Jersey Unreported Judgments

Drugs - leave to appeal out of time against the decision of the Royal Court dated 10th August 2020

[2021]JCA010

Court of Appeal

22 January 2021

Before     :

Sir William Bailhache, sitting as a Single Judge.

David Lumb

-v-

The Attorney General

JUDGMENT on the papers

BAILHACHE JA:

1.        The Applicant, who is not represented, seeks by applications dated 28^th September 2020 an extension of time within which to appeal and leave to appeal a sentence of 4 years and 6 months imprisonment imposed upon him by the Superior Number of the Royal Court (T J Le Cocq Esq., Bailiff, sitting with Jurats Ramsden, Thomas and Christensen) on 10^th August 2020, in respect of one charge 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 (AG v Lumb [2020] JRC 159).  In considering such an application in civil cases, the court has regard to (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success, and (d) the risk of prejudice: see Crichton v Parker-Smith [2008] JCA 039 at paragraph 19; following B v N [2002] JLR Note 29.  In cases where the delay in serving a Notice of Appeal is short and there is an acceptable excuse, an extension of time will not be refused on the basis of merits unless the prospective appeal appears to be hopeless: Palata Investments Limited v Burt & Sinfield Limited [1985] 1 WLR 942; Pitmans v Jersey Evening Post and Another [2013] JCA 149.  In criminal cases, the Court will also have regard to the principle that the rules which govern the time within which appeals are to be brought are rules which are intended to be observed and there is a clear public interest in criminal charges being decided and disposed of as quickly as possible - see La Solitude Farm v AG 1985-6 JLR 1 at p 3.

2.        By Article 32 (1B) of the Court of Appeal (Jersey) Law 1961( the "Law" ), the time for appealing or seeking leave to appeal is 28 days from the date of sentence.  In the instant case, that time therefore expired on 7^th September 2020. 

3.        Before turning to the application for an extension, the facts of the offence were that the Applicant imported 13.55 grams of cocaine with a street value of between £1,120 and £1,400.  He was the organiser of that importation, which he arranged by providing a false address directing delivery of the drugs to a nearby address in the name of a former occupier.  When the package of drugs arrived, he forced the private post box and collected them from it.  His accepted basis of plea was that he would have sold some of the cocaine to third parties at local street prices to make a profit, and he would have used the remainder of the drugs himself.

4.        The Royal Court took a starting point of 7 years, 6 months imprisonment, applying the case of Rimmer v AG [2001] JLR 373.  The guidelines established by that case provide for a starting point of 7 - 9 years imprisonment for trafficking in 1 - 20 grams of Class A drugs, which covers this particular importation.  The Court below considered that using another person's address and vandalising the private post box were aggravating features, the former risking the involvement of that person in a drugs investigation.  By way of mitigation, the Court took into account the benefit of the Applicant's guilty plea and co-operation with the authorities.  It noted that the Applicant did not have the benefit of good character in the sense of having no previous convictions, but that none of those which he did have were either drug related or recent.  The Bailiff in his sentencing remarks indicated that the Court had considered with care the documentation before it, including the Social Enquiry Report and the letters and references which had been offered on behalf of the Applicant.  The Court took into account the Applicant's expression of remorse as being of some value and accepted that he had a good work ethic and good work record which was to his credit.  The Court noted that the Applicant was supporting his children from previous relationships and until the current offending had had a close relationship with them.  As the Court said, this painted a different picture than might have been presented by a simple statement of the facts of the offence.

The delay

5.        The Applicant was represented in the Royal Court on legal aid by Advocate Haines, who it appears gave him advice thereafter that there were no grounds to appeal against the sentence imposed.  In accordance with the legal aid rules, the Applicant sought a second opinion.  A second firm of advocates was appointed on 13^th August and they provided a negative opinion to the Applicant, now in custody, on his prospects of appeal on 4^th September.  The Applicant has also submitted an application for leave to appeal.  It is clear that some delay after 4^th September in filing the application for leave to appeal, when it became clear that legal aid would not be available to him, is understandable.  It would be desirable if those giving second opinions under the legal aid regime in this respect firstly have special regard to the time limits for appealing in the provision of their advice and secondly could ensure that a prospective appellant is informed in writing that there are time limits which have to be complied with if despite the advice they wish to pursue an appeal unrepresented, together where appropriate with advice as to the rules about seeking an extension of time.

The prospects of success

6.        I have to consider the prospects of success and thus turn to them not only in the context of an extension of time but also with regard to the application for leave to appeal.

