Jersey Unreported Judgments

[2009]JCA145A

COURT OF APPEAL

22^nd July 2009

William Swanston

v

The Attorney General

Application for leave to appeal against conviction (guilty plea) and sentence passed by the Superior Number on 1st December, 2008 on:

1 Count: Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug contrary to Article 61(2)(b) of the Customs & Excise (Jersey) Law 1999.

2 Counts: Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.

1 Count: Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 of the Customs and Excise (Jersey) Law 1999.

William Swanston on his own behalf with the assistance of an Amicus

J. C. Gollop, Esq., Crown Advocate.

JUDGMENT

MARTIN JA:

1.        This is an application for leave to appeal.  In the preparation and presentation of the application, the applicant has acted without legal assistance; but he presented his case with clarity.  He confined his application to one for leave to appeal against sentence, and we deal with the matter on that basis.

2.        We have also had the assistance of an amicus curiae, Advocate Fogarty, and we are grateful for such help as she was able to give us.

3.        We start by setting out the basic facts.  The applicant and three other individuals were charged with a number of offences arising out of the importation of heroin.  In essence, what was asserted by the Crown was that between January and November 2007 the applicant had provided money which had been sent, either by the applicant himself or by his wife or his co-defendant Afonso, to his co-defendant Armstrong in England, in return for which Armstrong sent heroin to the applicant in Jersey; and that the applicant had kept some of the heroin for himself and his wife, and had sold the rest to fund further purchases from Armstrong.  These circumstances were the subject of two indictments, although ultimately the Crown did not proceed on all the counts set out in them.  We mention only those which are relevant to the application.  In the first indictment, Armstrong, the applicant and Afonso were charged with conspiracy to fraudulently evade the prohibition on the importation of a controlled drug ("Count 1/1"); and the applicant alone was charged with two offences of possession of a controlled drug ("Count 1/3" and "Count 1/5") and with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug ("Count 1/4").  In the second indictment, the applicant was charged with supplying in Jersey a controlled drug ("Count 2/1").  The applicant pleaded guilty to all the charges against him, as did Armstrong and Afonso to Count 1/1.  They did so on the basis of defined facts which the Crown accepted.  Where relevant, these are referred to later in this judgment.

4.        The applicant was sentenced to 7 years' imprisonment on Count 1/1, to one month's imprisonment on Count 1/3, to one year's imprisonment on Count 1/4 and to 5 years' imprisonment on Count 2/1.  No separate penalty was imposed in relation to Count 1/5.  A confiscation order in the sum of £730 was made against him.  All the sentences were to run concurrently, with the result that the applicant's total sentence was 7 years' imprisonment.

5.        Armstrong was also sentenced to 7 years' imprisonment on Count 1/1, and Afonso to 3 years' imprisonment on that count.

6.        As we have said, the applicant pleaded guilty to the charges.  There were nevertheless at an earlier stage indications that he wished to appeal against his conviction.  By the time of the hearing before us, however, there was - unsurprisingly - no longer a live question about the propriety of the conviction.

7.        In sentencing Armstrong, the Deputy Bailiff took a starting point of 12 years' imprisonment and, after discounting for the guilty plea and some personal mitigation, arrived at a sentence of 7 years' imprisonment.  In relation to the applicant, the Deputy Bailiff then said this:-

"William Swanston, you were the most heavily involved at the Jersey end, as we say, being involved in the importation of this amount and in turn, disposing of half and keeping the other half to feed yourself and your wife's habit.  The Crown have taken the same starting point.  Your Advocate argues that a distinction should be made but we think that it is not possible to distinguish between the involvement of you and Armstrong and therefore we take a starting point of 12 years.  In your case there is also the guilty plea, you too have a poor record, including possession of drugs but no previous dealing offences.  We note your attempt also to overcome your addiction whilst in prison and we do urge you to continue with that because until you do, the outlook is bleak.  We have read all the reports and all the mitigation that appears from the papers.  We accept, as your counsel has said, that you were more co-operative when interviewed than Armstrong, but conversely, you did involve your wife and Afonso in the conspiracy and all in all, we think that these factors balance each other out and that therefore no distinction is to be drawn between you and Armstrong."

8.        The applicant has two primary complaints about the sentence imposed on him: that in sentencing him the Royal Court took an erroneous view of the underlying financial picture, and that the difference between his criminality and antecedents and those of Mr Armstrong should have resulted in his being given a lesser sentence than Mr Armstrong.  We call these two complaints respectively "the sentencing basis point" and "the disparity point".

