Jersey Unreported Judgments

Drugs - application for leave to appeal against sentence.

[2020]JCA247

Court of Appeal

30 November 2020

Before     :

James McNeill, Q.C., President; Sir William Bailhache, Q.C., and Jeremy Storey, Q.C.

Benjamin Robert Hagin

-v-

Her Majesty's Attorney General

Application for leave to appeal by Benjamin Robert Hagin against the sentence imposed by the Superior Number of the Royal Court on 4^th August 2020 on:

6 counts of:           Removing criminal property from Jersey, contrary to Article 31(1)(d) of the Proceeds of Crime (Jersey) Law 1999 (Counts 1 to 4, 6 and 11).

5 counts of:           Offering to supply a controlled drug to another, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Counts 5, 7, 8, 9 and 10).

1 count of              Possession of criminal property, contrary to Article 30(1)(c) of the Proceeds of Crime (Jersey) Law 1999 (Count 12).

1 count of:             Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 13).

 

Advocate I. C. Jones for the Appellant

C. R. Baglin, Esq., Crown Advocate  

JUDGMENT

Storey JA:

Introduction

1.        This is the judgment of the Court.

2.        The Appellant applies for leave to appeal against the sentence of four years' imprisonment imposed by the Royal Court on 4 August 2020.  The reasons for the sentence were set out in a judgment of 3 September 2020.  The sentence accorded with the Conclusions of the prosecution.

3.        The Appellant was aged 24 at the time of the offences and is now 26.  He had 21 previous convictions including possession of a Class B drug (cannabis) in 2010 and being concerned in the importation of a Class B drug (cannabis) in 2013 for which he received a probation order of six months.

The Appellant's criminal conduct

4.        The brief circumstances of the Appellant's 13 offences are as follows.  On 7 April 2019 States of Jersey police officers searched the Appellant's flat and seized cannabis (55g), cannabis resin (3.8g), £2,690 in cash, £10,000 in a package bearing a Liverpool address, drug grinders, scales, post office receipts, lists and a notebook containing names and figures.  It became clear that between December 2018 and April 2019 the Appellant had sent £53,790 cash in six separate packages to the UK.  The Appellant's mobile phone records evidenced five offers to supply cannabis during March and April 2019. 

5.        The seven money laundering offences involved the Appellant, over a four month period, collecting cash (on instructions from UK suppliers) from Jersey drug users/buyers or third parties, minding it, wrapping it and passing it on locally or posting it to those UK suppliers.  The Appellant had assumed the money related to the sale of cannabis.  His 2½% fee was a reduction in debts the Appellant had accumulated to sustain his own drug habit. 

6.        The judgment of the Royal Court (AG v Hagin [2020]JRC 176) summarised the matter thus:

"10.    In essence from all of the material obtained, the Defendant's answers in interview and various expert reports relating to drugs matters that we have seen, it is clear that there was a significant money laundering operation dealing with the proceeds of the sale of drugs.  From the Defendant's own account he would collect money relating to drugs deals from individuals identified to him and when it had been accumulated to a sufficient sum he would send it in accordance with instructions through the post.  The information obtained disclosed a number of these actions and these are reflected by the counts in the Indictment.  Count 12 relates to a sum in cash found at the Defendant's premises which was in the process of being sent but had not yet been posted.

11.      In addition it was clear that the Defendant was offering cannabis for sale.  He did not provide the PIN number for the phone on the grounds that there were personal messages between himself and his girlfriend but it is clear from an examination of the phone that the Defendant was offering to supply cannabis to a number of individuals for payment.  As far as the phone discloses there were five individuals to whom the Defendant offered drugs.  In interview he answered "no comment" to questions put to him in this area as well as other entries on his phone.

12.      The total amount of cannabis resin seized in the Defendant's flat was 3.819 grams.

13.      It could not be said that the Defendant was fully cooperative with the Police.  He gave some information relating to his habit of bulk buying cannabis for his own use and he did sign a bank authority to allow the Police to access his bank accounts.  As explained above, however, he refused to give his PIN number for his mobile phone and gave "no comment" answers to questions relating to the supply of cannabis or the named individuals to whom monies were sent.

