Jersey Unreported Judgments

Application for leave to appeal against the sentence passed by the Superior Number of the Royal Court on 1st August, 2011.

[2011]JCA220

Court of Appeal

21 November 2011

Before     :

Sir John Nutting, Bt., Q.C., President; J. W. McNeill, Esq., Q.C., and; J. Martin, Esq., Q.C.

David Armstrong

-v-

The Attorney General

Application for leave to appeal by David Armstrong against the sentence passed by the Superior Number of the Royal Court on 1^st August 2011 following conviction on a charge of:

2 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.

Leave to appeal was refused by M. C. St. J. Birt, Bailiff, sitting as a single judge of the Court of Appeal on 20^th September, 2011.

C. M. M. Yates, Esq., Crown Advocate.

Mr Armstrong appeared as a litigant in person.

JUDGMENT

THE president:

1.        This is an application for leave to appeal to the Full Court a sentence of 6 years' imprisonment which was passed on this applicant, the single judge having refused leave.  The only ground of the application, dated 23^rd October, 2011 and drafted by the applicant, is that he did not receive full credit for his guilty plea in the Royal Court. 

2.        The applicant appeared before us in person.  In the light of that fact, and notwithstanding the limited nature of the ground of application, we thought it right to allow the applicant to develop any ground he wished in order to pursue his arguments to the fullest extent and so that we could consider the sentence passed on him against the relevant guideline cases, in the light of all the mitigation available to him and by comparison to the sentence passed on his co-defendant, Mohammed Abdul Shahnowaz. 

3.        Shahnowaz received a sentence of 7 years' imprisonment for the same two offences as those with which the applicant was charged.  Those offences were to the following effect; "Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999."  Both offenders were alleged, on the 14^th December, 2010, to have been knowingly concerned in the evasion, in Count 1, of the prohibition on the importation of heroin, and in Count 2 on the prohibition on the importation of cocaine.  The Crown asserted that there were in fact three men involved, a man called Abbo, who probably supplied the drugs in the United Kingdom, the applicant, who was the courier of the drugs to Jersey and Shahnowaz, who was the point of contact for the applicant once he had arrived in the Bailiwick. 

4.        The applicant is a man of 52 years and at the time of his arrest was living in Enfield.  Shahnowaz is now 37 years of age and at the time was living in St Helier.  An analysis of the applicant's mobile telephones, after his arrest, showed that both men had been in contact between the 10^th and 13^th December, 2010 with Abbo.  He came to be known as such by the Prosecution because the name "Abbo" was found in the index of the applicant's mobile telephone.  The regular communication between the three men continued on the 14^th December, the date of importation, up to the point when the applicant arrived at Gatwick Airport to catch a flight to Jersey. 

5.        He arrived in Jersey that evening and a Customs and Immigration Officer stopped him at the airport and spoke to him as he walked through the arrival's hall.  The applicant stated that he was in Jersey on business for a day or two regarding some land that a Mr Burns had purchased.  The Customs Officer advised the applicant of the prohibition and restrictions in force in relation to controlled drugs and the applicant stated that he had nothing to declare.  A search of his baggage was conducted.  Nothing relevant was found.  During further questioning the applicant said that he was in fact in Jersey on behalf of a man called Cable and that he was here to collect a debt owed by the man Burns.  He was carrying two mobile telephones and £125 in cash.  A swab of the telephones revealed the presence of cocaine, prompting the applicant to admit that he had used it recently, including the previous Thursday.  Shortly after 5:30pm, whilst the applicant was being detained in the arrivals hall, as revealed by subsequent analysis of calls to one of his mobiles, Abbo's number attempted to contact him. 

6.        The applicant was taken to a search room for the purposes of a strip search, but before the search proceeded the applicant told the officers that he would save their time in searching him.  He took down his trousers and produced two condom wrapped packages from the tight underpants which he was wearing.  The two packages contained a total of 132.5 grams of heroin and 13.7 grams of cocaine.  The heroin had a local street value of £132,000, with a wholesale value of between £20,000 and £33,000.  The cocaine had a local street value of between £750 and £1,120 and a wholesale value of between £450 and £560. 

7.        The applicant was immediately arrested and at the time when that was taking place, Shahnowaz's number attempted to contact the applicant by telephone, but the call was missed because the detention procedure was being carried out.  One minute after that missed call, Shahnowaz telephoned Abbo and spoke for a period of 85 seconds.

