Jersey Unreported Judgments

Drugs - application for leave to appeal sentences of imprisonment

[2021]JCA087

Royal Court

26 March 2021

Before     :

James W. McNeill., Q.C., President; George Bompas, Q.C., and; Sir William Bailhache

Nicolas Maxwell Thurban

Paul Denis Brown

-v-

The Attorney General

Advocate M. L. Preston for the First Applicant Thurban.

The Second Applicant, Brown, representing himself.

M. R. M. Maletroit Esq., Crown Advocate for the Respondent.

JUDGMENT

BAILHACHE JA:

Introduction

1.        The Applicants seek leave to appeal against sentences imposed by the Royal Court (Clyde-Smith, Commissioner, sitting with Jurats Thomas, Christensen and Dulake) on 23 September 2020 (AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 191A).  The main charges concerned a conspiracy involving the Applicants and four other Defendants importing illegal drugs into the Island on 21 June 2019.  There were also some associated money laundering charges, and in the case of the First Applicant, a charge of possession of MDMA tablets.  The First Applicant, who was aged 62 at the date of sentence, received a custodial sentence of 13 years and 6 months imprisonment and the Second Applicant, who was 59 at the date of sentence, received a total of 12 years' imprisonment.  They seek leave to appeal on the ground that the sentences imposed were manifestly excessive in all the circumstances, which we describe in more detail below.

The Facts

2.        Two of the conspirators were resident in Jersey.  The two Applicants were resident in England.  As described in the Court below (AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 212):

"The importation took place on 21 June 2019, using a yacht chartered from Hamble Point Marina.  Unbeknownst to the Defendants, they were under surveillance in what Crown Advocate Maletroit described as the most complex drug investigation ever undertaken by the Jersey Authorities.  The drugs were seized shortly after being brought into the Island and comprised:

(i)        5113 MDMA tablets with a wholesale value in Jersey of between £20,000 and £30,000 and a street value of between £76,000 and £127,000.

(ii)       Approximately 2kg of MDMA powder with a wholesale value in Jersey of between £84,000 and £112,000 and a street value of between £158,000 to £198,000.  The MDMA powder had a purity of 80%. 

(iii)      1kg of cocaine with a wholesale value in Jersey of between £56,000 and £70,000 and a street value of between £116,000 and £145,000.  It was of high purity (71%) and if adulterated to produce 4 - 5kgs it would have a wholesale value of between £168,000 and £280,000 and a street value of between £320,000 and £500,000.

(iv)      49 x 100g bars of cannabis resin with an actual weight of 4680g, with a wholesale value in Jersey of between £39,000 and £58,000 and a street value of between £70,000 and £94,000."

3.        On any analysis, that represents a very substantial quantity of Class A and Class B drugs imported into the Island.  Such an importation triggers the application of a line of cases which have set sentencing guidelines.  Frequently, the advice as to the likely sentences and/or the sentences themselves result in defendants acknowledging that they have made serious mistakes in agreeing to participate in the offences in question, as indeed Mr Brown said to us on his appeal.  The fact remains that actions have consequences.

4.        The sentencing decision was handed down on 23 September 2020, and detailed reasons were delivered on 14 October 2020, reported at [2020] JRC 212.  In giving those detailed reasons, the Commissioner helpfully set out the Crown and defence submissions as to the appropriate starting point, including an analysis of the roles of the different conspirators, and the Crown's conclusions as to the appropriate sentence.  It is clear that the Court accepted the Crown's assertion that a co-defendant, Hughes, played the lead role, albeit he was not considered to be at the top of the chain.  Nonetheless, Hughes was in contact with all the key players.  His role included planning for the onward distribution of the drugs following the importation, as well as the collection and laundering of cash that was needed to fund the enterprise. 

5.        On 18 June 2019, having been unable to find a suitable vessel in Jersey, Hughes travelled to Southampton where he met with a co-defendant, Roy and they attended at Hamble Point Marina to arrange the charter of the yacht.  Hughes and Roy sailed the yacht from Hamble Point Marina to Lymington where it was handed over to the First Applicant and a co-defendant Sait.  Hughes was seen on CCTV in possession of a mobile phone which it appears was later handed to the Second Applicant either by him or by someone else, and Hughes then travelled to Jersey where he met the Second Applicant on the evening prior to the importation in furtherance of the conspiracy. 

