[2006]JCA037
COURT OF APPEAL
15th March 2006
Before: |
J. P. C. Sumption, Esq., Q.C. (President); Dame Heather Steel; and G. C. Vos, Esq., Q.C. |
Christopher Thomas Morgan
v
The Attorney General
Appeal against the sentence passed by the Superior Number of the Royal Court on 16th December, 2005 on charges of:
2 counts: conspiracy to supply a controlled drug (Cannabis).
S. M. Baker, Esq., Crown Advocate.
Advocate D. M. Cadin for the Appellant.
jUDGMENT
STEEL JA:
1. This is the judgment of the Court. On 7th October 2005 the Appellant who is 40 years of age pleaded guilty to two counts of an indictment which alleged two separate offences of conspiracy to supply a controlled drug, namely cannabis resin, between 1st September 2004 and 4th November 2004, and in count 2 between 1st October 2004 and 4th November 2004. On 16th December 2005 in the Royal Court before the Superior Number he was sentenced to four years' imprisonment concurrent in respect of each. He appeals that sentence by leave of the Deputy Bailiff dated 16th February 2006.
2. This appeal is brought on the ground that the sentence on count 1 is manifestly excessive. Advocate Cadin, on behalf of the Appellant, cites three grounds:
(i) that it was not appropriate for the Court to apply the starting points identified in the case of Campbell, Molloy and MacKenzie [1995] JLR 136 to a case of conspiracy;
(ii) given the weight of the drugs and/or the Appellant's role and/or involvement in the overall conspiracy, a starting point of seven years was too high; and
(iii) there is a manifest and significant disparity of sentence when compared with the sentence imposed on the Co-Defendants.
3. On 16th December 2005 the Appellant was sentenced by the Learned Commissioner, Sir Richard Tucker QC, together with 4 Co-Defendants, three of whom had pleaded guilty, while the fourth, John Beamer, had been convicted on count 1. The Appellant and Paul Graham had pleaded guilty to both counts of the indictment. Steven Pereira and John Beamer were concerned with count 1 only and James McCarron in count 2 only. The Court, having considered each Defendant separately, listened to the submissions made on the part of the Crown for each Defendant, and having taken into account all the relevant reports and testimonials, sentenced as follows:
4. The Appellant, regarded as a man of good character, was sentenced to four years' imprisonment concurrent on each count, the sentence the subject of this appeal. A starting point of seven years was adopted.
5. Paul Graham was sentenced to four years' imprisonment concurrent on each count from a starting point of eight years. Substantial discount was given for his mitigation.
6. James McCarron, a man with no relevant convictions was sentenced to 180 hours of Community Service to be completed in 12 months coupled with a requirement to attend a drugs and alcohol course. A starting point of two and a half years was reduced by reason of his early plea, the basis of his plea, and the lesser quantity of drugs in count 2.
7. Steven Pereira was sentenced to three years' imprisonment on count 1 with a starting point of seven years discounted by reason of his guilty plea, his youth and his co-operation with the police. John Beamer, having been convicted on count 1, was sentenced to three and a half years' imprisonment from a starting point of seven years.
8. Before we consider the Appellant's submissions and the Crown's response, in order to asses the different roles played by each of the five conspirators and to consider the issue of disparity, we set out the facts of the two conspiracies. The Appellant and the other four Defendants were each involved in the supply of cannabis in Jersey. The two counts in the indictment represent two separate substantial amounts of cannabis. Count 1 concerns the larger amount which was being sold by Pereira and Beamer. Count 2 concerns a second smaller amount which was being supplied within the Island by McCarron. The cannabis was obtained on credit from a supplier in the United Kingdom. Graham was sent from the United Kingdom to collect the money owed by Pereira and Beamer. Money was also owed by McCarron in respect of the smaller amount.
9. On 30th October 2004 Graham arrived in Jersey on a flight from Manchester and was stopped, searched and released by Customs who found £292.10 on his person. Over the weekend meetings were observed between Graham, Beamer and Pereira. Beamer and Pereira were seen to be collecting money which was put together in a rucksack which was eventually passed from Graham to the Appellant who concealed it in a rented garage. When Pereira was arrested and interviewed he led the police to a significant stash of drugs hidden in the Island. The prosecution case was that that amount was what was left of the drug consignment which Pereira and Beamer had been dealing and in respect of which Graham was collecting money.