8.        After his arrest the applicant said to the Customs Officer "The things you do for money, there is no work around at home at the moment."  Shortly after 6 o'clock Abbo again tried to telephone the applicant to no avail.  In the meantime Shahnowaz continued to attempt to contact the applicant without success before again telephoning and speaking to Abbo's mobile several times. 

9.        The applicant was interviewed under caution.  He said that he had been offered £1,000 to bring the drugs into Jersey, but refused to give the name or the details of anyone else in relation to the importation, saying "I've got 10 children at home and I value their safety more than me doing 10, 20, 30 years in prison." 

10.      He appeared at the Magistrate's Court the following day when he pleaded guilty to the charge of importation.  He was remanded into custody.  On 30^th December, 2010, as a result of the telephone analysis to which we have referred, a search warrant was executed at Shahnowaz's address in Victoria Street, St Helier.  He was arrested on suspicion of being concerned in the importation of controlled drugs.  £1,037 in cash was seized from his address together with the following paraphernalia, a set of electronic scales, citric acid swabs, a syringe and needle, a roll of silver foil, a syringe wrapper and alcohol wipe wrapper, plastic wrapping, and a burnt spoon containing traces of heroin. 

11.      Shahnowaz was interviewed and admitted using between 1 and 2 bags of heroin per day at a cost of £50 a bag.  He said that he had not worked for a couple of years and was receiving £290 benefit per week, out of which he paid £165 towards his rent.  When questions were put to him in relation to the following topics, his association with the applicant, the importation of drugs into the Island, the person named Abbo and the mobile telephone communications between the three men, Shahnowaz made no further comment.  The next day he appeared in the Magistrate's Court and pleaded not guilty.  He too was remanded into custody. 

12.      On the 25^th February both men were indicted.  The applicant entered guilty pleas and was remanded for future sentence.  Shahnowaz entered not guilty pleas and was remanded in custody and a date for his trial set for 13^th June, 2011, with a pre-trial hearing in early May.  In fact at the pre-trial hearing Shahnowaz pleaded guilty to both counts on the Indictment.

13.      Both men have a substantial number of previous convictions.  Shahnowaz has six previous convictions comprising eleven offences.  Nine of those offences are drug related.  In July 2003 he received a sentence of 3½ years' imprisonment for possession with intent to supply drugs, and in 2006 he was sentenced to 4 years' imprisonment for an offence of attempting to import a Class A drug into this Bailiwick.  In accordance with the five judge case of Harrison v AG [2004] JLR 111, the Royal Court was plainly entitled to take those convictions into account as an aggravating feature of the case against Shahnowaz.  The applicant, on the contrary, although his record reveals twenty-four offences comprising forty convictions, had only one offence in his record relating to drugs and that was an offence involving the simple possession of cannabis in 1993. 

14.      A Social Enquiry Report had been prepared on the applicant in advance of the hearing on the 1^st August, when the matter came before the Deputy Bailiff and Jurats.  The report revealed that he had been brought up in what he described as a "rough area" of the East End of London.  His father died of a heart attack at the age of only 47 and his mother, now 76, lives with her partner who has terminal cancer.  The applicant told us today that sadly his mother's partner has only a matter of weeks to live.  From a young age the applicant hoped for a career as a boxer and undervalued formal education.  His father had started him boxing at the age of 4 and he began amateur fights at 11.  At the age of 16 he ended his formal education without sitting any exams.  Soon after that he started working as a doorman, but still nurtured his boxing ambitions.  He turned professional at the age of 18 and won the Southern Area Middleweight title in 1982.  However his career in boxing could not provide him with a living and he went on to hold a variety of jobs including running several public houses, owning and managing a cleaning company, undertaking work as a chauffer to the Mayor of Redbridge and also working as a bus driver. 

15.      Unhappily in 2001 the applicant was shot in the head in what he described to the probation officer as an attempted contract killing.  We need not condescend to the details of this tragic incident.  Suffice it to say that the applicant denies any involvement in the circumstances which led to the shooting.  The shooting has resulted in him being largely unfit for work since 2001 and subsequently he has worked only intermittently as a doorman and as a debt collector.  These are the jobs which, from his record, seem to have been his fallback position between other employments during the whole of the last 25 years.  The injury has left him with physical disabilities including hearing problems, problems with his balance and intermittent paralysis of some of his limbs.  According to a letter that we have seen from his current, albeit separated, partner, it is apparent that he is also subject to mood swings and irritability.