7.        The Applicant, who is representing himself in this application, has submitted that the cocaine was of only 28% purity, which is very low compared to that in the majority of drugs prosecutions in Jersey.  There is no evidence, let alone independent evidence, as to whether he knew the level of purity at the time of the importation.  He asserts that he was charged with further importations which had nothing to do with him; he signed a waiver allowing the prosecution to get information from the airlines as to his travel movements, but he nonetheless had the stress of waiting for nine months until the information became available following his efforts with the airline in question.

8.        The Court records indicate that there was to have been a Newton Hearing.  This was expected to last for three days on the basis that the prosecution contended that the cocaine was intended for supply and not for the Applicant's personal use.  The Applicant contends that this was for personal use only but that he was pressured by his advocate into agreeing that 8 grams were for himself and 5 grams were for his friends.  He asserts that his advocate had told him that it was very rare for anyone to win on a Newton Hearing in Jersey and that if he did not accept what was being offered, he could be looking at a sentence of up to 8 years in prison.

9.        The Applicant had been arrested on 8^th March 2019 and had therefore spent over a year in prison on remand waiting for sentence.  The sentencing court included the Bailiff, who had presided over an earlier court when additional importation allegations, subsequently dropped, were first laid.  The Applicant submits that this swayed the Bailiff against him and furthermore contends that at a directions hearing over which I presided, as Commissioner, in December 2019, I indicated to him that the Bailiff would not be his sentencing judge in order to ensure that he had a fair and unbiased court.

10.      Accordingly, the key factors in his application are said to be:

(i)        Wrong information was put forward by the Applicant's lawyer, namely that the Applicant was intending to sell some of the drugs imported;

(ii)       The Court was not told that the property had been under surveillance for some time;

(iii)      The Crown was wrong to assert that the Applicant broke the letterbox on 8^th March 2019, because the tenant of the property had said in a witness statement that he had reported to the landlord on 27^th February 2019, that the letterbox had been broken; and

(iv)      The sentencing judge (the Bailiff) had a conflict of interest because he was aware of previous charges that were dropped, a conflict which had been recognised by the Royal Court on at least one previous occasion.

11.      The decision on these applications has taken longer than it might, for two reasons.  First of all, the Greffier has made a thorough search of the materials in the Court to ascertain whether any indication was given to the Applicant, either by me or by any other judge, that the Bailiff would not preside over the sentencing hearing as result of his presiding over a court when the Applicant was indicted for charges which were subsequently withdrawn.  That search involved not only looking at the Greffier's notes of the relevant hearings but also listening to the tape of the Directions Hearing (in relation to what was then a prospective Newton hearing) on 10^th December 2019.  I have not personally listened to that tape but I have been informed by the Greffier that no such assurance was given.  I have personally reviewed the notes made by different Greffiers on the various occasions the Applicant was presented to the Court and there is no record of any statement being made to the Applicant as he suggests.  I have checked my own notes of that hearing which do not record any expression of anxiety in this respect by or on behalf of the Applicant, nor any assurance such as that which he now contends was given to him at the time.

12.      The second reason for the delay in giving a decision on this application is that the Applicant contends that he was pressured by his advocate into making an admission as to his intentions to sell part of the drugs, which was not true.  In the light of that contention, the Court has followed the established practice of inviting the Applicant to agree to waive legal professional privilege so that:

"...the advocate whose conduct is the subject of criticism [can have] notice of that criticism and respond to it without being impeded or hampered by considerations of client confidentiality."

See Bennett v AG [2015] JCA 019 at paragraph 6.

13.      This process being followed, the Court is able to determine whether there was an error, or a series of errors, on the part of the advocate which ought to lead to the quashing of a conviction or, as in this case, an adjustment of the sentence, on the basis that the error or errors have resulted in a miscarriage of justice.  As was noted in the English Court of Appeal in R v Clinton [1993] 2 All ER 998, the Court of Appeal is much less likely to interfere in a case where the advocate takes a decision in good faith, having weighed the competing considerations and consulted his client when appropriate, than where the advocate takes the decision in defiance of instructions and without reference to the client.

14.      The Applicant has helpfully waived privilege.  I have received an Affidavit from Advocate Haines, who represented the Applicant from 2^nd August 2019, until at least 11^th August 2020.  A copy of that Affidavit and exhibits has been provided to the Applicant but no further contentions have been received from him.  In his affidavit, Advocate Haines addresses the various issues.  As to the first, he says:

"I reject emphatically that I placed pressure on Lumb to accept a basis of plea against his will.   Lumb is a capable adult who in my experience would not agree to sign a document if he did not understand what he was signing or disagreed with it."