The sentencing basis point

9.        The sentencing basis point has two aspects: a complaint that the Royal Court regarded the applicant as dealing for commercial gain, when according to him he was supplying only his friends; and a complaint that the Court had been allowed to believe that the applicant had continued to fund the purchase of drugs throughout, whereas in fact - he said - he had stopped doing so some months before the conspiracy came to light and subsequent payments had been arranged by his co-defendants without him.  The significance of the second point is that the Crown had identified the amount of heroin imported by reference to the sums sent from Jersey to England, and had proposed starting points for both Armstrong and the applicant by reference to the whole of the imported amount.  Bound up with the second complaint was an allegation that the advocate who appeared for the applicant had failed to comply with his instructions to tell the Court that the funding had stopped.

10.      It will be convenient to take the second complaint first.  In accordance with the procedure identified by this Court in Mendes v Attorney General [2003] JCA 106, Advocate Hopwood swore an affidavit dealing with the instructions he had received.  He accepted that, on the morning of the sentencing hearing, the applicant had told him that he had "pulled out in July".  This was a significant departure from the applicant's previous instructions, which had been that he was involved throughout the period from January to November 2007; and the applicant had said as much to the police in interviews under caution.  Advocate Hopwood deposed that he had discussed with the applicant the possible effects on procedure and sentence of putting forward the new version of events, and the applicant had agreed that the case should be put on the original basis.  This account was supported by an attendance note, which included the words "Stay as we are.  Try hard this afternoon".

11.      We asked the applicant about this evidence when he made his application to us.  In answer to our questions, he told us that he and Advocate Hopwood had indeed discussed the question of the changed instructions; that he had been told that to put forward a different case might involve a hearing to determine the basis on which the applicant should be sentenced, and that if that went badly for him he ran the risk of losing some or all of the substantial discount he could otherwise expect for his guilty plea; and that he had agreed with Advocate Hopwood that the case should proceed on the basis of his original instructions.  In these circumstances, we accept without hesitation Advocate Hopwood's evidence, confirmed as it is by the applicant, that the matters put to the sentencing court were in accordance with the applicant's express instructions.  This complaint is without substance.

12.      So also is the other complaint comprised in the sentencing basis point, that the court sentenced on the basis that the applicant was dealing for commercial gain.  The sentencing remarks do not contain an express reference to commercial gain, although the Attorney General's statement supplied in relation to the confiscation order does describe the applicant as "the organiser of a commercial enterprise".  Nevertheless, the Royal Court was plainly entitled to take into account the undisputed fact that the applicant had sold heroin to fund further purchases.  As we have said, the applicant was sentenced on a factual basis that had been agreed with the Crown.  That factual basis derived largely from an email sent by Advocate Hopwood to Crown Advocate Gollop on 15 October 2008, which included statements that the applicant "sold a proportion of each consignment to raise enough money to assist him to afford the next one" and "he sold only to his friends".  Advocate Hopwood's evidence was that this had been agreed with the applicant before it was sent; and his evidence is supported by a manuscript note on a copy of the email, which says "Read to client and instructed to send to Crown".  In mitigation, Advocate Hopwood expressly stated that the applicant "sold on only to his small circle of close friends whose addiction and consumption he knew well".   The sentencing court therefore was well aware both that the applicant had sold drugs and that he had done so only to friends.  Its conclusion that he was a dealer was entirely justified in circumstances where there was no dispute that he had sold drugs to finance future supplies.  The identity of the people to whom he sold was irrelevant to the sentencing exercise.

The disparity point

13.      We turn therefore to the disparity point.  The principles applicable to an appeal based on disparity of sentence are now to be found conveniently summarised by Lord Bingham of Cornhill in the English House of Lords case of R (O'Brien) v Independent Assessor [2007] 2 AC 312 at [26], as follows:-

"In some cases (of which R v Fawcett (1983) 5 Cr App R (S) 158 is an example) an appeal against sentence has succeeded because right-thinking members of the public, learning of a lenient sentence imposed on a co-defendant, would think something had gone wrong with the administration of justice on also learning of a disproportionately severe sentence passed on the appellant.  In some of the cases such an appellant is said to have a justified sense of grievance.  If the matter is viewed through his eyes alone, that may sometimes be so.  But the appellate courts of all three United Kingdom jurisdictions have shown themselves to be, in varying degrees, resistant to disparity arguments of this kind, and the reason is not hard to discern.  For while the perception of the sentenced defendant is important, a criminal sentence is imposed in the interests of the public and for its protection.  The "right" sentence in a given case is that shown by statute, authority and other guidance to be best fitted to serve those ends.  Thus the court will, and generally should, be very slow to impose what it regards as anything other than the right sentence simply because it or another court has imposed a "wrong" sentence on a co-defendant.  The more usual approach is that very recently articulated by the Court of Appeal (Criminal Division) in R v Tate [2006] EWCA Crim 2373 at [20]:-

"The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a sentence on the appellant that would in our judgment be less than the facts of the case merit"."

