Jersey Unreported Judgments

[2011]JCA024

COURT OF APPEAL

25^th January 2011

Before     :

Jonathan Sumption, Esq., O.B.E., Q.C., President; Dame Heather Steel, Q.C., and; Sir Geoffrey Rowland, Bailiff of Guernsey.

Christopher Samuel Whitelaw

-v-

The Attorney General

Appeal against sentence passed by the Royal Court on 20^th October 2010 on:

1 count of:

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

Leave to appeal was granted by M. C. Birt, Q.C., Bailiff, sitting as a single Judge of the Court of Appeal on 22^nd November 2010.

R. J. MacRae, Esq., Crown Advocate.

Advocate M. Haines for the Appellant.

JUDGMENT

Steel ja:

This is the judgment of the Court.

1.        On 20^th October 2010 in the Royal Court of Jersey (Commissioner Clyde-Smith and six Jurats) the Appellant, who is aged 33, was sentenced to 8 years' imprisonment following his plea of guilty to :

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

He appeals against that sentence by leave of the single judge. 

His co-defendants, who had pleaded guilty to the same offence were sentenced as follows:-

Alan Hudson, aged 40, to 8 years' imprisonment;

William Prentice, aged 36, to 8 years' imprisonment;

Mark Hutchinson, aged 29, to 5 years' imprisonment;

each from a starting point of 15 years. 

2.        The four defendants each pleaded guilty to conspiracy to import 1,959 grams of cocaine, with a street value of £156,000, the largest ever seizure of cocaine by the Jersey police.

The facts

3.        On 24^th June 2009 Hutchinson travelled by boat to Jersey in a Ford Transit van.  The van had been purchased in his name on 12^th June for £1,200 from Swales Forest Van Sales near Glasgow.  Hutchinson told a customs officer that he was coming to Jersey to seek employment. He had not contacted anyone in advance and claimed that he knew no one in Jersey. The steering wheel of the van and his mobile phone tested positive for cocaine but a standard search of the van revealed nothing.  The van was placed under surveillance and Hutchinson arrested the next day by the van in St Aubin.  A full search revealed two packages of cocaine deeply secreted in the chassis rails of the van in a purpose made compartment.

The police carried out a detailed analysis of Hutchinson's mobile phone from which it became apparent that the Jersey contact for this operation was William Prentice, who had also been under surveillance and was arrested. There was no direct contact shown between Hutchinson and Prentice.

4.        Further examination of these and other call records revealed the involvement of Alan Hudson and Christopher Whitelaw, the Appellant, both residents of Lanarkshire near Glasgow.  Telephone records showed that each of the defendants had access to different mobile phones, often not registered to anyone. Hudson had access to numerous phones. Twenty phones were seized. The records showed no contact between Hutchinson and Hudson although one of Janet Hudson's numbers (Hudson's wife's) is saved by Hutchinson as 'Big Al'.  There were hundreds of contacts between Hutchinson and the Appellant.  There are calls from Hudson to the coach builders where the packages were concealed both before and after the van was purchased. The phone records were all charted and collated.

5.        The 12^th June record shows over thirty calls between the defendants and on 24^th June, Hudson attempted to contact Hutchinson no less than six times.  This contact was attempted on a phone described as Hudson's 'dirty' phone which was found to record links between all four defendants.

6.        Hudson telephoned all three of the Appellant's phones on the day of importation. On the day of importation there is a call from Hutchinson to the Appellant from a pay phone, answered by a three minute call from the Appellant who then telephones Hudson for one minute 52 seconds.  Hudson then telephones Prentice using two different phones.  Shortly afterwards Hutchinson rings the Appellant who calls him back in a pay phone.  The Appellant calls Hudson.  Hudson then texts Prentice asking him to contact him and at 16.10 that day sends a text to Prentice which reads 'in gym 4n me at 7.30 that job came off sailed thank fuk men on building site flat out poor cunts are cheap labour though thanks for contact.'

7.        The investigation of the telephone records was lengthy and meticulous, and on 11^th March 2010 Hudson and the Appellant were arrested at their homes in Scotland and transported to Jersey where they were charged on 12^th March.