14.      During one of his interviews he indicated that he had a personal drugs debt of approximately £5,500 from buying cannabis but he had managed to reduce that debt to £3,000 by collecting and sending money on behalf of others.  He indicated that for every £1,000 he collected he would get £25 removed from his drug debt and for every package he sent to England he would get a further reduction.  He estimated that he had posted approximately £10,000 to the United Kingdom on five separate occasions."

7.        The Appellant had pleaded guilty to all counts on the indictment on 15 May 2020.

The sentencing hearing

8.        Prior to the hearing the Crown served its Summary of Facts and Conclusions on the defence in the usual way. 

9.        Advocate Baglin invited the Royal Court to consider AG v Goodwin [2016] JRC 165 at paragraphs 4 - 7 when sentencing for money laundering offences:

"(i)      There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence when considering the appropriate sentence for the laundering offence.

(ii)       The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct.

(iii)      Regard should be had to the extent of the launderer's knowledge of the antecedent offence.

(iv)      The amount of money is a relevant factor",

(v)       "Regard should be had to the ... duration, sophistication and scale of money laundering" and

(vi)      "The interests of Jersey as a finance centre justified an element of deterrence in the sentence".

 

Sentencing policy had moved on from that in AG v Michel [2007] JRC 120 and AG v Bhojwani [2010] JRC 116 because "the evil of money laundering generally receives an increasing focus in the international community and ... it is right that this Court should reflect that in the sentences which it passes" (18). 

10.      The Appellant's predicate offence was drug trafficking, probably of cannabis.  In Campbell v AG [1995] JLR 136 this Court set out the appropriate starting point for importing or offering to supply 1 - 10kgs of cannabis as 2 - 6 years, which would equate to 42 months' imprisonment for 4.4kgs, the approximate amount of cannabis which could be bought for £66,480, the cumulative amount of money which the Appellant had sent or was about to send to the United Kingdom.   

11.      In paragraphs 3 and 16 - 18 of the Crown's Conclusions it was contended that the Appellant "was integral to the operation", was "trusted", and "undertook a vital role in an organised crime group that was dealing large amounts of drugs in the Island".  The Appellant's role was "pivotal". 

12.      Advocate Baglin also invited the Royal Court to consider AG v Gilbraith and Rawlinson [2017] JRC 155 when sentencing for the offences of offering to supply cannabis. 

13.      The Crown moved for concurrent sentences for the money laundering offences and concurrent sentences for the supply offences, but the latter should be consecutive to the former.  The Crown's starting point was five years and it contended for a sentence of three years' imprisonment for money laundering and twelve months consecutive for supply (and no separate penalty for possession of 3.8g of cannabis resin).

14.      Advocate Dix appeared for the Appellant and put forward mitigation of guilty pleas, alleged cooperation during interview, a letter of remorse from the Appellant and positive references from family members and others.  Advocate Dix accepted that the fact that the Appellant claimed to have acted as he did by reason of threats from his unpaid supplier(s) was not capable of amounting to mitigation (23 and 26).  Advocate Dix relied upon a Social Enquiry Report dated 28 July 2020 in which the author recorded that the Appellant did not dispute the Crown's Summary of Facts (apart from a few details).  The Appellant was assessed as a "moderate risk of reconviction".  It was recorded that the Appellant "is expecting to receive a custodial sentence" but that should the Court feel able to impose Community Service such was available.

The reasoning of the Royal Court

15.      The Royal Court (at 6, 9, 21, 23, 25, 28, 29 and 30) adopted the Conclusions of the Crown and followed the principles set out in Goodwin (repeated at paragraph 9 above).  It fixed a starting point for the money laundering offences at five years' imprisonment, having earlier referred (at 18) to what would have been the starting point for the predicate drug trafficking offence, 2 - 6 years' imprisonment.  As to Advocate Dix's contention that a five year starting point was too high, the Court stated that the calculation of an appropriate starting point "was not an exact science" (23 and 28).  The sentence had to reflect that the Appellant "was trusted by those higher up the drugs dealing chain with handling substantial amounts of money on their behalf accumulating it and sending it as ordered.  He was also involved in the supply of drugs" (25).  He therefore had knowledge of the predicate offence and was paying off his own drugs debt.  He still had at least £2,500 more to pay off:

"Money launderers encourage and facilitate the supply of drugs and they are an essential part of that trade.  The [Appellant] was involved in it for a significant period of time and in substantial sums" (19, 25 and 29).

