Jersey Unreported Judgments

Criminal - application by the appellants seeking leave to appeal sentence imposed by the Inferior Number on 5th January, 2012.

[2012]JRC131

Royal Court

(Samedi)

(Exercising the appellate jurisdiction conferred on it by Article 22 of the Court of Appeal (Jersey) Law 1961.)

6 July 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan, Fisher, Nicolle, Olsen and Liston.

Andrew Scott Page

David Anthony Childs

Michael James Keane

-v-

The Attorney General

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. J. Haines for Page.

Advocate R. Tremoceiro for Childs.

Advocate R. C. L. Morley-Kirk for Keane.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The appellants sought leave to appeal against a sentence imposed by the Inferior Number of the Royal Court (Birt, Bailiff sitting with Jurats Le Breton and Marett-Crosby) on 5^th January, 2012.  With a fourth co-accused, Tucker, who has not entered any notice of appeal, the appellants were charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class C controlled drug, benzylpiperazine (BZP), contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  Page was sentenced to a term of three years' imprisonment.  Keane was sentenced to two and a half years' imprisonment and Childs to a term of two years and eight months' imprisonment.  In each case the sole ground of appeal was that the Inferior Number of the Royal Court took a manifestly excessive starting point of four and a half years' imprisonment before making allowances for personal mitigation and arriving at the sentences which were in fact imposed. 

2.        The defendants were sentenced for a single count of smuggling a commercial quantity of BZP into Jersey on 7^th June, 2011.  There were 4,727 tablets involved with a potential street value in Jersey of £47,270.  The Crown did not seek to distinguish the involvement of the three appellants in the operation, nor their importance in the chain of supply.  The fourth co-accused, Tucker, acted as the mule, personally bringing the tablets into Jersey in a rucksack. 

3.        Page arrived in Jersey on 2^nd June as a foot passenger on a ferry from Weymouth.  He travelled with his girlfriend and the two other appellants, before having booked their ferry crossings using the same email address the day before.  The Crown's contention was that it was Page's job to put the funds in place to buy the drugs and to manage their safe receipt and delivery in Jersey once imported.  Page remained in Jersey on arrival on that ferry until his arrest five days later. 

4.        This crossing was in effect a dry run to assess the risk of interception by law enforcement agents.  In fact both Childs and Keane were stopped by Jersey Customs shortly after disembarking, arrested and searched on suspicion of drug offending.  They were later released without charge as no drugs were found on them, and they both returned to Weymouth on 4^th June, knowing that they were not safe to act as couriers. 

5.        On 4^th June, Page sent a £400 money gram to Childs, who by this stage was back in Liverpool, through a known associate.  This money gram was part payment for the consignment which was to come.  On 7^th June, Childs and Keane drove with the drugs down from Liverpool overnight.  They had two other friends with them, who were used as additional decoys to draw attention away from the co-accused Tucker.  With Page's knowledge, Childs and Keane picked up Tucker in Portsmouth, and they then drove to Weymouth where they had booked in as foot passengers on the fast ferry to Guernsey and Jersey.  Tucker had brought with him a Social Security letter addressed to Page together with a Giro cheque for him, and this was later recovered by Police from Tucker's rucksack together with the drugs.  Once in Weymouth, Childs and Keane acquired new clothes for Tucker to wear, in place of his existing rather dishevelled attire.  This was part of the plan to make him appear respectable and innocuous.  At Weymouth, Tucker split from the rest of the group.  He boarded the ferry separately and he kept apart from Childs and Keane.  The latter two were again stopped and searched when boarding the ferry in Weymouth.  The success of the scheme to that point was clear, as Tucker was not searched. 

6.        The plans unravelled when the defendants were arrested outside de Quetteville Court, where Page had been staying with an associate.  The rucksack was seized from Tucker and the drugs, letter and cheque made out to Page were found inside. 

7.        Page's role and involvement was asserted by him, and this was unchallenged by the Crown, to be as follows: -

(i)        Others arranged for Tucker to bring the drugs to Jersey, but Page did have knowledge of this. 

(ii)       Page arranged on behalf of another to send £400 to Childs by money gram, knowing that the money was to be used for this importation. 

(iii)      In conjunction with others, they arranged for Tucker to make his way to Toddy's Bar. 

(iv)      Page met the other co-defendants at the ferry terminal in order to chaperone them to Toddy's Bar. 

(v)       Page was to facilitate the delivery of the drugs to a third party by procuring Tucker to bring them to a flat in St Helier where he, Page, had been staying whilst in Jersey. 