15.      Advocate Haines exhibits a copy of his letter to the Applicant of 4^th November 2019, which addresses not only the evidential issues but the likely sentence on the relevant count, if personal use was established.  His advice was that a sentence on that count based on personal use would be between 3 years, 6 months and 4 years, but if the Applicant proceeded to trial and lost, the sentence would be around 7 years and 6 months.  Advocate Haines and his assistant met with the Applicant at HM Prison, La Moye, on 5^th November 2020, to take instructions on the letter of advice, and the first basis of plea appears to have been signed by the Applicant shortly afterwards.  In this basis of plea, the Applicant says that the drugs were to have been for personal use only.

16.      Other procedural matters having held up the prosecution, Advocate Haines wrote to the Applicant, on 13^th May 2020, setting out the likely sentences based on commercial and personal use, and a likely sentence should he proceed with a Newton Hearing and lose that hearing.  Advocate Haines explained in his affidavit that the purpose of the letter was to give the Applicant as much information as possible so that he might provide instructions appropriately, and that it was important for the Applicant to understand the risks in the matter going forward to a Newton Hearing, especially so if he were to be unsuccessful at that hearing.  Having sent that advice on 13^th May 2020, Advocate Haines continued to prepare for the contested Newton Hearing on the count on which the Applicant was to be sentenced.  He says that he had obtained a Defence Expert Report and had also met the Applicant's employer and obtained a very detailed statement from him in terms of the Applicant's income and other matters.  Of particular concern, to Advocate Haines in relation to the Newton Hearing (which was concerned with personal use or in part commercial use) were these factors:

(i)        The amount of cocaine involved, namely 13.55 grams;

(ii)       The lack of evidence that the Applicant was a heavy user of cocaine;

(iii)      The Applicant's credibility as a witness - there was at least some material on which the prosecution would be able to contend that he had deliberately lied on interview;

(iv)      Creatine, a bulking agent for cocaine, was found in the Applicant's flat;

(v)       There was the Prosecution Expert Report which was adverse to the Applicant.

17.      I have reviewed the letter of advice which reviews likely sentencing ranges dependent upon the factual outcome of the Newton Hearing.  It carries all the hallmarks of a piece of sensible, considered advice.  Furthermore, Advocate Haines suggested a way forward - he asked that he be given permission to discuss with the Crown whether the prosecution would accept a basis which would be that "the majority of the cocaine was for Mr Lumb's personal use.  However, Mr Lumb accepts that he probably would have given some of it to friends as a gift for social use."  Advocate Haines went on, "if that basis is not accepted by the Crown then I would suggest that we go with 'at least half of the cocaine was for Mr Lumb's personal use.  Mr Lumb accepts that the other half would probably have been supplied socially to his friends free of charge'".

18.      The Prosecution did not agree the first amended basis of plea.  According to Advocate Haines, based on telephone instructions from the Applicant, he agreed what was the final basis of plea namely, "the majority of the cocaine was for the Defendant's own personal use.  He would have sold around 5 grams to a close circle of friends/acquaintances at Jersey street prices."  The Applicant signed the amended basis of plea on 9^th July 2020.

19.      In his Affidavit, Advocate Haines also rejected emphatically the suggestion that the Applicant was given the wrong information when he made the decision to put forwarded an amended basis of plea, that basis still enabling him to receive a full one third discount for the guilty plea.

20.      As to the question as to whether the Bailiff ought have presided, Advocate Haines states that he does not recall any judge at any time in the proceedings indicating that a different judge should preside - he thought that perhaps the Applicant recalled advice which Mr Haines had given him that the Jurats who sat on a Newton Hearing, if the Applicant were to be successful at that hearing, ought not to sit on sentencing because they might be influenced by what they had heard in the Newton Hearing.  I add in passing that I cannot myself see that that could form the basis of an objection in any event because the Jurats are permanent members of the Court who are well aware as to what they can and cannot take into account for the purposes of sentence, but in any event the issue does not arise here because ultimately there was no Newton Hearing in the light of the basis of plea, which was accepted by the Prosecution.

Discussion

21.      There is no evidence to support the contention that the Bailiff should have recused himself from presiding over the sentencing court because he had earlier sat when an indictment had been laid against the Applicant containing other charges, subsequently withdrawn.  The Applicant was not assured that that course would be followed, nor was there any reason why he should have been so assured.