10. The second conspiracy concerns Graham, McCarron and the Appellant. In interview McCarron told the police he had agreed to purchase 2 kg of cannabis for £7,000 for social supply among friends who had clubbed together to raise the necessary funds. On Monday 1st November 2004 McCarron received a phone call from Graham to whom he gave a rucksack containing £7,000 in cash. This rucksack was later recovered from a garage rented by the Appellant. It was found to contain £32,800. Before Graham's arrival in Jersey, Pereira set out to collect drug money. The evidence was that on 27th October text messages passed between Pereira and Beamer, and Beamer and an associate, Scott Sumner. Sumner texted a reply to Beamer which refers to an amount and a projected meeting with a mate. Having initially given an untrue account to the customs officers, Graham later admitted that he had been sent to Jersey by someone he refused to name to collect money on their behalf. Graham stayed at a Guest House in St Helier from his arrival on 30th October until his arrest on 1st November.
11. Observations were kept on 1st November by the police. At 14.48 hrs Graham telephoned the Appellant's mobile phone from a public telephone kiosk. The call lasted 20 seconds. When Graham was later arrested, the Appellant's number was found in his possession.
12. Later the same evening Pereira and Beamer were observed to make three visits to petrol stations where their activities were recorded by CCTV cameras and police. As this took place, Graham made a telephone call to McCarron at 18.21 hrs. Graham was found to be in possession of McCarron's phone number when he was arrested. McCarron was later to tell the police that he met Graham within five minutes of that call and gave him a dark coloured rucksack containing £7,000 in cash. Pereira and Beamer then started to make their way back into town and Pereira took a call on his mobile phone from Graham. Pereira and Beamer were observed to return to the petrol station where a man Harrison put a package onto the rear seat of a red Metro motor car. At 19.25 hrs, about ten minutes after that package was handed over, Pereira and Beamer were seen in a blue Escort motor car to go to Roberts Garage. Beamer was driving. Just before the Escort arrived, a silver Ford Fiesta containing three people arrived at the garage. Two of the occupants went to the shop while Kennedy went to speak to Beamer in the Escort.
13. At the garage Beamer handed a piece of paper to Deuchar, one of the men who had been in the shop, the Crown say a dealer list, and Deuchar handed an item to Beamer. Pereira then re-joined Beamer and they drove off. Around the time that he was at the garage, Pereira received a phone call from Graham from a telephone kiosk. At 19.48 hrs Graham was seen in the doorway of a chemists shop carrying the rucksack given to him by McCarron. The police then lost sight of Graham. At 20.01 hrs Graham called the Appellant's mobile phone from the kiosk. Both agreed that it was to arrange the handover of the rucksack. Some time between 20.05 hrs and 20.17 hrs the handover took place. At 20.33 hrs Graham again phoned Pereira's mobile phone from the kiosk. The red Metro driven by Pereira, with Beamer as the passenger, pulled up outside the kiosk and Graham got into the vehicle. The Metro was driven round for about five minutes. Graham was dropped off at the telephone kiosk and as he started to walk to the Guest House, he was arrested. The Metro drove off and Graham was found in possession of £1,985 in plastic bags which bore Pereira's fingerprints.
14. The police gave chase to the Metro and as it did so two dealers' lists were thrown out of the front passenger side of the vehicle by Beamer. During the chase Pereira telephoned his girlfriend to say "Steven is about to be arrested". In fact both Pereira and Beamer were arrested. The two dealer lists were recovered. Expert analysis by a drugs' officer confirmed that they related to cannabis resin with a street value of £77,120 or a wholesale value of £83,340 and the quantity of cannabis would be about 13.5 kg. A further dealer list was found in the glove compartment of the Metro which referred to cannabis resin with a likely weight of 2 kg with a street value of £11,250 and £8,000 wholesale. Beamer's house was searched and a dealer list was found that related to a quantity of cannabis resin with a wholesale value of £12,500, the quantity being about 3 kg. Graham's room was searched. £600 was found in a drawer next to his bed. He later said that related to part of the payment for carrying out the cash collection and was the balance of £2,500 that Pereira had given him earlier. £1,000 was found hidden under the carpet of the boot of the Metro.
