The Hon. Michael Beloff, Q.C., President;
Oliver Samuel Hall
The Attorney General
Application for leave to appeal against the sentence passed by the Superior Number of the Royal Court on 6th December, 2013 on:
1 count of:
Possession of a controlled drug, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
M. T. Jowitt, Esq., Crown Advocate.
Advocate C. M. Fogarty for the Applicant.
This is the judgment of the court.
1. On 20th April, 2013, shortly before 10.30 pm, the appellant drove his Peugeot 205 car at high speed through the underpass in St Helier before losing control of it and crashing. When the police arrived at the scene they found the appellant's car straddling the central reservation of Route de la Liberation just east of its junction with Gloucester St. The defendant was by the car emptying it of its contents. Investigation at the scene, and later of CCTV footage, revealed that shortly before losing control of his car he had been driving at 87 mph. The road has a 30 mph limit. He had been racing with 2 other cars which were also travelling at more than twice the speed limit. He lost control of his car 132 metres from the crash site, hit a lamp post and travelled the last few metres sideways before hitting the second lamp post. A taxi driver travelling in the opposite direction may only have avoided being struck by the appellant's car because the lamp post intervened. There was of course substantial damage caused to the appellant's car. At the scene he claimed that he had come through the underpass at about 45-50 and had been "a bit ambitious" with the car, clipped the pavement and lost control of it. He was not arrested. When interviewed much later he made no reply to questions.
2. On 9th July, 2013 Customs Officers were conducting surveillance outside the Six Roads Stores in St Lawrence. There they saw a green Volkswagen Polo parked. The appellant was sitting in the driver's seat using a mobile telephone. He was arrested. The car was searched and a black ignition key was seized. He told the Customs Officers it was a key to a van. Whilst the appellant and his car were taken to the Elizabeth Terminal, other Customs Officers, acting on what he had admitted to them about the van key, went to premises at the Lion Park in St Lawrence where a number of "Anytime, Anyplace, Anywhere Removals" vans were parked. This removals business belongs to the appellant. The key was matched to a van which was opened and searched. In the rear cargo compartment, officers found an open black holdall beneath a pile of nylon bags. The holdall contained wrapped bars of Cannabis Resin. Under the holdall were a number of heavy duty plastic bags. These too contained bars of Cannabis Resin, wrapped in similar fashion to those in the holdall. In total there were 288 bars - 71 kilograms - of Cannabis Resin. The bars were wrapped in a professional manner, in multiple layers contained within an outer, heat-sealed bag. Within this there were layers of newspaper, further bags and a further heat-sealed bag. Each bar was in turn sealed in cellophane and duct tape. The same afternoon, Customs Officers conducted a search of the Defendant's home address in St Helier. There they seized two small amounts of Cannabis Resin in a top floor room used by the Defendant, weighing in total about a sixth of an ounce.
When interviewed about these matters too, the appellant answered no questions.
He appeared before the Royal Court on 1st November 2013 and pleaded guilty to dangerous driving and Counts 1 and 3 of the 2nd indictment of possession of the cannabis found in his van with intent to supply and to simple possession of the cannabis found at his home.
3. On 6th December before the Deputy Bailiff and Jurats Le Cornu, Morgan, Fisher, Kerley, Liston and Blampied he was sentenced to 7 years' imprisonment on Count 1 of the drugs indictment, no separate penalty being imposed on Count 3, and 8 months' imprisonment concurrent for the dangerous driving. In addition he was disqualified from driving for 2 years, that disqualification to start on the day of his release from prison. Appropriate orders were made for forfeiture and destruction of the drugs. He had been on bail until the day of sentence.
4. He now applies for leave to appeal against the total sentence of 7 years. For reasons which will become apparent we grant leave.
5. 3 principal grounds were put originally forward in support of the appeal. Ground 1 is subdivided into four:-
(i) The Commissioner held a Newton hearing at which the appellant gave evidence. The appellant submits that:-
(a) The hearing should not have been held.
(b) The Court did not indicate, or indicate sufficiently, what if any findings it had made following that hearing,
(c) The Court, in breach of the appellant's rights under Article 6 of the European Convention on Human Rights, used the hearing to "attempt to amplify" the defendant's involvement in count 1 of the drugs indictment.