8.        On 26^th July, in the Royal Court, Prentice was given leave to withdraw his not guilty plea and he pleaded guilty to the indictment.

9.        On 27^th July, in the Royal Court, Hudson and the Appellant were given leave to withdraw their not guilty pleas and each pleaded guilty to the indictment.   The Appellant signed a basis of plea document which reads;

"That Mr Whitelaw knew that illegal drugs were to be imported to Jersey in a van.  Mr Whitelaw was invited to play a part in this importation to Jersey.   Mr Whitelaw was asked to be the telephone man to receive messages and to pass those messages on to another.  Mr Whitelaw did use telephones to receive calls and to pass those messages on to another with the knowledge that he was involved in the importation of illegal drugs into Jersey in June 2009."

The trial of Hutchinson was fixed for 11^th October 2010.

10.      In a statement provided to the Crown Advocate, dated 10^th September 2010 the Appellant sought to implicate Hutchinson in the offence and offered to testify in court against him.

11.      On 27^th September in the Royal Court, Hutchinson was given leave to withdraw his not guilty plea and he pleaded guilty to the indictment.

The Royal Court Hearing

12.      The Crown outlined the facts and described the offence as a highly professional and sophisticated importation of approximately 2 kg of cocaine. The Crown expert DC Angell described a "very small proportion of importations employing sophisticated techniques ... where a vehicle or vessel entering the island has undergone specific adaptations in order that the drugs are protected from all but the most thorough search, requiring some level of disassembly or even destruction of the vehicle or vessel in question to facilitate recovery."

13.      The Crown stated that each defendant in this case had a specific role in the importation from the point of concealment in Glasgow to its importation and distribution to those who would have ultimately sold it on the streets of Jersey.

14.      Social Enquiry Reports were provided for each defendant.  The Report on the Appellant is by Chris Langford and dated 13^th October 2010.

The Appellant also supplied a number of character references to the Court.

15.      The Court was referred to the following authorities: Rimmer v AG [2001] JLR 373, Durkin and Howard v AG [2005] JLR 12, AG v Carter, Allan and Hume [2005] JRC 051 and Hamilton and Owens v AG [2010] JCA 136A.

16.      The Crown moved for the following starting points and sentences to accommodate the aggravating and mitigating features available to each defendant:

Hudson: a sentence of nine years' imprisonment from a starting point of 16 years' imprisonment

Hutchinson: a sentence of seven years' from a starting point of 14 years' imprisonment

Prentice: a sentence of nine years' from a starting point of 16 years' imprisonment

Whitelaw: a sentence of eight years' from a starting point of 15 years' imprisonment.

17.      The Crown described the Appellant as a key part of the firewall, someone who acted as go between, clearly someone to be trusted and someone who could assist Hudson to ensure that this importation was a success.  He may be treated as a man of good character and is entitled to full credit for his plea.  He was also co-operative in that recently he provided a statement against Hutchinson and indicated a willingness to give evidence if required to do so.  He is entitled to further credit for that.  The statement itself was not of great value, and was not, it appears, influential in Hutchinson's decision to withdraw his plea of not guilty and enter a guilty plea.

In this context the Court was referred to AG v Robinson and Ely [2006] JRC 106, Davey v AG 13^th November 2002, 2002 /217A and AG v Trinidade 20^th July 2000, 2000/141.

The Crown indicated that the Appellant's conduct deserved to be reflected in his sentence.  The Crown had noted and taken account of the content of the Social Enquiry Report and the letters provided by the Applicant's family.

18.      In sentencing the Appellant the Court took into account his plea and good character and went on to state: at paragraph 7:-

"Mr Haines has also submitted that he was co-operative in that he recently provided a statement against his co-accused Hutchinson and indicated a willingness to give evidence if required.  It is the policy of this Court to reward such co-operation as it said in the case of AG v Robinson and Ely:

"The really important factor in your case is that you said you were willing to give evidence against your co-accused and made a statement, and the court has repeatedly said that where offenders are willing to give evidence against others in the drugs world and help bring them to justice, the court will give a considerable deduction from the sentence to reflect that, and to encourage others to do it."

And we endorse those comments.