15. The Appellant was arrested. At first he denied that he had a garage. He was then shown an invoice showing that he had rented a garage at Belle View Flats, St Helier, since 17th September 2003. The garage was searched and the rucksack was recovered from where it was concealed. It was found to contain £32,800 and Pereira's fingerprints were found on two bags in the rucksack each containing £1,000.
16. The Appellant was interviewed. The explanation that he gave regarding the rucksack was that it was left in his car at the request of a man who was to offer him a job. He agreed to keep it, he said, believing it to contain overalls. At the house he said, he had opened it, seen the cash and put the rucksack behind the power washer in his garage where it was found. In the next interview he said he had received a call from Paul Graham in Liverpool and was asked to look after money. He said he was told it was not drugs money. He confirmed that he had received a call and after 18.00 hrs and took the money. He denied that there was only £7,000 in the rucksack when he had received it. He stated then that "I knew, in a way, that it was drugs money but I didn't know how much."
17. After a number of interviews Pereira assisted the police to recover over 16 kg of cannabis resin and 66 ecstasy pills in four packages together with rubber gloves and coin bags.
18. Before sentence the Court heard all the submissions on behalf of each Defendant, and gave full consideration to the extent and seriousness of each Defendant's participation. The Appellant was described as a key participant, entrusted with the safe keeping of a substantial sum of drugs money. The Court selected a starting point of seven years, mitigation being primarily his pleas, his good character, reputation in the community and efforts to establish himself.
19. Ground 1 concerns the Campbell guidelines. On behalf of the Appellant, Advocate Cadin submits that conspiracy, being an offence which covers a broad range of involvement and moral turpitude, is akin to the statutory offence of "being concerned in the supply" of controlled drugs. He concedes the current guidelines for cases of trafficking in Class B drugs are set out in Campbell, Molloy and MacKenzie but he submits that these guidelines should not automatically apply to cases of conspiracy to supply. He cites the case of McDonough v AG [1994] JCA 193 which in his submission should have been followed by the Royal Court to give a wider discretion in respect of what Mr Cadin submits is the Appellant's peripheral involvement.
20. Advocate Cadin further submits that the guidelines in Campbell cannot have been intended to apply to a single act of assistance provided by the Appellant to run his Co-conspirators. The Respondent's case is that it was entirely appropriate for the Court to have regard to the Campbell guidelines in this case. The Court was entitled to assess the relative involvement of each conspirator and arrive at the starting point that it did. The fact that criminality may vary, the Crown submit, was not a reason for not applying the guidelines and the fact that cases such as McDonough have declined to lay down guidelines does not mean that the sentencing court should never take account of those guidelines.
21. The evidence in this case suggests that each conspirator played a distinct but important role in carrying out the terms of the agreement. As set out in the Response, the facts reveal a small group of individuals involved in supplying a significant quantity of cannabis. The value of the amount recovered was £66,000. Two Defendants were associated with dealer lists indicating dealing to a high value and the Appellant was in possession of nearly £33,000. Each conspirator was closely involved in the conspiracies which concerned the Appellant and Graham. Graham arrived in Jersey specifically to collect drug money in possession of the telephone numbers of the Appellant, Pereira and McCarron.
22. The surveillance evidence supports the fact that Pereira was involved with collecting money and he had access to a stash of drugs worth £66,000. The money was passed to the Appellant who concealed it, together with money he received from McCarron. The Court was entitled to conclude, the Crown submit, that the Appellant must have been highly trusted to be charged with the safeguarding of the money thus collected. The evidence showed that he was trusted by the source of supply in England and that he was close to that source of supply.