(d) In fact the hearing added nothing to the information already before the court.
(ii) Following the Newton hearing the Court failed to indicate to the appellant that it was considering fixing a higher starting point for the consideration of sentence than that proposed by the Crown.
(iii) The sentence of 7 years was manifestly excessive.
6. Ultimately the only question necessary for decision is the last one. This Court will intervene to quash a sentence if it was manifestly excessive (or wrong in principle). If not, not.
7. Advocate Fogarty, at the start of her oral submission, effectively conceded the point made in the last paragraph, and asked whether the court needed to hear her on the Newton hearing issue. We indicated that we wished to hear her, it being possible that the Court might wish to give guidance on the issue. No oral submissions were made on points b. and c. above. Suffice it to say that we reject those 2 sub-grounds. The Court and the Crown made it clear what the purpose of the potential hearing of evidence was, and the hearing was used in fact to allow the accused the opportunity to reduce the gravity of the offence of possession with intent to supply for which the Crown was contending.
8. In Newton (1982) 77 Cr. App. R. 13 Lord Lane LCJ laid down the principles which in England and Wales, refined and developed by later decisions, set down the principles to be observed by sentencing courts when there is a dispute of fact between the prosecution and the defence as to the facts underlying an offence to which an offender has pleaded guilty. Since, as we have said, ultimately the only relevant question for this court is whether the eventual sentence of the court should be reduced, it would be a waste of time to set them out in detail. No less than 22 principles applying to these hearings are set out in the later case of Underwood  1 Cr. App. R. 178.
9. We paraphrase those relevant to this particular case here:-
(i) The accused should be sentenced as far as possible on a basis which accurately represents the facts of the case.
(ii) If the prosecution object to the basis put forward by the defence the areas of dispute should be reflected in a document that focuses the attention of the court on the precise facts which are in dispute.
(iii) Even if there is agreement between the parties, the judge is not bound by such agreement.
(iv) Where the issue between the parties arises from facts exclusively within the knowledge of the accused the defence should be willing to call him.
(v) In making a finding the judge should apply the criminal burden and standard of proof.
(vi) In certain circumstances an adverse finding to the accused may reduce or eliminate the mitigation otherwise due to him because of his plea.
10. In this case there was no "basis of plea" document supplied by the defence in advance of the hearing. Of course, as we have said, the appellant had given no account of the degree of his involvement in interview.
11. In the Crown's Statement of Facts served on the Defence and the Court, Advocate Jowitt, submitted:-
"By his plea to Count 1, the defendant accepts that he intended to supply 71 kilograms of cannabis resin to others. The Crown do not suggest that he was the mastermind behind this consignment. These were not his drugs and his was not to be the ultimate financial benefit from their supply. He is not a drug baron. Nor, at the other extreme is it suggested that he would be involved in the menial task of retaining the cannabis at street level. What the Crown say is that he was close to the source of this consignment, trusted by higher placed criminals to take custody of and ultimately pass on to others in the supply chain some £1million worth of cannabis resin. He can properly be described as a high level and highly trusted, lieutenant in the distribution process."
The Statement referred to the account given to the Probation officer by the appellant for the purposes of the Probation Report. It made it clear that that account was not accepted and at paragraph 34 reads:-
"If the Court considers the Defendant's version of events makes a difference to sentence, then the Crown invites a Newton hearing to be held in which the Defendant can give evidence and be cross-examined."
12. At the start of the sentencing hearing Advocate Jowitt drew the court's attention to the existence of what was to become the defence mitigation:-
"There's a short matter I think I should canvass first. And that is the basis of plea which emerged only this week in the comments made by the Defendant to the Probation Officer and latterly in a letter to this Court. Sometime ago now in the, I think the beginning of October, we set out what we said this Defendant's role was in drug trafficking. We said he was a highly trusted, fairly highly placed lieutenant in the supply chain. His case now is 'well no actually I was placed under some threat and duress to take these drugs for just a short time in order to wipe out the £7,000 that I apparently owed to someone I'd had drugs from'. Now my learned friend, I understand, says she doesn't think it makes a difference, it's not immediately obvious to me why she says that, not that I'm saying she's wrong, but really I canvass with the Court whether the Court feels it makes a difference to sentence if he's to be sentenced on one basis or the other."