16.      The applicant has ten children aged between 33 and 14 and four grandchildren.  He has endeavoured to maintain his role as a father in his children's lives and the reference compiled by his eldest daughter Ami testifies to that.  Five of his children have visited him since his incarceration in HMP La Moye as has one of his ex-wives as well as his most recent partner. 

17.      At the time of the commission of the offences, the applicant was living alone.  Three months earlier his on/off girlfriend of 18 years had asked him to move out of the home which they shared and he had taken a bedsit.  He acknowledged to the Court that for sometime he had been depressed and apathetic and that this had strained his relationship with his girlfriend.  He was relying on Income Support and money from occasional night shifts as a doorman.  He had debts of several hundred pounds owed to friends and was struggling financially.  It is apparent that the opportunity to earn £1,000 for a drug trip to Jersey proved too tempting.

18.      The report concluded that the applicant was in fact at high risk of re-offending within the next 12 months and the Probation Officer justified this conclusion on several bases.  These included that the applicant had a long history of offending, that he had a complacent attitude towards law breaking, and that his choice of associates, his inconsistent record of employment and his instability in relationships and accommodation all increased the probability of further offences.  Indeed the applicant candidly acknowledged to the Probation Officer that in all likelihood he would re-offend although he was adamant to the officer and also to us that he will never again get involved in drug related crime.

19.      We have already indicated that the court below and this court was in the possession of a number of letters of commendation.  We have read them all.  We have already referred to letters from his daughter and from his partner.  But other letters include letters from friends, former employees and those who work in the gym in Canning Town which the applicant visits regularly to encourage young boxers.

20.      In the proceedings before the Royal Court the Crown moved to make recommendations that a starting point of 11 years was appropriate in respect of both offenders.  In relation to mitigation so far as Shahnowaz was concerned, the Crown pointed out that he had pleaded guilty, albeit at a fairly late stage.  Nonetheless the Crown encouraged the Court to recognize the value of the plea and suggested that Shahnowaz should be afforded a full one third reduction.  The Crown asserted that there was little other mitigation.  Plainly the offender Shahnowaz did not have the benefit of youth and, of course, he had previous convictions for serious drug offences.

21.      So far as the applicant was concerned, the Crown pointed out that he too could not pray in aid his age but the Crown acknowledged that his plea of guilty should stand him in good stead albeit that, in contrast to Shahnowaz, the applicant had little choice but to plead guilty.  The Crown acknowledged however his cooperation with Customs, his apparent remorse, his family dependants and (despite his fairly lengthy criminal record) the fact that he had no relevant drug convictions. 

22.      In its final conclusions the Crown recommended that there were no exceptional reasons to depart from the Royal Court's strict custodial sentencing policy in relation to drug trafficking offences and suggested that, taking account of the mitigation, Shahnowaz should be sentenced to 7 years' imprisonment and the applicant to the same.

23.      In his sentencing remarks the Deputy Bailiff said that the Court had decided to vary the Crown's conclusions by distinguishing the starting points for the two offenders.  In relation to Shahnowaz the Royal Court concluded that the appropriate starting point should be 11 years.  The Deputy Bailiff said this "We take into account the total amount of drugs by weight 145 grams or so."  That of course was the total of the heroin and the cocaine.  He continued on "We take into account the fact that there was an amount of drugs paraphernalia" (which he went on to describe) and he then said:-

"It is clear that that paraphernalia might be present were you simply a drug user, but it also consistent with being a drug trafficker.  We take into account that you have knowledge of the local scene.  We take into account that you have ensured that your mobile telephone is not available to the Police for inspection.  We take into account the fact that you sought to lie to us in a letter which you brought before the Court". 

I pause to explain that that was a letter in which Shahnowaz asserted to the Court that he was ignorant of the fact that the applicant was bringing drugs into the Island for him to distribute.  The Deputy Bailiff goes on:-

"And we take into account that you have two previous convictions for drug trafficking one in 2003 and one in 2006."