22.      As a professional Judge, the Bailiff was well able to exclude from his consideration, if indeed he ever had to consider it, information regarding other charges against the Applicant which were not before the sentencing court. That information was not prejudicial to the Applicant anyway, because it was only to the effect that the Applicant had at one stage faced charges which had subsequently been dropped.  An informed member of the public could not reasonably reach the view that a conflict had arisen.  In any event, unless there were disagreement, the sentence itself was for the Jurats.

23.      Having fully reviewed Advocate Haines's Affidavit, and the exhibits attached to it, which have not been disputed by the Applicant, I do not consider that there have been any demonstrable errors by Advocate Haines which would lead to the view that there has been a miscarriage of justice.  It appears to me that the basis of plea signed by the Applicant on 9^th July 2020, represented a conscious decision by him to mitigate the risks which otherwise faced him on a Newton Hearing.  He took that course on an informed basis, having been properly advised.  That was his choice and it is too late now to depart from it.

24.      The Applicant contends that the Court was given wrong information in relation to the breaking of the letterbox on 8^th March 2019.  He says the letterbox was broken earlier.  This could be material because the Court below had treated the breaking of the letterbox as an aggravating factor. However, I have noted from Advocate Haines letter of advice of 4^th November 2019, that the witness statement from the occupier of Flat 9 was to the effect that "the postal box for No. 9 was damaged previously on 22 February 2019, and again on 8 March 2019." (emphasis added). There is thus nothing in this complaint.

25.      In his application for an extension of time to appeal, the Applicant contends that the sentence was both wrong in principle and manifestly excessive.  It is quite clear that the sentence was not wrong in principle.  A custodial sentence was called for, having regard to the decision of this court in Rimmer v AG (supra).

26.      Can it be said that the sentence was manifestly excessive?  In my judgment, it is clear that it was not.  The Royal Court took a starting point of 7 years and 6 months, which falls within the guidelines set down by Rimmer, and indeed a higher starting point could have been justified on the basis that the Applicant accepted that he was the organiser of the importation, and provided a false address to which the drugs were to be delivered, thus potentially incriminating the occupier of those premises.  The quantity of drugs was in the top half of the bracket.  It cannot be said that the Royal Court wrongly fixed on 7 years and 6 months as the starting point.

27.      Sentencing is not a mechanical exercise, and although the Court below did not articulate precisely the extent to which it allowed a discount for a guilty plea, it seems that the full third was given in the light of the language of the Bailiff's sentencing remarks.  It is also clear from those remarks that the Court had regard to the basis of plea and to the various items of mitigation that were raised by Advocate Haines.  In particular, the Court mentioned that it had been referred to the case of Shahnowaz v AG [2007] JLR 221 which was described as giving "some assistance as to the principle relating to personal use although not of course as to quantity."  In other words, the court had regard to the fact that only part of the rationale for the importation, which had been organised by the Applicant, was to deal commercially in the drugs by supplying some of them to others.  It was in part an importation for personal use.

28.       If anything, there is at least an argument that the Court was generous to the Applicant in this respect.  Shahnowaz was considered (and applied) by the Royal Court in AG v MacKenzie and Richards [2011] JLR 689 where in relation to the issue of social supply the Court also said this:

"45 The gravamen of the offence of importation is that it results in the increase in the volume of dangerous drugs circulating in the country which, as described by the Court of Appeal in Gregory, is in itself an evil.  If the drugs are not in the country, they cannot be consumed, in whatever fashion.  Furthermore, applying the test in Campbell, Rimmer and Bonnar, it is perfectly possible for someone who is importing the drugs for personal use nonetheless to be extremely close to the main source of supply.  Whether the Defendant is close to the main source of supply may sometimes be a matter for which the Crown is not able to establish but in theory there is no reason why it could not be established in some cases.  Accordingly, the involvement in drug trafficking can be assessed regardless of the purpose to which the drugs will be put once they have been imported.

.......

48   In our view, similar principles apply to the supply of drugs or to the offence of possession with intent to supply.  In each case, the gravamen of the offence is that drugs have been or are intended to be supplied to others, risking damage to their health and the structure of their lives.  That they are willing participators in accepting that risk is neither here nor there as far as the offence is concerned.  The drug trafficker who deals commercially preys on their vulnerability for monetary gain.  The drug trafficker who supplies at cost with the hope of a reciprocal favour at some future date, or simply as a gift, similarly preys on their vulnerability albeit for a different purpose - not for money but for other benefits he perceives for himself.  As far as the gravamen of the offence is concerned, there is no difference.

49  Accordingly, we do not think that it is appropriate to have regard to what is termed a "social supply" as a ground for reducing the starting point, even if we were not constrained by the guidance already given, which we think we are.