(vi)      Page was not going to benefit financially from the importation to any greater extent than Childs and Keane. 

(vii)     Page was acting as a facilitator for other and bigger players. 

8.        Following their arrest, the defendants appeared before the Magistrate on 10^th June.  They were committed to the Royal Court and indicted on 23^rd September, 2011.  On that occasion, Childs, Keane and Tucker all pleaded guilty.  Page pleaded not guilty and his case was adjourned for trial.  After a pre-trial directions hearing on 24^th November, Page changed his plea to one of guilty.  The pleas which were entered, in Page's case somewhat belatedly, put right the lack of co-operation at the time of the interviews of the defendants under caution, when all denied any involvement with the drugs. 

9.        Page was 32 at the date of sentence.  He had 218 previous convictions dating back to 1990, of which three involved possession of drugs.  Childs was 28 at the date of sentence, and had 73 previous convictions, including two convictions in 2002 for conspiring/supplying a Class A controlled drug, namely cocaine.  Keane was 25 at the date of sentence, and had 10 previous convictions, none of which were for drug offences. 

10.      Before the Royal Court, the Crown's approach was that the amount of tablets fell within the top band identified in Bonner-v-AG [2001] JLR 626 and therefore attracted the statutory maximum sentence as a starting point.  The Crown therefore took in respect of each defendant a starting point of five years before moving conclusions which were three years and four months' imprisonment for Page and three years' imprisonment for each of Childs and Keane.  As was noted by the Royal Court, this approach was in error because it assumed that the maximum sentence in Bonner and Noon-v-AG was 14 years' imprisonment.  In fact the maximum sentence was life imprisonment for that offence, and the starting point was 14 years and upwards for 5,500 tablets and over.  Furthermore of course the present case involved a lower number of tablets than 5,500 which, even if the rest of the approach had been correct, would not have put this case into the maximum bracket. 

11.      When passing sentence, the Court agreed that no distinction should be drawn between Page, Childs and Keane in respect of their degree of involvement and responsibility.  Furthermore, the Bailiff noted that the Crown's approach in terms of starting point was not correct and, importantly, he added that: -

"In any event, we do not think that one can read across from Class A sentencing levels to Class C in such a direct manner." 

12.      After a review of three cases - AG-v-Munro [2011] JRC 121, AG-v-Allman-Jones [2010] JRC 230A and AG-v-Spinola [2010] JRC 100 - none of which were considered to be very helpful in this respect, the Learned Bailiff then continued: -

"In our judgment the maximum sentence must be reserved for a more serious importation, although that is not to accept the argument put forward by defence counsel that one can always think of something more serious than the offence currently before the Court and therefore, in effect, can never impose the maximum sentence.  There comes a time when offences are serious enough to justify the maximum even if one can envisage something more serious which would also justify the maximum." 

13.      The Court took as the correct starting point for Page, Childs and Keane a period of four and a half years' imprisonment. 

14.      The appellants' counsel all contended that the Court wrongly took that starting point and that when one applied the personal mitigation, it followed that the sentences must be reduced.  Advocate Haines said that while he was not able to provide the Court with a table of proposed starting points, he thought a starting point should have been taken at two to three years imprisonment in respect of his client, with a consequent reduction in sentence.  The legislature had set down the maximum sentences for importation offences involving Class C drugs, and the Court was bound by those levels.  In his submission, there had to be some methodology in terms of sentencing and the Court below was right to adopt something equivalent to the Class A/Class B sentencing approach of using starting points.  It was just that the Court got the starting point wrong. 

15.      For Childs, Advocate Tremoceiro pointed out that the Magistrate's Court frequently retained jurisdiction in Class C drug cases, which was the explanation for such few cases providing a precedent in the Royal Court.  He too contended that there should be a system of starting points and that the case of Allman-Jones showed that the right starting point in that case was three years imprisonment and that would be a maximum starting point to take here. 

16.      In particular, Advocate Tremoceiro contended that the approach which sets a starting point at four and a half years imprisonment for the current offence left the Court with no room for appropriate sentencing of a person with 20,000, 30,000 or 50,000 BZP tablets.  In all the circumstances the sentence was manifestly excessive. 

17.      In her submissions, Advocate Morley-Kirk put a different slant on the same basic point.  She submitted that the Royal Court had clearly followed the same pattern in the Class C drug cases which had come before it - in fixing a starting point emphasis has been placed on weight and/or quantity, on sale value and on the role which the accused had performed.  She did not advocate comparison between different classes of drug.  This was only a Class C drug.  Because there were relatively few cases, she contended that it was difficult to set guidelines at this stage, but nonetheless she asserted that the Court had an obligation to be consistent on the basis of the information which it had. 