13. Thus the court was put on notice that there was a potential conflict as set out above. The undated letter referred to had been received shortly before the hearing. There then followed a discussion as to whether a Newton hearing was appropriate. Advocate Fogarty submitted, as she does in this appeal, that such a hearing was unnecessary. The hard evidence was not in dispute and it was for the court to draw the appropriate conclusions.
14. The discussion continued. Adv Fogarty submitted that, in effect, her client's account had to be accepted and that the consequence was that her client should be sentenced as a "momentary" minder of drugs to be paid £7,000 which would wipe out a debt owed to someone to whom he owed money for other drugs he had bought. Adv Jowitt submitted that the size of the consignment and the need for the owners of it to be certain that, for however long it was in the accused's possession, it was safe, meant that his contention remained sound. In the course of the discussion the Deputy Bailiff made the following points:-
"DEPUTY BAILIFF: So is the position not this? That it's a matter for the Defence to invite the Court to hold a Newton Hearing if they wish to adduce any other facts to put before the Court, which might be evidence from the Defendant, and if the Defence don't put any other evidence before us then it's a matter for the Court as to whether it's satisfied to the criminal standard that these inferences which you invite us to draw are the correct inferences."
And a little later:-
"I have already given you, I think, the clearest indication as far as I'm concerned that the Court does see that there is a difference between the characterisation of his involvement as set out by Advocate Jowitt and the characterisation of his involvement as set out by him. And the facts not being disputed the only way in which we can make a determination of that involvement is by inference from those facts and if there is any other evidence that you think ought to be put before us which would include evidence from the Defendant because a statement from the dock or a letter to the Court I think does not count sufficiently in that respect, that's a matter for you.
15. Advocate Fogarty then conferred with her client. She indicated, no doubt because she believed that the Deputy Bailiff was inclined to the prosecution view of the proper inferences to be drawn, that she would wish to call her client.
16. Adv Fogarty took her client briefly through his account. He had been approached by someone to whom he owed £7,000 from some 4-5 years earlier and who he had not seen since then. The person took his business telephone number from the side of his van and said he would be in touch. On the day before the drugs were found he was approached again. He was told where to pick up the drugs, where to park his van, and to await a call to return to it and leave the key to it. When he was arrested he was waiting for the call. He refused to name his creditor for fear of the possible consequences to him or his family of doing so. As to the money he said that he could not bring himself to ask his father for financial help again.
17. Advocate Jowitt challenged his account. He suggested that no organization importing drugs on the scale of this consignment would entrust £1,000,000 worth of them to a man who had owed them some money for 4-5 years and with whom they had had no contact in the interim. He suggested that if debt really existed he could have expunged it by borrowing from his father who had lent him some £17,000 already and who had since put up £42,000 in support of his bail on this charge.
18. After Advocate Jowitt had concluded his cross-examination of the appellant the Deputy Bailiff asked questions. They were directed at the loans from his father and why he had not borrowed other money to pay this debt, or used some of the money he had borrowed to pay it. He suggested that the appellant's unwillingness to name the man who had approached him meant that he must believe that he was a significant member of the organization who might take revenge on him or his family if he revealed it. The appellant said that he had no idea how significant the role played by the man who approached him was but could not dispute the fact that he must have been an organiser.
19. Was there a need for a Newton hearing, and if not did the hearing lead to a sentence which was manifestly excessive? There was undoubtedly a sharp conflict between the inferences the Crown sought to draw from the agreed facts and those contended for by the appellant. The Court's decision on this issue could undoubtedly have made a significant difference to sentence. Hence the possibility being raised by Crown Counsel in the Sentencing Conclusions. The only person who might be able, by evidence, to assist in its resolution was the appellant. In retrospect perhaps little was gained from the hearing. It was almost inevitable that a court, faced with the concept that an almost complete stranger who had apparently ignored a substantial drugs debt for 4-5 years had suddenly and without further contact decided to release his debtor on performance by him of the important duty of collecting, storing and enabling the transfer of about £1,000,000 worth of cannabis, would have been extremely sceptical. The accused did not in the end contend that he acted under any real pressure, let alone duress in the legal sense of the word.