23. The Appellant entered his plea on the basis that he received the rucksack containing the money from Graham and was to return it. The Court, in sentencing, observed that "whereas in two cases pleas of guilty had been entered on a particular basis of fact, the Court will in general sentence on that basis, with the reservation that it makes no finding in Morgan's case as to his intention in relation to the amount of money that he held." The Crown had not sought to hold a Newton Hearing to decide the issue of fact as to whether the Appellant was to have taken the money to the United Kingdom; the Appellant maintained that his intention was to return the rucksack and the money to Graham.
24. The Court was invited by the Crown to apply the Campbell guidelines to this case and within those guidelines a starting point of six to ten years is appropriate for the supply of Class B drugs between 10 kg - 30 kg. The Court adopted the seven year starting point for which the Crown moved.
25. Ground 2 relates to the starting point and Advocate Cadin submits that in any event the starting point of seven years is too high, given the differing levels of involvement. His case is that the Appellant's role was limited to a single involvement when he stored a bag containing monies associated with the conspiracy and that seven years is inappropriate for a single limited act. The Court is invited to view the present case as one where the Appellant's involvement was so exceptionally low that the sentencing court would be justified in passing a sentence outside the applicable band even accepting that the Court may be of the view that the guidelines do apply to offences of conspiracy.
26. It is submitted by the Crown that the seven year starting point adopted by the Court was appropriate and within the 6 - 10 year range for the amount of cannabis in this case. The starting point was generous when judged purely on the weight of the drugs basis. The Appellant's role was an important one, arguably he was more culpable than Graham. The Crown's case is that both the Appellant and Graham are not vastly different in their level of criminality. The Crown do not accept that the Appellant's involvement was exceptionally low so as to take the sentence court outside the appropriate guidelines.
27. Ground 3 is disparity. Advocate Cadin submits that there is an unjust disparity between the sentences imposed on the Co-Defendants and the Appellant, taking into account their respective roles and level of involvement. The Court sentenced the Appellant on the basis of his pleas, namely that he agreed to hold money for another knowing that the money related to the supply of drugs in the Island. The Appellant's role was said to be passive and minor as minder of the cash.
28. The test for disparity in Jersey is objective. The Court was referred to the case of Wright v AG 12th July 1999 [1999/125] in which the Court of Appeal approved a test set out in the English case of R v Fawcett [1983] 5 Cr App R (S) 58 and in Bevan v AG [2003] JCA 014 the Court of Appeal stated that the Court must interfere if disparity leads to a justified sense of grievance.
29. Advocate Cadin submits that the sentence for Beamer is in explicably low and that the sentences of Beamer, Pereira and Graham who had considerably higher levels of criminality and involvement are all manifestly and significantly lower than that of the Appellant leading to him feeling a sense of grievance.
30. The Crown submits that the test for disparity is a high one, and the Court of Appeal should only interfere with a sentence on this ground in the clearest of cases.
31. Here the Court was entitled to assess the Appellant's level of involvement in the two conspiracies, further, certain of the Appellant's mitigation was somewhat unrealistic.
32. There is no proper basis, the Crown submits, for the Appellant to argue that he is left feeling a sense of grievance.
Conclusion
(i) We are satisfied, that the Court correctly applied the principles in Campbell to this case and that there is nothing in the Appellant's situation which justifies a departure from the established guidelines.
(ii) In relation to the selected starting point of seven years, we conclude that that starting point was appropriate for the trusted and important part which was played by the Appellant in the two conspiracies.
(iii) There is nothing in the approach to the sentences of the Co-Defendants in this case which could properly give rise to the sense of grievance of which the Appellant complains, and disparity here is not established. Each Defendant was sentenced in a manner which reflected his participation, his individual situation, and his personal mitigation which included among other matters the youth of Pereira and Beamer, Pereira's assistance to the police and Graham's mental illness.
33. This sentence of four years is entirely appropriate for the offences that the Appellant admitted. It cannot be regarded as manifestly excessive for his role and in all the circumstances of this case. This appeal therefore is dismissed.
Authorities
Campbell, Molloy and MacKenzie [1995] JLR 136.
McDonough v AG [1994] JCA 193.
Wright v AG 12th July 1999 1999/125.
R v Fawcett [1983] 5 Cr App R (S) 58.