6.        The Crown submitted that the First Applicant joined the conspiracy well in advance of the June importation.  The Court was informed there had been a significant volume of telephone contact between the First Applicant and Hughes in the period between 20 March 2019 and 21 June 2019 - 68 calls from Hughes to the First Applicant and 75 calls from the First Applicant to Hughes.  The Crown's submission was that the First Applicant had some involvement in arranging the importation and there was noted the comment of the First Applicant to his Probation Officer that he had been receiving a weekly allowance to play his part in the criminal enterprise which he used to support himself until his arrest.  He was to receive his share of £25,000 for participating in the conspiracy.  Over the course of two days, the First Applicant played a key role in transporting the drugs to the Island, because he sailed the yacht from Lymington to Brixham and then to Jersey.  The AIS system was turned off as the vessel approached the Island.  Furthermore, the Crown relied on the fact that the possession charge which the First Applicant faced in relation to 8 MDMA pills found in his possession were from the same batch as the main consignment, which suggested a higher level of knowledge and involvement than that of a mere courier, who would not have been expected to have such a level of control over the drugs to allow himself a personal quantity.

7.        Before the Royal Court, Advocate Preston challenged the Crown's assessment of the First Applicant's role and involvement, suggesting that he was a boat man and no more than a skilled courier.  It was said that he gave no instructions, did not source the drug and was not involved in the planning, or the distribution of the drugs in Jersey or the laundering of the proceeds.  No suggestion was made that a Newton Hearing should be held and subsequently the Court accepted the Crown's assessment of his role and involvement.

8.        As far as the Second Applicant is concerned, he was described by the Crown as the shore party.  He joined the conspiracy relatively late, although it is noted that between 17 April 2019 and 24 May 2019 he transferred a total of just short of £4,800 in seven transactions to the account of the First Applicant, that money having been credited to his account in cash shortly before each transfer.  We can infer that that money was illicit because the Second Applicant would not disclose to us, when asked, the identity of the person transferring the cash into his account.  The evidence was that he was handed a mobile telephone in the United Kingdom on 19 June 2019, which had pre-programmed numbers within it to enable contact with Hughes and either the First Applicant or Sait, both of whom were on board the yacht in question.  The Second Applicant travelled on a flight from Gatwick to Jersey on 20 June 2019, and on his arrival, he hired a car.  Shortly afterwards, he met Hughes and they had dinner at a restaurant in Gorey.  The Second Applicant checked into a local hotel where he paid cash in Jersey denominations for two nights' accommodation.  As he had no previous connection with the Island, and no reason to travel to the Island, it is a reasonable assumption that the cash in question was furnished by Hughes.  On the morning of 21 June 2019, the Second Applicant was observed in St Catherine's and Bel Val Bay, where he was clearly familiarising himself with the location for the planned importation.  He was later observed in the town centre, carrying a white Topman plastic bag.  He attended in a retail store where he purchased a black Euro hike bag, a torch and a camper mat before returning to his hotel.

9.        Between 4.00 p.m. and 7.00 p.m., the Second Applicant was observed in various areas in the east of the Island.  He was also from time to time using the mobile phone to communicate with either the First Applicant or Sait, presumably receiving updates on the journey and the expected time and place of arrival.  At 7.10pm he was observed sitting on a bench at Bel Val looking out to sea as Sait launched a tender from the yacht which he and the First Applicant had sailed over from Lymington Harbour.  The Crown contend that when Sait landed on the beach, he met the Second Applicant, who handed him a black bag containing cash Sait exchanging with the Second Applicant two black rucksacks containing the drugs.  The Second Applicant was kept under surveillance as he walked back up the beach, and Sait was observed rowing the tender back to the yacht.

10.      The officers momentarily lost sight of the Second Applicant as he took a footpath at the top of the beach, and when he was next seen, he was no longer in possession of the rucksacks.  A member of the public alerted officers to seeing a male on the footpath and hearing something being thrown into the bushes.  Officers located the two rucksacks in the bushes, both of them containing drugs.