24.      So far as mitigation was concerned the Court emphasised that it was minded to give Shahnowaz a full discount for his guilty plea but emphasis that there was little other mitigation for which he deserved any credit.  In conclusion the Court sentenced Shahnowaz to the 7 year sentence to which we have referred.

25.      In relation to the applicant the Court decided to take a starting point of 10 years and the Deputy Bailiff justified it in this way.  He said:-

"This is reflective of the fact that there was a substantial amount of drugs, which would normally lead to a starting point of 11 years, but we think that your involvement was very minor in the importation, other than the importation itself, that you were not the person who was to be involved with distributing the drugs once they arrived in the Island and accordingly we draw that distinction between you and your co-accused." 

26.      In relation to mitigation the Deputy Bailiff said:-

"we do not think that you are entitled to a full discount for the guilty plea because that plea followed almost inevitably from the fact that the drugs were found on you.  But we have taken into account the fact that you have no previous drugs convictions apart from the conviction for cannabis possession which was a long time ago and that bears with us not at all.  We have taken into account the references which you have supplied, of course we have given you some discount for your guilty plea and for your cooperation with the customs' officers.  We have certainly taken into account the ill health which you have suffered since the shooting incident in 2001 and the delay which you have had to put up with whilst the stress of these proceedings for the last 8 months or so.  Rolling all those things together, we think the rights sentence is one of 6 years' imprisonment for each count concurrent and we sentence you accordingly."

The sentence passed represented a discount of 40% on the starting point which had been adopted by the Court for this applicant.

27.      In this application for leave to appeal the applicant, firstly laid stress on the fact, as he asserts, that he was not given full credit for his guilty plea.  Secondly he points to other cases where courts in this jurisdiction have sometimes given a full discount notwithstanding the overwhelming nature of the evidence against the offender.  Thirdly, he relies on the fact that he was ignorant of the nature of the drug that he was importing.  And finally he says that he was willing to give evidence against Shahnowaz a fact for which no credit was given to him. 

28.      We deal with his points in order.  So far as the discount or lack of a full discount is concerned for his guilty plea, the Crown point out that in the case of Campbell and Others [1995] JLR 136, a five judge court consisting of the Bailiff, the Deputy Bailiff and Judges of Appeal Le Quesne, Blom-Cooper and Lord Carlisle of Bucklow, this Court confirmed that "where a courier was found with drugs concealed inside him he was really caught in flagrante delitco and had no option but to plead guilty."  The Court reaffirmed the statement made by this court in Carter v AG 1994/192, in the following terms:-

"The court now turns to such mitigation as there is.  The applicant pleaded guilty to the indictment and for this he is entitled to a substantial discount.  In Clarkin and again in Wood this Court made a reduction of one third for the plea of guilty.  We accept that such a reduction is customary and in line with a well-established principle.  Nevertheless we take the view that such a reduction is in no sense an inflexible rule and the precise deduction in each case must depend on the circumstances in which the guilty plea came to be made.  In some circumstances the evidence will make a guilty plea all but inevitable but in other cases that may not be so." 

29.      The Crown also cited to us the case of Kelly v AG [2001] JCA 021, in which this Court said:-

"An analysis of [the authorities] demonstrates that courts in this jurisdiction have usually awarded a one third reduction for a guilty plea.  But it must be remembered that the extent of credit given for an acknowledgement of guilt will depend on the strength of the evidence.  A defendant who pleads guilty in reflection of overwhelming evidence will be given less credit than someone who has either by admissions provided evidence on which he is tried or who is willing to acknowledge guilt where the evidence is weak."

30.      What then was the strength of the evidence against this applicant?  We have no hesitation in agreeing with the approach of the Royal Court which concluded that the evidence was overwhelming.  In our judgment there is little distinction to be drawn between an offender who carries drugs internally and one who carries them externally albeit concealed in the vicinity of an intimate part of his anatomy.  The usual defence of plant or ignorance can avail an offender nothing if the drugs are concealed within a tight fitting pair of underpants.  Indeed in this case in reflection of the evidence, or potential evidence, available against him, once the applicant realised that he was going to be strip searched he saved the Customs Officers the trouble of discovering the drugs by producing them himself from their hiding place. 

31.      As to the second point made by the applicant the cases to which he referred were not in themselves guideline cases.  Facts and mitigation will differ from case to case, the latter depending upon a particular person or circumstances.  In the case of Rimmer and Others v AG [2001] JLR 373, another five judge court, this court said:-

"sentencing is a discretionary exercise in every case and the reports do not include every feature which influence the Court in exercising its decision on earlier occasions. 