14.      As the sentencing remarks quoted in paragraph 7 above make clear, the Royal Court approached the sentencing exercise by first taking what it regarded as an appropriate starting point.  On the basis that the amount of heroin imported was 197 grams (a figure obtained by extrapolating from the amount of money transmitted to England), the case fell within the 100 to 250 grams band which, under the sentencing guidelines identified by this Court in Rimmer, Lusk and Bade v AG [2001] JLR 373, should ordinarily attract a sentence of between 10 and 13 years' imprisonment.  In the case of both Armstrong and the applicant, the Court took a starting point of 12 years.  The applicant complained that there should have been a difference in the starting point taken for Armstrong and that taken for him, since Armstrong's record was worse than his.  However, the starting point recognises both the amount of drugs involved and the level of criminality in a defendant's involvement: the antecedents of the defendant are a matter to be taken into account, if at all, in mitigation.  The Deputy Bailiff was entitled to regard the applicant as "the main player in Jersey", as he described him in his opening remarks on sentencing; indeed, on the agreed facts, any other view was impossible.  Armstrong was equally to be regarded as the main player in England, and we do not see any basis for distinguishing between them in fixing the starting point.  The starting point of 12 years' imprisonment chosen was appropriate having regard to the amount imported and the criminality of Armstrong and the applicant, and we do not think it can be criticised.

15.      The Royal Court then proceeded to consider mitigation.  Both Armstrong and the applicant had pleaded guilty and so were entitled to, and were given, a one-third discount for their pleas.  As the Court recognised, there were different things to be said for and against each of Armstrong and the applicant.  Both had poor records, with some history of drug offences; but Armstrong's offences included supplying drugs, whereas the applicant - as the Court expressly recognised - had no record of drug dealing, only of possession.  It was the applicant's case that he had been trying to buy a property in England near where his wife was to be treated for a medical condition; and his concern on his arrest had been to protect his wife and ensure the safety of his pets.  He was described by Advocate Hopwood in mitigation as a victim of heroin who had not made any profit from his drug dealing.  Armstrong too was a heroin addict, and was described by his advocate in mitigation as "a naive drugs supplier who was at the lower end of any supply or distribution chain".

16.      It was the Royal Court's task to determine what weight should be given to these factors.  On the face of it, there was little to choose between Armstrong and the applicant beyond the fact that Armstrong had previous convictions for dealing and had initially been uncooperative with the police.  The Court expressly recognised these matters, but took the view that they were to be set against the fact that the applicant had involved his wife and Afonso in the conspiracy.  That seems to us to have been something that the Court was entitled to regard as an aggravating factor, leading to the conclusion that there was indeed nothing significant to distinguish the applicant's case from that of Armstrong.

17.      The applicant also complained that Afonso had received only three years' imprisonment as against the seven he received; but Afonso had sent money on only seven occasions, his reward being that he received one or two hits of heroin for his personal use, and the Deputy Bailiff was fully entitled to regard him as having a very limited involvement and to sentence him on that basis.

18.      In the end, the question is whether a right thinking person, hearing of the sentences imposed on the applicant, Armstrong and Afonso, would suppose that something had gone wrong with the administration of justice.  In our view, the answer to that question is an emphatic negative.  The sentence imposed on the applicant started from an appropriate starting point, and gave an appropriate discount for the guilty plea and for such personal mitigation as was properly available.  Viewed in isolation, the sentence is beyond criticism.  Both in setting the starting point and in dealing with mitigation, the Court considered whether there should be differentiation between the applicant and Armstrong and considered that there should not.  That reflects the view, which was amply justified by the facts, that there was in substance no real difference between the responsibility and circumstances of the applicant and Armstrong.  Afonso was in a wholly different category.  We do not think that the sentencing exercise can be faulted.

19.      The applicant pointed out that the Crown had put the case on the basis that this was not a complicated, complex or sophisticated conspiracy.  No doubt it was not: but it involved the importation into Jersey of significant quantities of heroin, and warranted a substantial prison sentence.  We see nothing wrong with the sentence imposed on the applicant, and accordingly dismiss his application for leave to appeal.

Authorities

AG v Armstrong and Others [2008] JRC 210.

Mendes v Attorney General [2003] JCA 106.

R (O'Brien) v Independent Assessor [2007] 2 AC 312.

Rimmer, Lusk and Bade v AG [2001] JLR 373.