50 Nonetheless, of course there is a difference between the supply of the drugs for profit and the supply of drugs as "social supply".  The extent of that difference will be a matter for the sentencing court to appreciate in considering the mitigation which has been advanced.  If the social supply amounts to recovering the cost of the drugs so that the supplier in effect has his drugs for nothing or at a discounted price, it maybe that the mitigation will not carry much weight.  If the Defendant has supplied the drugs to particularly vulnerable persons who are not in a real position to refuse by reason of their age or other vulnerabilities, it may equally be that the sentencing court will not give too much credit for the mitigation of a so called "social supply".  There is a wide variety of factual possibilities in what has been termed a social supply of drugs and we think it is better to leave the sentencing court to form its own assessment of the extent to which the explanations proffered on behalf of any defendant can properly be treated as mitigation."

29.      In the instant case, the question of personal use or commercial use does not bear upon the establishing of the appropriate starting point for all the reasons given in the cases mentioned (and indeed others).  If the drugs in question had been solely for personal use, that might well have been a matter for further mitigation in the Court below.  It appears from the sentencing remarks of the lower Court that some credit was given for the fact that some of the drugs imported in the present case were for personal use.  To that extent, in my judgment the Applicant was more fortunate than he might have been because on the application of the rationale in Mackenzie and Richards, a sale of a portion of drugs at street prices (i.e. commercially) is, in the absence of convincing evidence to the contrary, a sale for profit; and a sentencing court may well take the view that whether that profit is applied to enable the seller to have his own drugs cost free, or at a discounted price or for other purposes, is hardly relevant in the context of sentence.  Leaving that aside, however, in my judgment the decision of the Royal Court as to the appropriate sentence in the instant case was well within the bounds of its sentencing discretion having regard to the principles laid down in Rimmer.

Conclusion

30.      The extension of time sought here is only just over two weeks.  The explanation for not filing the appeal in time is that the second opinion took so long to be produced that the Applicant could not get his application into the court in time.  In my judgment, the combination of those circumstances makes that explanation understandable and while there is no explanation as to why it then took two weeks to file the application, an extension of time would normally be granted if there were anything in the appeal.

31.      However, for the reasons I have given, I consider the application for leave should be refused.  An appeal in my judgment stands no reasonable prospect of success.  Accordingly, I refuse the application for an extension of time and I refuse leave to appeal.

32.      The Applicant has the right under Article 41 of the Law to ask, pursuant to Rule 15 of the Court of Appeal (Criminal) Rules 1964 that his applications for an extension of time and for leave to appeal be heard by the full Court of Appeal.  In that event, he must so advise the Greffier within 5 days of the decisions of the single judge being notified to him.  In deciding whether or not to make that application, the Applicant should be aware of the provisions of Article 37A of the Law, which is in these terms:

 " 37A   Time spent in custody pending appeal[58]

(1)     The time during which an appellant is in custody pending the determination of the appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which the appellant is for the time being subject.

(2)     Where the Court of Appeal gives a contrary direction under paragraph (1), it shall state its reasons for doing so.

(3)     The Court of Appeal shall not give such a direction where -

(a)     leave to appeal is granted under this Part; or

(b)     any such certificate as is mentioned in Article 24(1)(b) has been given for the purposes of the appeal. "

33.      In other words, although the time spent in custody pending an appeal usually forms part of the sentence served, the Court of Appeal may determine otherwise.  In particular, if there is no merit in an appeal, an appellant, or an applicant for leave, takes the risk that the court may order that the time he has spent in custody pending the appeal shall not count towards the time spent in custody for the sentence imposed.  It may be thought that is particularly a risk in circumstances where not only have there apparently been two sets of lawyers advising there are no grounds for appeal but there has also been such a decision by a single judge to the same effect.

Authorities

Customs and Excise (Jersey) Law 1999. 

AG v Lumb [2020] JRC 159. 

Crichton v Parker-Smith [2008] JCA 039. 

B v N [2002] JLR Note 29. 

Palata Investments Limited v Burt & Sinfield Limited [1985] 1 WLR 942. 

Pitmans v Jersey Evening Post and Another [2013] JCA 149. 

La Solitude Farm v AG 1985-6 JLR 1. 

Court of Appeal (Jersey) Law 1961. 

Rimmer v AG [2001] JLR 373. 

Bennett v AG [2015] JCA 019. 

R v Clinton [1993] 2 All ER 998. 

Shahnowaz v AG [2007] JLR 221. 

AG v MacKenzie and Richards [2011] JLR 689. 

Court of Appeal (Criminal) Rules 1964