20. To that extent the hearing in the end added little beyond revealing that the age of the alleged debt was such that it predated the loans which the appellant had received from his father in the past.
21. Of course the formalities normally associated with such a hearing were not followed in this case. No formal written basis of plea had been submitted, and there was therefore no formal written rebuttal of it. In the case of McKenzie  JLR 9 (at p22) this court said:-
"In order that the Newton hearing may be conducted in a satisfactory manner, it is necessary that there should be careful preparation for its conduct. As soon as a conviction is recorded and there appears to be a real issue as to the events that support the conviction, whether on a plea of guilty or after a contested trial, the Bailiff should not move to sentence without consideration being given to the possibility of a Newton hearing. On an indication being given of the court's provisional view about a determination of rival versions of the criminal event, counsel for the parties should be invited either to agree a version or, if not, to formulate the rival versions. If the latter, such formulation should, within a stipulated time, be reduced to writing with an indication of the witnesses whom prosecution and defence wish to call. Before the Newton hearing begins the Jurats should be served with the formulated issue(s) to be tried and should ultimately return a general verdict in favour of one rather than the other version. A transcript of the evidence should be provided, together with a record of both the directions given by the Bailiff and the verdict of the Jurats on their return to court. In this way this court will be left in no doubt about the propriety of the Newton hearing."
22. The situation which arose in this case was one which is common in criminal cases. It is always open to a defendant to apply for permission to be heard or to call evidence in mitigation, whether it be purely as to previous good character or a mixture of good character and mitigation going to the circumstances of the offence or the offender at the time the offence was committed. Clearly if the resolution of the issue will require the attendance of witnesses other than the defendant who will be at court in any event, it will be important for the "McKenzie" procedure to be followed. Issues which can be decided solely by reference to the agreed facts together with, if the accused chooses to do so, by his or her evidence, do not need the same preparation. In this case no possible prejudice accrued to the defendant by the adoption of the procedure. The Court could, had it wished, have rejected the accused's account in his letter without giving him the chance to give evidence in support of it.
23. Ultimately the court has to decide whether any unfairness accrued to the appellant as the result of the procedure. In our judgment none did. There was obviously a great deal more to the story than the defendant had been prepared to tell the probation officer who compiled the report upon him, or the court by way of his letter and his evidence. The Court's intervention prior to the accused giving evidence was not designed to amplify his involvement. Quite the contrary. It was an opportunity for him to try to lessen the apparent gravity of his offending. In fact it did not do so. The sentence was passed on the basis of the Crown's wholly realistic assessment of the facts quoted above. The court did not penalise the appellant by reducing the discount available for the plea and other mitigation (see para 9 vi above).
24. The appellant is 26. He has a number of relevant convictions. With regard to the dangerous driving matter he has convictions in 2008 for speeding and driving without insurance. So far as the drugs charges are concerned he has convictions for drug offences - 4 in all - one of which was for possession with intent to supply Ecstasy, a Class A drug. These offences were dealt with together. He escaped a prison sentence on that occasion but was ordered instead to perform the maximum hours of community service permissible of 240 hours. Within 3 months of those convictions he committed a grave and criminal assault. He was sentenced to 2 years' imprisonment for that assault and a year consecutive for breaching the community service order. In 2011 he was convicted of further motoring offences including driving without insurance, possession of cannabis, and offences of dishonesty for which he received a probation order and was ordered to do 110 hours' community service. The full Social Enquiry Report accepted that a prison sentence was inevitable. The accused's use of cannabis was described as recreational not addictive. He had committed the offences after he had settled down with his new wife and was hoping to start a family.
25. So far as the driving offence is concerned the Crown submitted that 6 months' imprisonment, the maximum sentence available if the case had been dealt with summarily, would have been appropriate, together with a disqualification of 2 years. In the event a sentence of 8 months was imposed about which no complaint has been made.
