1 year concurrent.

Count 7

Simple possession of a single ecstasy tablet found at his home - 1 month concurrent.

5.        As we have indicated the application for leave to appeal is made only in respect of the sentence of 4½ years in respect of the sixty MDMA or ecstasy tablets, but the totality of the offending has to be looked at.

The Applicant's submissions

6.        As is clear from the Deputy Bailiff's sentencing remarks the Court approached sentencing applying the decision of this Court in Valler v. Attorney General (2002) JLR 383, although that case was not specifically mentioned.  Following the conclusions of the Crown, the Court was invited to increase the starting point on the first count, now subject of appeal to eight years instead of seven years.  This increase was in effect reduced by the Court taking a starting point of 7½ years.  Mr. Baker cannot dissent from the principle set out in Valler and in the Guernsey case of Richards (18^th April 2000) Guernsey Court of Appeal, that where the Court is sentencing in a case of trafficking in substantial quantities of more than one type of drug it was appropriate to take account of this fact by increasing the starting point for the most serious offence and imposing concurrent sentences for the two offences.  What he in effect is saying is that this learning does not apply to trafficking of the type undertaken by this Applicant.  He lays emphasis on the word "substantial" adopted in Valler.  So, according to Mr. Baker, the starting point here should not be increased beyond seven years.  He then suggests that the discount for mitigation should be 3½ years.  In any event Mr. Baker concedes that he could not quarrel with 3½ years as the appropriate sentence for this Applicant and so at best this Court, if it acceded to his argument would be making a relatively minor adjustment of the sentences imposed by the Royal Court.  The Applicant claimed and it was accepted by the Court that he was only going to supply friends on a non profit basis.

The Court's conclusions

7.        This Court does not agree that the Valler principles should not apply in a case such as this.  The fact that in addition to the 60 ecstasy tablets which was the most serious part of the Applicant's offending he was found in possession of a total of 8 ounces of cannabis resin certainly justified the modest increase in the starting point chosen by the Royal Court.  We agree with the Royal Court that the conclusions on the counts relating to possession of cannabis resin with intent to supply were well below the norm and rightly increased by the Royal Court.  This Court would not have quarrelled with a sentence of eighteen months imprisonment on Count 5 if it was standing by itself and therefore the level of offending identified by Count 5 was not insubstantial and was rightly recognised in the way canvassed in Valler by increasing the starting point on the sentence for the Class A drug.  So far as the mitigation is concerned we have carefully considered all the material that has been put before us.

8.        A further point, which is perhaps worth emphasising is that when it comes to sentencing an active dealer, mathematical calculations based on the actual drugs found in his possession are not always of assistance.  It is inevitable that some dealers will retain a relatively small part of their stock within the reach of the law enforcement authorities in the event of their being apprehended and even a small scale dealer will have periods when his new stock has just arrived.  He may have the misfortune to be apprehended on that day.  Likewise a large-scale dealer may have the good fortune to be apprehended on a day when he is finishing off the disposal of his old stock.  The Applicant was found with sixty ecstasy tablets, a substantial consignment of cannabis resin cut into blocks, scales and a sum of unexplained cash all of which pointed to a certain level of activity as a supplier, albeit that the Court accepted his claim to be supplying to friends who were already consumers and that he was not corrupting anybody. His previous record of regular employment and non-involvement in the drugs scene was fully reflected in the discount accorded to him.

9.        It is not a tenable argument that a discount expressed in years and months as proposed by the Crown is immutable where the sentencing Court reduces the starting point.  A discount of over a third in a case such as this was in the view of the Court unimpeachable.

10.      The Royal Court sentence was within the guidelines laid down in previous decisions of this Court.  This application is without merit and is refused.

Authorities.

Valler -v- AG [2002]JLR383.

Richards (18^th April, 2002) Court of Appeal of Guernsey.

Bonnar & Noon -v- AG [2001] JLR626.

AG -v- Lavin [2003] JRC197.

AG -v- Doublet [2003] JRC205.

Re X [1995] 2 Cr. App. R. 125.

Asher Sivan & Ors (1988) 10 Cr. App. R. (S) 282.

Archbold (2002 Ed'n): 5/175 - 5/177.

Watkins [2002] EWCA Crim 371

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): paras 139-151.

Miah and Lihou-v-AG [2003]JCA135

Rimmer & Ors-v-AG [2001] JLR 373

Morgan & Schlandt-v-AG [2001] JLR 225