16.      Further, in response to Advocate Dix's contention that the Crown's two year discount for personal mitigation including plea was insufficient, the Court was not satisfied that the Appellant had become free of drugs (24).  He was not fully cooperative with the police (13 and 27) and could not be regarded as a victim (25).

17.      As to the offering to supply 55g of cannabis, the Court found there to be no comparative cases (22) - although it did refer in passing to Advocate Baglin's citation of Gilbraith where twelve months' imprisonment would have been appropriate, but for special reasons, for an offer to supply cannabis by a defendant of good character.  The Court agreed with the Crown's contention of twelve months' imprisonment consecutive (31).

The role of the Court of Appeal

18.      The approach in this Court has been set out, comprehensively, in Harrison v Attorney General [2004] JLR 111, by Nutting JA at 31:

"31.    The summary in Archbold, Criminal Pleading, Evidence & Practice (2003 ed.) provides a helpful resume of the position which we adopt for this jurisdiction (op, cit., para. 7-136, at 966):

"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."

 

This is the basic point from which the Court of Appeal starts its analysis of a Royal Court sentencing decision.  The Attorney General suggested that sometimes the Court of Appeal had "tinkered" with Royal Court sentences.  This complaint contains the seeds for misunderstanding.  In some recent cases, the Royal Court has acted on a wrong factual basis: correction on this ground may result in a relatively small alteration to the length of the sentence, but the change must nevertheless be made.  Sometimes the Royal Court fails to create a sufficient disparity of sentence between offenders or creates an excessive disparity: a correction may again have to be made notwithstanding that it may result in a relatively minor change to the length of the sentence.  But where special factors such as these are not present, we agree that this court should adopt the approach described in Morgan set out above."

The grounds of appeal

19.      Advocate Jones, who appeared for the Appellant on the appeal, contends that the sentences of three years and one year imprisonment were manifestly excessive.  He also criticised an alleged lack of reasoning for adopting the Crown's suggested starting point of five years, when the starting point under Campbell should have been 18 months less, namely 42 months.  Advocate Jones accepted that the sentencing court can, having identified a point of departure, increase the starting point but he maintained that the Court must clearly identify its methodology if it does so.  Advocate Jones contended that, even making allowance for the aggravating features in the case, the starting point "should have been no more than four years".  He did not quarrel with the two year allowance for personal mitigation, and so his submission was that the sentence for money laundering should have been no more than two years' imprisonment.  He also invited this Court to consider the alternative of Community Service.

20.      Further, Advocate Jones was critical of any reliance on Gilbraith, a case where the defendant had pleaded guilty to two offences of being concerned in the making of an offer to supply Class A drugs and two offences of offering to supply Class A drugs, as well as one offence of being concerned in the supply of cannabis.  Advocate Jones contended that if the Royal Court relied on Gilbraith it did not explain why.  Advocate Jones referred us to AG v Price [2019] JRC 211 where the defendant had received from a Magistrate a sentence of eight months' imprisonment for possession of 312g of cannabis with intent to supply (reduced on appeal to Community Service on account of "special circumstances" and exceptional mitigation).

Discussion

21.      We are grateful to both Advocates for their helpful written and oral contentions.

22.      We have not been persuaded that the sentences of three years or one year's imprisonment were manifestly excessive.  The overall sentence of four years "falls well within the range open to the sentencing court".  It is in line with AG v Rae and Spinola [2017] JRC 080 and Rae v AG [2017] JCA 197.