26. Turning to the drugs offence, the Crown submitted in its Conclusions that the proper starting point for sentence before the appropriate deductions for the plea and the personal mitigation was 9 years. Reference was made to the guideline case of Campbell and Others  JLR 136 together with dicta in Rimmer and Others  JLR 373 and Warren and Others-v-AG  JCA 084. In Campbell the Court adopted suggested bands for sentence in cases involving the importation or supply of Class B drugs. The starting point for amounts over 30 kilograms was set at 10 years plus. After some discussion of whether value or weight were the appropriate measurements, there being, correctly, agreement as to weight bearing in mind the fluctuation in price of drugs at street level on the island from year to year, the following dialogue took place:-
"DEPUTY BAILIFF: You can perhaps take me to those in just a moment, can you just show me the passage in Campbell again because-----.......I have to say the Court on reading the conclusions was surprised by the taking of a starting point of 9 years.
CROWN ADVOCATE: Well all I can say is that I followed the reasoning of Sir Christopher (sic) Tucker and the Jurats then sitting, in the sentencing in the Warren case. As I had understood what the Court of Appeal said when those sentences were appealed they did not say that was the wrong approach, indeed they endorsed, I think they endorsed, those starting points and refused leave to appeal.
DEPUTY BAILIFF: The Court of Appeal in Campbell says "We also agree that in cannabis cases the appropriate starting points in the case of quantities over 30 kg are a minimum of 10 years' imprisonment;"
CROWN ADVOCATE: Yes they do say that. But, well to my mind there is an inconsistency in the way that this Court and the Court of Appeal have approached it. I'm more than happy to be told I'm wrong, obviously, it seems to me the important point in the end is whether we end in the right place, but Sir if you feel that some clarification should be given for the future then that, I think, will be clarification well given. If you look at the way Sir Christopher Tucker approached it with the Jurats in Warren they were saying well we think that the Crown has selected the wrong starting point for example of 10 years it should be 9 years or 8 years-----"
27. Later during the hearing the Deputy Bailiff repeated the court's surprise that the starting point had not been set higher in the Crown's Conclusions.
28. Advocate Jowitt concluded by repeating his submission namely that the starting point for the drugs offence should be 9 years reduced to 5 and a half years by the mitigation of the plea and the appellant's personal circumstances and for the dangerous driving 6 months consecutive, that sentence representing the maximum sentence available to magistrates had the offence stood alone.
29. In Fogg v AG  JLR 31 the Court of Appeal considered the question of sentences which were more severe than those moved for by the Crown in its Conclusions. In giving the judgment of the Court Calcutt JA said:-
"Although it is the practice in this jurisdiction for the Crown, either through the Attorney General or through a Crown Advocate, to assist the court with regard to sentence to a far greater extent than is permitted or is held to be desirable in the English jurisdiction, here the court has to make up its mind between conflicting views. On the one hand, the Crown moves for particular conclusions and on the other, counsel for the defendant urges that the court should not grant the conclusions, depending on the circumstances of the case. The fact that the court alters the conclusions, whether by reducing them or by increasing them, indicates that it is for the court to exercise its unfettered discretion in deciding on the facts of the case what the appropriate sentence should be. If the Royal Court increases the conclusions of the Crown, that is not per se a ground for allowing an appeal against the sentence imposed. But it does mean that in an appeal where those facts apply then the circumstances of the conviction require the most careful scrutiny of the Court of Appeal."
30. Advocate Fogarty contended that there is a duty in the sentencing court, if it is considering the fixing of a higher starting point than the one contended for by the Crown to put the defendant on notice of that possibility. She suggested that it has been an invariable practice in the Royal Court for many years. She asked us to consider, whatever our conclusions as to the ultimate correctness of the sentence, whether that procedural irregularity was itself sufficient to cause us to vary the sentence as a result.