18.      In his submissions on appeal, Crown Advocate Jowitt did not advocate sentencing by reference to sale values, which he said were not a basis for consistency, because prices went up and down.  In his submission, when the States have allocated only 5 years as the maximum sentence, a table of fixed guidelines for starting points becomes difficult.  He agreed that one had to treat previous cases where sentences were imposed for Class C drug offences concurrently with sentences imposed on Class A and/or Class B drug offences, with caution.  His central submission was that the question for the Superior Number was whether the lower court's sentence was manifestly excessive, and the question was not the identification of the starting point.  This was a carefully planned importation of Class C drugs - a sophisticated commercial importation of drugs worth nearly £50,000 by three persons all of whom had extensive criminal records.  His point was a short one.  It could not be said that the sentences were manifestly excessive. 

Discussion

19.      It is right to state immediately that the Court considered that the discussion around starting points was a substantial discussion which merited leave to appeal being given, and accordingly such leave was given. 

20.      The question of starting points in relation to trafficking in Class C drugs is not one which has previously troubled an appellate court in this jurisdiction.  It is appropriate to note straightaway that the Court of Appeal in AG-v-Campbell [1995] JLR 136 reviewed a number of sentencing decisions of the Royal Court as well as of that Court, and having mentioned the issue of starting points, cited Clarkin-v-AG [1991] JLR 213, then said this: -

"The Attorney General informed us that this approach had been very helpful and indeed had been adopted both by the Crown in moving conclusions and by the Royal Court in passing sentence in many subsequent cases."     

21.      The Court of Appeal in Campbell then went on to set a series of detailed starting points for drug trafficking in the Class B drug cannabis, making it plain that analysis by weight would not be appropriate for trafficking in amphetamines, normally dealt with, of course, in tablet form. 

22.      In relation to sentencing policy for drug trafficking offences, the Court said this at page 144: -

"We have no doubt that the courts should indeed play their part in suppressing the evil of drug trafficking which has the capacity to wreak havoc in the lives of individual abusers and their families.  Lord Lane, CJ in R-V-Aramah referred in the context of Class A drugs to the "degradation and suffering and not infrequently the death which the drug brings to the addict" (4 CR. App. R. (S) at 408-409).  Sadly the lives which are blighted by the abuse of drugs are usually young lives.  We agree that circumstances have changed since this Court issued its guidelines in Clarkin in 1991.  The courts cannot by themselves provide a solution to the problem but they can play their part by adopting a sentencing policy which marks the gravity of the crime.  We desire therefore to make absolutely clear what is the policy of the courts in this jurisdiction in relation to the sentencing of offenders who import or deal in drugs on a commercial basis.  That policy is that offenders will receive condign punishment to mark the peculiarly heinous and anti-social nature of the crime of drug trafficking." 

23.      The question of setting bands of starting points in Class A drug trafficking cases was considered by the Court of Appeal in Rimmer-v-AG [2001] JLR 373 (dealing with Class A drugs where the quantity could be measured by weight) and Bonner and Noon-v-AG [2001] JLR 626, where the quantity could be measured by the number of tablets.  In both cases the sentencing rationale which was expressed by the Court of Appeal in Campbell was adopted.  Although the consequences of the use of Class C drugs are not generally so serious as those related to the use of Class B or Class A drugs, the extract from Campbell which is cited above reflects in our view the right approach which the Royal Court should take to sentencing offenders guilty of drug trafficking for commercial purposes in Class C drugs as well as in Class A and Class B drugs. 

24.      That is not to say however that the Court should necessarily find an appropriate table of starting points in the case of Class C drugs.  There are these objections to doing so. 

25.      First of all, there have not been many sentencing decisions on drug trafficking in Class C drugs.  This is a material difference from the position which faced the Court of Appeal in the case of Campbell, and indeed had faced previous Courts of Appeal in cases such as Clarkin.  The problem is exacerbated by the fact that it is rare that there have been cases in the Royal Court involving trafficking in Class C drugs alone. 