(i)        Money laundering

23.      The Royal Court was right to have regard to the factors listed in Goodwin in 2016 to reflect a change in sentencing policy for money laundering offences.  This Appellant was not being sentenced for drug trafficking offences although the Court had to "have regard" to the predicate offences.  A starting point of 42 months would have reflected no more than the relevant commercial quantity of cannabis.  As was stated in Price at 27, the quantity of drugs is important but sentencing is not calculated on a linear basis according to the amount of drugs.  The sentencing court has to assess a defendant's involvement in drug trafficking, and the weight of the drugs is one factor, though an important one, in that assessment. Advocate Jones accepted this.  According to Campbell the sentencing policy for drug trafficking cases "is that offenders will receive condign punishment" (page 144 lines 14 - 16).

24.      In the light of the aggravating features (the Appellant's pivotal role in a significant money laundering operation, his knowledge, the amount of money laundered, the duration, the Appellant's record and the need for deterrence), an uplift to a five year starting point for seven money laundering offences can be justified.  The Appellant's role as a banker was integral to the continuing success of some UK drug suppliers maintaining a foothold in the lucrative drugs market in Jersey and receiving payment for cannabis supplied to dealers and users in the Island.  As the two year discount for personal mitigation is no longer criticised, Advocate Jones conceded that if a five year starting point was appropriate, then the appeal would not get off the ground.

25.      By reading the judgment of the Royal Court alongside the Crown's Conclusions it is possible to discern the reasoning behind a starting point of five years (see paragraph 15 above), so we are satisfied that the Appellant and his Advocate would be able to understand the rationale behind his sentence of three years' imprisonment for money laundering.  In any event, Advocate Jones accepted that even if the Royal Court's reasoning was inadequate or incomplete, this Court could only allow the appeal if in fact the sentence was manifestly excessive. 

26.      However, best practice requires the Royal Court to incorporate into its own sentencing remarks any of the Crown's Conclusions or Summary of Facts it adopts because these two documents are not available to the public, media or legal practitioners.  We appreciate this adds to the length of those remarks and increases the burden on sentencers, but it is necessary for the sound administration of justice in the Island's criminal courts.

(ii)       Offering to supply cannabis

27.      No criticism is made of the sentences being consecutive to those imposed for money laundering.

28.      On a proper reading of paragraph 22 of the judgment, the Royal Court's reference to Gilbraith was not as a truly comparative case.  There the defendant was convicted of being concerned in the making of an offer to supply Class A drugs but the prosecution accepted that the relevant circumstances were not akin to drug trafficking (see paragraph 3 and McDonough v AG [1994] JLR N7a).  The offer to supply Class A drugs related to 25 tabs of LSD which were known to be dried out.  The remaining offence of being concerned in the supply of an unknown quantity of cannabis received a sentence of Community Service "as an act of mercy" but a sentence of twelve months' imprisonment would have been correct in view of the defendant's good character and guilty plea.

29.      The Appellant was convicted of five separate offences of offering to supply cannabis over a period of less than four weeks.  With his previous conviction for being concerned in the importation of a Class B drug a sentence of twelve months' imprisonment cannot be described as manifestly excessive.

Conclusion

30.      The sentence of four years' imprisonment was not so manifestly excessive that it was wrong in the circumstances of the case. 

31.      On 24 November 2020 we refused the Appellant leave to appeal against the sentence passed by the Royal Court under Article 24(1)(c) of the Court of Appeal (Jersey) Law 1961. The application for leave being dismissed the Appellant's sentence in the Royal Court stands undisturbed.

 

Authorities

Proceeds of Crime (Jersey) Law 1999

Misuse of Drugs (Jersey) Law 1978

AG v Hagin [2020] JRC 176

AG v Goodwin [2016] JRC 165

AG v Michel [2007] JRC 120

 AG v Bhojwani [2010] JRC 116

Campbell v AG [1995] JLR 136

AG v Gilbraith and Rawlinson [2017] JRC 155

Harrison v AG [2004] JLR 111

AG v Price [2019] JRC 211

AG v Rae and Spinola [2017] JRC 080

Rae v AG  [2017] JCA 197

McDonough v AG [1994] JLR N7a

Court of Appeal (Jersey) Law 1961