31. She was however unable to point to a decided case in which the principle contended for here has been laid down, nor are we surprised by that inability. The sentence is decided not by the judge but by the Jurats. They may, or may not, have had the chance to discuss the case in advance of the hearing. If they have their preliminary views may differ. Their preliminary views may shift during the hearing, in particular one like the present when the degree of the accused's involvement in the offence is in dispute. All in court know that the Crown's conclusions are not binding on the court. It is not clear what further arguments beyond those already put forward concerning the tariff, the role played by the appellant in the offence and the mitigation within the plea of guilty and the personal circumstances, could have been put forward by Advocate Fogarty on behalf of her client. We have come to the firm conclusion that it cannot be incumbent on the judge to issue such a warning as Advocate Fogarty suggests. In any event the Deputy Bailiff had twice made clear the court's surprise that the Crown had moved for a starting point as low as 9 years. However, if at any stage of the proceedings it is clear that the court has in mind at least that there is a real possibility that it might take a severer view than is to be found in the Conclusions, it may assist it (as well as the defendant) to give a necessarily provisional indication. In this case, as we have indicated, the Deputy Bailiff had twice expressed the court's surprise that the Crown moved for the starting point of 9 years.
32. In Bhojwani-v-AG  JCA 034 the Hon Michael Beloff QC, President, summarised the principles underlying appeals against sentence laid down by the Court of Appeal.
"265. Article 26(3) of the Court of Appeal (Jersey) Law 1961 states:-
"On any appeal against sentence, the Court of Appeal shall, if it thinks that a different sentence should have been passed on the Appellant in the proceedings from which the appeal is brought, quash the sentence and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal".
266. The principles which apply and are followed in Jersey are set out in the judgment in Harrison v AG  JLR 111 ("Harrison").
267. Paragraph 29 of the Harrison judgment refers to the statement in Att. Gen. v Sampson (1965) JJ at 499)(" Sampson") that:-
"the Court will not alter a sentence merely because members of the Court might have passed a somewhat different sentence."
Paragraph 30 of Harrison states:-
"30. In Att. Gen. v Gorvel this approach was further refined by reference to the English authorities. The judgment contains this passage (1973 J.J. at 2511) "The practice of this court in considering appeals against sentence is to change a sentence only if it is satisfied that it is either manifestly excessive, in the circumstances of the case, or for some reason wrong in principle." The adoption of this approach rather than the literal construction of the English statute or the Jersey law has been of considerable benefit in excluding unmeritorious applications for leave to appeal in both jurisdictions, and the importance of the principle has frequently been asserted by this court, most recently in Morgan v Att.Gen. (25): "It is not the function of this court to tinker with sentences which were well within the range open to the sentencing court simply because we might ourselves have fixed a lower level of imprisonment." The approach was also re-emphasised in Hunt v Att. Gen.(21) and we endorse it."
268. Paragraph 31 of Harrison sets out the position also presaged in Sampson and adopted in the jurisdiction of Jersey with reference to the summary in Archbold, Criminal Pleading, Evidence & Practice (2003 ed.) para 7-136 at 966:-
"In broad terms, it is submitted that the court will interfere; (a) where the sentence is not justified by the 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."
This is the basic point from which the Court of Appeal starts its analysis of a Royal Court sentencing decision."
269. The Harrison judgment identifies the two significant differences between a Crown Court in England and the Royal Court in Jersey. The first is that by Article 13 (3) of the Royal Court (Jersey) Law 1948:- "In all criminal and mixed causes, the Jurats shall determine the sentence, fine or other sanction to be pronounced or imposed"
270. The second is that the Crown enjoys an enhanced role in the sentencing process which "necessarily results in a detailed investigation and enquiry into what is the appropriate sentence".
271. At paragraph 38 the judgment of Neill JA, now Lord Neill of Bladen Q.C. Att.Gen. v Paget (7) ((1984) JJ at 64-65) was quoted regarding these differences:-
"--By long tradition, it is the accepted role of Crown counsel to give guidance and help on this matter and to represent the public interest. There is nothing comparable in England. Secondly, the sentence in this case was arrived at by the learned Deputy Bailiff sitting with ten Jurats. To this extent, the sentence represents a much broader spectrum of judicial opinion than a sentence imposed by a single judge in England---These and many other features indicate that the systems have different traditions and different modalities. Over and beyond this is the point where the Royal Court sitting in Jersey will be aware of current attitudes here to sentencing and will know, in particular, what sort of crimes are - prevalent and for what crimes it is desirable to retain a severe deterrent sentence.""