We note a tendency, particularly in appeals against sentencing drug related cases, to try to calculate the exact effect given by the Court in earlier cases to each factor and then to say that those effects must be reproduced in the case in hand.  This is a misleading exercise ... which if it could be achieved, would be inconsistent with the discretionary nature of the sentencing function. 

The Court went on:-

"It is therefore of limited utility to refer to decisions, particularly those of courts sitting at first instance, which are (or should be) applying those guidelines to the cases before them.  Not only do such cases turn substantially on their own facts, the facts themselves available and taken into account by the Court may not always appear on the face of the judgments, and a read across from one set of facts to another is often a vain exercise." 

32.      The applicant's third point was that he was ignorant of the precise nature of the drugs which he had been asked to carry.  He made this point to a Probation Officer and so it was before the Royal Court.  However, the applicant must appreciate that generally speaking neither the Royal Court nor this court will take ignorance into account as a factor in mitigation.  As was said in Campbell, a case to which we have already made reference, the Bailiff giving the judgment of the Court said this at paragraph 35 of his judgment:-

"In our judgment a courier who knowingly transports illegal drugs must be taken to accept the consequences of his actions.  As the Attorney General put it "The moral blameworthiness is the same whatever the nature of the drugs transported".  Furthermore viewed from the perspective of the community the evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug.  There may be very exceptional circumstances in which a genuine belief of a different drug has been carried might be relevant to sentence but in general we endorse the Royal Court's view in the case of Campbell that an erroneous belief as to the type of drug being carried is not a mitigating factor."

We have found no reason to make an exception to that general rule in this case by allowing the applicant any credit, or permitting to be a factor in mitigation of his offence, that he believed that he was transporting a Class B drug to the Island. 

33.      The fourth point made by the applicant concerned his willingness to give evidence against Shahnowaz.  It is right to say that in interview he declined to provide any information concerning the origins of the drugs in England or their destination within the Island, as we have already reported.  He gave reasons for his reluctance to assist, such reasons being very familiar to the judges of this court, including fear of reprisal for himself or his family.  However, he told us that once Shahnowaz had been arrested at some stage in the period between January and May 2011 he had told his advocate that he would be prepared to testify against Shahnowaz.  Events however, overtook that willingness, because in the latter month Shahnowaz pleaded guilty before the applicant's advocate had had a chance to communicate the applicant's willingness to the Crown.  Thus the Crown remained in ignorance of it.  This point is part of the general point which was clearly before the Royal Court and which they took into good account, namely the cooperation which the applicant showed towards the Customs Officers and towards the Court once he had produced the drugs from his trousers on 14^th December.  We are not persuaded that this aspect of his mitigation adds very much, if anything, to the general point that from an early stage the applicant was cooperative, took the earliest opportunity to plead guilty and ever since has expressed remorse for his involvement. 

34.      It is, as we say, apparent that the Royal Court had these matters well in mind in passing the sentence which they imposed.  We have considered all the applicant's points.  We have tested the 6 year sentence against the guideline cases to which we should pay heed.  We have considered the mitigation available to the applicant and the 40% discount for those matters which the Royal Court put into the scales in the applicant's favour and which the Deputy Bailiff itemised in his sentencing remarks.  We have compared the sentence on the applicant to that passed on Shahnowaz, notwithstanding that the disparity was plainly in the applicant's favour.  We have reminded ourselves of the obligation to interfere with a sentence of the Court below only in circumstances where that sentence is wrong in principle or manifestly excessive.  The sentence of imprisonment in this case was plainly neither wrong in principle, nor do we consider that it was excessive.  Indeed, we feel bound to say that we regard it as having been the right sentence in the circumstances of this case. 

35.      In our judgment the Royal Court took due account of every matter of which they were bound to take proper account and did not take account of any matter which they should have excluded from their consideration.  In the circumstances therefore this application must be refused.

Authorities

Harrison v AG [2004] JLR 111.

AG v Armstrong and Shahnowaz [2011] JRC 152.

Campbell and Others [1995] JLR 136.

Carter v AG 1994/192.

Kelly v AG [2001] JCA 021.

Rimmer and Others v AG [2001] JLR 373.