26.      The cases which have been referred to us start with the case of AG-v- Spinola [2010] JRC 100.  In that case the defendant was to be sentenced by the Superior Number of this Court on three counts of possession of a controlled drug with intent to supply and four counts of possession of a controlled drug.  The most serious count was that of possession of cocaine with intent to supply - in terms of value, the most valuable drugs were BZP/TFMPP tablets which had a street value of £62,840.  Applying AG-v-Rimmer, the Court took a starting point of seven years in respect of the possession of cocaine with intent to supply and imposed a sentence of four years imprisonment on that count.  Insofar as concerned the BZP/TFMPP tablets, the Court noted the street value of the drugs was somewhere between £62,000 and £82,000 and imposed a sentence of three and a half years imprisonment.  In the case of AG-v-Allman-Jones [2010] JRC 230A the accused faced three counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug - two counts involving cannabis and one count involving 18,938 tablets of BZP/TFMPP with a street value of £189,380.  The Crown took a starting point in relation to the cannabis importation of 10 years, which was uplifted by one year applying the Valler principle given that there was the importation of the BZP/TFMPP tablets at the same time, and the Court endorsed that approach.  The result was a sentence of six and a half years imprisonment in respect of the importation of a substantial amount of cannabis, and in relation to the importation of the Class C drugs the Court said this: -

"In relation to Count 5 we think the sentence moved for by the Crown was too high because the maximum sentence for Class C drugs is five years imprisonment and we therefore sentence you to three years imprisonment concurrent."     

27.      In both these cases, the Court did not allocate specifically a starting point to the sentence which was adopted for trafficking in Class C drugs. 

28.      In the case of AG-v-Munro [2011] JRC 121, the defendant had pleaded guilty to obstruction of a police officer in the execution of his duty, two counts of possession of a controlled drug and one count of possession of a controlled drug with intent to supply.  The latter involved a quantity of 1,571 BZP tablets.  The Court said in that connection: -

"The Court has not yet had to deal frequently with charges of Class C drugs with intent to supply but we note that the States have legislated for a maximum sentence of five years imprisonment and we think therefore that in principle the offence crosses the custody threshold.  In other words, the probability is that with offences of this kind the Court will pass a custodial sentence.  In our view this case clearly passes the custody threshold not just for the amount of BZP tablets involved but also the number of offences, the fact that there are these three sets of offences.  ... given the maximum sentence of five years imprisonment we think an appropriate starting point here would be two years rather than the three years which the Crown has moved for...,"

and a sentence of one year's imprisonment was imposed on that charge. 

29.      Finally we were referred to AG-v-MacKenzie and Richards [2011] JRC 173A, where two cases were heard simultaneously because they raised similar issues in relation to the correct approach to be taken on what has been described as the Valler uplift, and on sentencing on a charge of possession with intent to supply when the nature of that supply is said to be described as a "social supply".  MacKenzie faced a charge of possession of 30 ecstasy tablets with intent to supply and a charge of possession of 7,391 diazepam tablets with intent to supply.  The latter was a Class C drug, and the tablets had a street value of £1 per tablet giving an overall street value of £7,391. 

30.      Richards was found in possession of 47 ecstasy tablets and 917 diazepam tablets, both with intent to supply.  In neither case did the Court apply a Valler uplift.  In neither case did the Court identify a separate starting point in relation to the possession of diazepam tablets with intent to supply.  In the case of MacKenzie, a sentence of two years imprisonment concurrent on the Class C drugs charge was imposed, and in the case of Richards a sentence of 15 months imprisonment concurrent was imposed. 

31.      Like the Court below in this case, we do not think that there is much assistance to be gained from these sentencing decisions.  They do not present a common factual matrix and in the majority of the cases the trafficking in Class C drugs was not the most serious offence and the reasons for the sentence imposed were therefore not fully set out.  It is clear that the Court in at least two of the cases paid specific regard to the maximum sentence of five years for trafficking in Class C drugs.  Nonetheless, there is no established track record of sentencing for trafficking in Class C drugs. 

32.      Secondly, if we are to say that the starting point in the instant case was correct, and indeed even if we are to say that it was incorrect but a particular different starting point should have been adopted, we should, so it seems to us, attempt to set out what a table of starting points might have been.  However, one difficulty in doing so is that we have no evidence before us, scientific or otherwise, as to the prevalence of offending in Class C drugs, the effect of Class C drugs on the health of the taker of them, the variations in street value, or indeed any other potentially relevant factors.  All we have is the detail of the number of tablets and the present street value and estimated profit which might be made, and the maximum sentence which the States have adopted for this particular offence.  Even so, we gave preliminary thought to what such a table might look like.  It soon became very apparent that the effect of a relatively low maximum sentence would be that the sentencing bands would have to be very wide in terms of the quantity of tablets or alternatively there would have to be a very great number of sentencing bands for relatively small differences in the quantity of tablets.  The Bonner table does not translate easily into Class C drugs, and indeed we are not clear that the highest band would be fixed in the same place for such drugs.  As to the past sentences which had been imposed by the Royal Court for trafficking in Class C drugs, we did not see that the imposition of bands and starting points could possibly be said to be "very helpful" as was noted to be the position in Campbell.  We reached the conclusion that the system of using starting points, which has been successfully applied for the purposes of consistency in sentencing in Class A and Class B drug trafficking offences was not one that, at the moment, commended itself to us in relation to Class C drug trafficking. 