33. It is perhaps worth noting that since 1991 the position in England and Wales has moved much closer to that which applies in Jersey. The prosecution is now invited to state, in particular where the offence is one dealt with in guidelines set down by the Sentencing Commission or its predecessor the Sentencing Guidelines Council, in what band or category of offending the offence sits and what are the aggravating and mitigating features, which in its view should affect where within the band the sentence should sit.
34. In delivering the sentences reached by the court the Deputy Bailiff said:-
"We have heard you give your evidence in the circumstances where the basic facts, which are set out in the Crown's summary, have been agreed and we have had to consider what your level of involvement was against that background. You were responsible for moving this very large quantity of drugs from a field in St Aubin to a car park in St Lawrence. You were responsible for storing the drugs in a removal van and being ready to provide the key to those who were masterminding its supply. You knew the identity of at least one person who was right at the centre of the drug trafficking. The Court has found that your account prompted almost as many questions as the evidence was intended to answer, but we really take account of those three points that I have just mentioned about which there is no dispute and which, for us, point to a significant involvement in drug trafficking. In those circumstances we are surprised at the Crown's conclusion that the starting point ought to be taken at 9 years and we have made that plain, both to Crown counsel and to your counsel in the course of the speeches which were made. We do not think 9 years is the right starting point for an offence of this kind with the involvement which, as I have indicated, we have found that you had. In the circumstances we think the appropriate starting point is 11 years' imprisonment."
The Court went on to indicate that it would give a full discount for the mitigation of the plea in spite of the fact that the case was a very strong one, and allowed a further reduction of the sentence to reflect the personal mitigation represented by the birth of the applicant's child while he was awaiting trial.
35. Was the total sentence manifestly excessive? Advocate Fogarty contended that it was. She cited in support of her argument the sentences passed on those involved at the sort of level of the appellant in the cases of AG-v-Warren & Others  JRC 234 and AG-v-Styles and Others  JRC 017. A written contention that the inferences drawn from the facts and the evidence given by the appellant infringed his rights under Article 6 of the European Convention on Human Rights was not pursued in oral argument. For his part, Advocate Jowitt indicated that upon reflection his Conclusions had erred on the side of leniency. This Court has frequently deprecated over-reliance on other cases in which sentences have been passed without the court purporting to set guidelines.
36. The starting point for the drugs offence was, in our judgment, slightly too high. The 10 years plus guideline cannot mean that any person, however minor his involvement, should receive such a sentence following a contested trial. That would mean that there was too small a difference between the sentences for the organisers of such operations and couriers or low level street dealers. Accepting the Crown's contentions on the one hand that this accused was a trusted custodian of an entire consignment, and on the other that his involvement was temporary and confined to looking after the consignment before its onward distribution, we consider that 10 years was appropriate to reflect the appellant's involvement, his relevant bad character, the quantity of cannabis, and the sophistication of the operation in which he knowingly became involved. As the Deputy Bailiff said, the accused was fortunate to receive more than the full one third discount bearing in mind the very strong case against him. The appropriate sentence would therefore have been in the region of 6 years and 4 months to reflect his plea and other mitigation.
37. However the sentence for the driving offence, as Advocate Fogarty conceded, would normally have been ordered to run consecutively, and she also conceded that, were the Court to allow her appeal on the drugs charge, it should do so. The offence, which involved not only racing at grossly excessive speed but also the loss of control of the vehicle at that speed and the good fortune that neither the appellant nor any member of the public was killed or seriously injured, richly deserved the sentence imposed. The total sentence was not in any way manifestly excessive and the general principle should be that if the defendant is to be sentenced on one occasion for different types of offending there should be consecutive sentences so that the public and the offender know that the sentence to be served actually reflects the facts of different types of offence.
38. We therefore propose to reduce the sentence for the drug offence to 6 years 4 months and to make the 8 month sentence for the dangerous driving offence consecutive. Accordingly this appeal is allowed to the extent we have indicated although the term of imprisonment to be served remains at 7 years.
European Convention on Human Rights.
Newton (1982) 77 Cr. App. R. 13.
Underwood  1 Cr. App. R. 178.
Court of Appeal (Jersey) Law 1961.