11.      The Second Applicant attempted to leave the area in his hire car, but was stopped by officers outside St Catherine's Lifeboat Station and arrested.  The yacht was intercepted by a UK border agency vessel and the First Applicant and Sait were located below deck and arrested.  Found on the vessel was the black Euro hike bag which the Second Applicant had purchased in Jersey and handed over to Sait on the beach, which contained the Topman carrier bag which the Second Applicant had been seen carrying earlier that day, within which was £20,610 in cash.  There was also some lager and cigarettes which the Second Applicant had purchased in Gorey Village.

12.      Also found on the yacht was a satchel bag which was found to contain the First Applicant's passport and various personal documentation, two mobile phones, a sim card and a clear resealable plastic bag containing 8 blue MDMA tablets.

13.      In Jersey, two further mobile telephones were seized from the Second Applicant's hire car and hotel room.  The forensic examination showed that the First Applicant's DNA was almost fully represented on a sample taken from the Eurohike bag and his DNA was fully represented in samples taken from the rucksacks 1 and 2.  The Second Applicant's finger prints were found on the Topman bag which contained the cash, and his DNA was fully represented on a sample taken from rucksack 2.  On interview on 23 June 2019, the First Applicant refused to sign a bank disclosure authority and mostly provided 'no comment' answers to the questions put to him.  When asked about the 8 MDMA tablets and whether they came from the main consignment he responded "no comment, I am sure that your analysis will come up with the answer to that.  But without doubt it will say no, I can guarantee you that", and he further clarified by saying "I had no contact with the material".  He stated that he had never seen the Euro hike bag which contained the cash. 

14.      The Second Applicant also declined on interview to sign a bank disclosure authority or to provide access to his social media accounts.  He confirmed that he had hired the vehicle from Jersey Airport and that the wallet and Nokia mobile phone found in the car belonged to him.  He otherwise provided no comment answers to all other material questions.

15.      The Social Enquiry Report in relation to the First Applicant, when analysing the offence, indicated that he described himself as the "boat guy", as he had knowledge of the sea having been in the Merchant Navy.  He apparently did not wish to minimise his involvement, and accepted his guilt, being fully aware that his actions were illegal, and indeed of the consequences which would flow from them.  He maintained, however, that he was not informed of the extent of the operation (he believed there to be approximately £250,000 worth of cannabis and ecstasy) and he said he was not a significant part of the operation nor involved in any of the planning.  He had been approached by an acquaintance whilst living in London and he knew some of his co-defendants from the area in which he lived.  At the time he was approached he had very little income.  His family in the United Kingdom were facing eviction and he was struggling to support his partner and family in Jamaica.  He described his motivation to participate in the operation as being "a last-ditch attempt" to stabilise his financial situation, and he therefore agreed to the part he played in the operation for which he would be paid £25,000.  He expressed regret for the impact the drugs would have on the Island had they not been seized, an Island of which he was fond, having grown up here.  The First Applicant's understanding as to the quantity of drugs to be imported was also set out in his basis of plea, which the Crown did not accept.  It is right to add that although the First Applicant had a relatively minor criminal record with the States of Jersey Police, involving some road traffic offences and the possession of cannabis in 1982, there was a more serious criminal conviction at the Criminal Court of Cherbourg in France in 2015, when he was imprisoned for a total of 2 years and fined €192,840 for improper importation of Class B drugs and also the supply of cannabis resin.  The facts of that conviction were not dissimilar - he attempted to import 32kgs of cannabis resin by boat, but the vessel was intercepted by French Customs Officers before the vessel reached the shore. 

16.      The Second Applicant had no relevant historic convictions, and played a role as the shore party.  At some point, he had been handed, presumably by Hughes, a large sum of cash which he handed to Sait in exchange for the drugs.  The Crown took the view that the Second Applicant probably realised he was under surveillance, which was his reason for discarding the rucksacks containing the drugs.  Like the First Applicant, he submitted two bases of plea, neither of which was accepted by the Crown.  The initial basis of plea did not establish the mens rea requirement for the conspiracy offence, and the revised basis contained assertions about his state of mind which the Crown did not accept.  In the Social Enquiry Report, reference was made to the Second Applicant's assertions that he had no idea about the scale of the operation or the amount of drugs.  He claimed to have no idea about Jersey's sentencing policy in relation to drugs importation and supply, and he recognised he had made a poor decision to become involved for financial reward - he says he was offered between £3,000 and £5,000 for his participation - and he did not consider the repercussions of what he was doing.  Sait, who is the Second Applicant's nephew, is the only one of the co-defendants' whom the Second Applicant knew prior to the operation.  Indeed, he apparently did not know that Sait was involved until he called the First Applicant on board the yacht, and was told then. 