"8.  However, the key word is the reference to justice.  In the view of this Court the statement signed by the defendant is quite irreconcilable with the formal basis of his plea and his admitted role, attempting to place, as it does, almost the entire responsibility of this importation on the defendant Hutchinson.   In our view the interests of justice would not be served if that evidence had been given in Court and it should therefore receive no credit."

19.      Leave to appeal was granted on the single ground that it is reasonably arguable that the Royal Court should have allowed some credit for the Appellant's statement and expressed willingness to give evidence.

20.      Advocate Haines renewed his application for leave to appeal the sentence on a second ground of disparity.  We refused that application as we were not persuaded that ground  was arguable.

21.      Advocate Haines submitted, with brevity and clarity, that the Court was wrong in principle in that no discount was afforded to the Appellant to reflect his statement of 10^th September 2010 and his willingness to give evidence against Hutchinson. The Court erred in failing to concur with the Crown's invitation to accord to the appellant some credit for the provision of that statement.

22.      The statement was sent to the Crown on 13^th September 2010 and was disclosed to Hutchinson's Counsel as unused material.

23.      Advocate Haines submitted that by making that statement the Appellant was placing himself at risk within the prison system, as well as exposing himself and his family to risk.  He was able to give crucial evidence of Hutchinson's knowledge of the concealment of the drugs in the van and was prepared to subject himself to cross examination. The statement was made in good faith and this is not a case where the statement is of no value.  It was not submitted that the statement was the sole or principal reason for Hutchinson's change of plea. It was not in issue that the Crown had a strong case against Hutchinson and the Crown had submitted that the statement was not influential in that change of plea.

24.      Advocate Haines contended that the Appellant should have been given a considerable discount to reflect the making of the statement and his willingness to give evidence.

25.      The Court was referred to the case of Neil Anthony Davey v Attorney General 2002/217A which concerned unsupported information supplied by a defendant and where the information was said to be 'of no assistance,' and for which the Assistant Magistrate had given some unspecified discount  for that, coupled with eight guilty pleas.  The Court reviewed the authorities including R v A and B [1999] Cr. App. R. (S) 52 and the words of Lord Bingham which include 'Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal;' and the Royal Court concluded at paragraph 19 that ' ... The Court must proceed on the basis that the information is unreliable, uncertain and lacking in practical utility. In the circumstances no discount in sentence is therefore called for, and to the extent that he gave any discount, the Assistant Magistrate erred on the side of generosity.'

26.      Each case will depend on its own facts.  It is for the sentencing Court to assess the value of the information and the extent to which discount is appropriate, if at all, having regard to all the circumstances.

27.      We accept the oral and written submissions of Advocate MacRae for the Crown. It was accepted by the Royal Court that the statement provided by the Appellant was irreconcilable with the formal basis of his plea and his admitted role.  Advocate MacRae submitted that although the Crown did invite the Court to give some credit for the Appellant's willingness to give evidence on behalf of the Crown, the Royal Court was entitled to form the view that no credit was due because of the content of the statement.  The information provided was inconsistent with the evidence, was notable for what is omitted and could only be regarded as unused material.  The prosecution could not consider the Appellant as a witness for the Crown. The statement had no practical utility.

28.      We are not persuaded that the Royal Court erred in principle in concluding that the Appellant should receive no credit for his statement.

29.       It was essentially for the Court, which had all the information relevant to the offence and to each defendant, to evaluate that information, including the value of the Appellant's statement and for the Court to determine whether a discount was appropriate.  The Court considered all the relevant authorities and decided no credit was due.  We endorse both that finding and the sentence passed as entirely appropriate for the Appellant's admitted part in this serious offence.

30.      This appeal is therefore dismissed.

Authorities

Customs and Excise (Jersey) Law 1999.

Rimmer v AG [2001] JLR 373.

Durkin and Howard v AG [2005] JLR 12.

AG v Carter, Allan and Hume [2005] JRC 051.

Hamilton and Owens v AG [2010] JCA 136A.

AG v Robinson and Ely [2006] JRC 106.

Davey v AG 13th November 2002, 2002/217A.

AG v Trinidade 20th July 2000, 2000/141.

Neil Anthony Davey v Attorney General 2002/217A.

R v A and B [1999] Cr. App. R. (S) 52.