33.      Of course consistency in sentencing drug trafficking in Class C drugs remains important.  Furthermore we think the general principles which are applied in the case of Class A and Class B drugs are relevant.  The Court will therefore look when sentencing drug trafficking in Class C drugs to all relevant circumstances which will include the quantity of drugs which were the subject of the trafficking and the closeness to the main supplier.  The Court should ideally be made aware of the potential profit to be made, and also should have knowledge as to the street value of the drugs in question, but recognise that street values go up and go down, and that therefore these should be treated with some circumspection.  The sophistication of the operation may well be a relevant factor both because of its potential link to the closeness to the main supplier (on the basis that the closer one is to the main supplier, the more sophisticated one might expect the operation to be) and also because it goes to the overall risk to the public and to the culpability of the defendant. 

34.      We emphasise that if trafficking in Class C drugs becomes a matter increasingly for this Court, it may be necessary to revisit the question of starting points.  At the moment however the Court's view is that there is inadequate data on which we can properly adopt that approach. 

Decision

35.      What one is then left with on this appeal is that the lower Court proceeded on the basis of fixing a starting point for sentence in the same way as with a drug trafficking offence in Class A or Class B drugs.  As we have said, we are uncomfortable with that approach.  We are particularly uncomfortable with the approach in this case because, even if one had been adopting starting points as an appropriate sentencing tool, we do not think four and a half years imprisonment for these offences would have been the right starting point.  In principle, we accept the submission of the appellants' counsel that to adopt a sentencing starting point of four and a half years in this case would leave insufficient room at the top for worse cases where the sentencing ought to be more severe.  Nonetheless we agree with the comment in the Court below that there comes a time when offences are serious enough to justify the maximum, even if one can envisage something more serious which would also justify the maximum. 

36.      In Harrison-v-AG [2004] JLR 111, at paragraph 31, the Court of Appeal accepted the summary in Archbold, Criminal Pleading, Evidence in Practice [2003 Ed.] in its resume of the position in these terms:-

"In broad terms, it is submitted that the Court will interfere: 

(a)       Where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law;

(b)      Where sentence has been passed on the wrong factual basis;

(c)       Where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or

(d)      Where the sentence was wrong in principle or manifestly excessive."     

37.      Paragraphs (a) and (b) above clearly do not apply in this case.  For the reasons given, we think that the Inferior Number may have gone wrong in its adoption of a starting point.  Nonetheless the use of starting points is only a mechanism to reach a final decision.  Having looked at all the facts of the case, and considering the statutory maximum, the Court was of the view that the number of BZP tablets involved in this importation, the sophisticated nature of the operation to import them, and the commercial profits which were available to be taken clearly showed that a custodial sentence was right in principle.  Furthermore, the Court was of the opinion, by a majority, that sentences of three years' imprisonment for Page, two years and eight months' imprisonment for Childs and two and a half years' imprisonment for Keane were the appropriate sentences for these particular offences, having regard to the circumstances of the offending and the mitigation which was available.  One Jurat was of the view that the approach of the lower Court having been shown to be fallacious, a lower sentence should be imposed on appeal to reflect that conclusion. 

38.      In the circumstances the appeals failed, and were dismissed, with defence counsel being awarded legal aid costs. 

Authorities

Customs and Excise (Jersey) Law 1999.

AG-v-Page and Others [2012] JRC 006A.

Bonner-v-AG [2001] JLR 626.

AG-v-Munro [2011] JRC 121.

AG-v-Allman-Jones [2010] JRC 230A.

AG-v-Spinola [2010] JRC 100.

AG-v-Campbell [1995] JLR 136.

Clarkin-v-AG [1991] JLR 213.

Rimmer-v-AG [2001] JLR 373.

AG-v-MacKenzie and Richards [2011] JRC 173A.

Harrison-v-AG [2004] JLR 111.

Archbold, Criminal Pleading, Evidence in Practice [2003 Ed].