17.      The Second Applicant contends that he met Sait on the coastal footpath and the transfers took place there rather than on the beach. It does not seem to us that much turns on this, although the Second Applicant asserts that it was only, when Sait handed him the two rucksacks, saying , "this is not what you think it is"   that he became aware that the content of the rucksacks was more than just cannabis.  He became very anxious, panicked and threw the bags containing the drugs into some nearby bushes.

The starting point

18.      In accordance with the decision of this Court in Rimmer, Lusk and Bade v AG [2001] JLR 273 the Royal Court proceeded in the present case to assess the starting point for the offence committed before applying personal mitigation.  That starting point required an analysis of the role which each conspirator played in the offence.  A major factor in assessing the seriousness of the offence, and therefore the starting point, is the weight of the drugs which are the subject of the trafficking charge.  Count 2 involved a conspiracy to supply 2kg of MDMA powder with a purity of 80%.  The charge therefore fell into the bracket of 400g and over, giving a starting point of 14 years imprisonment or more.  The street values are of less importance but should always be in evidence so they can be considered where they are truly relevant.  Where the degree of purity is very high, at about 75% or greater, it may be appropriate in particular cases to increase the starting point to take account of that, because a consignment of such high purity is much more likely to be "cut", and secondly, if not cut, will do greater harm to those who consume the drugs.

19.      In this case, the conspiracy to supply drugs in Jersey involved four different consignments of drugs.  Substantial quantities of each drug were involved.  As a result, the principles set out in Valler v AG [2002] JLR 383 apply - in fixing the starting point for sentencing in a case where there has been trafficking in substantial quantities of more than one type of drug, it was appropriate to take account of this fact by increasing the starting point for the most serious offence and imposing concurrent sentences for the other offences.  In the present case, the quantities reflected in Counts 1, 2 and 4, were significant and in respect of both Applicants, and indeed also in respect of Hughes, Sait and Roy, the Court resolved on a Valler uplift of 2 years.  In the event therefore, adding in the Valler uplift, the Royal Court fixed on the following starting points in relation to Count 2:

(i)        Hughes - 19 years imprisonment

(ii)       First Applicant 18 years imprisonment

(iii)      17 years and 6 months imprisonment

(iv)      Second Applicant - 17 years and 6 months imprisonment

(v)       Roy - 18 years imprisonment.

20.      The First Applicant contends that the starting point for him was fixed at too high a level.  It is said that he spent much of the lead time up to the importation away from the United Kingdom in the West Indies, which necessarily distanced him from meaningful involvement.  His role, so it was said, involved only the sailing of the yacht from the South coast of England to Jersey.

21.      The Second Applicant contended that his starting point did not fairly reflect his very limited activities - he had joined the conspiracy at a late stage and he was not involved in the planning or organising of it, in procuring the drugs in the United Kingdom, in their transportation to the yacht and subsequent transportation to Jersey, or the sourcing of the cash used to pay for them or their payment.  He was, as he put it, simply recruited to travel to Jersey, hire a car and assist someone initially unknown to him but later identified as Hughes who would know what to do once the drugs had been imported into the Island.  The Second Applicant contends that he was not an active member of any criminal enterprise responsible for the importation, and that he never agreed to be involved in the movement or acceptance or handling of any Class A drugs.  In the circumstances, he asserts on appeal that there is insufficient disparity between the sentencing starting point taken for him and taken for Hughes, given the latter's role as organiser and coordinator of the conspiracy and importation.  Furthermore, the Second Applicant suggests that it was unfair to add 1½ years over the starting point of 14 years under the Rimmer guidelines when taking into account that limited role. 

22.      Neither Applicant contends the Valler uplift was unfair.

23.      The Royal Court in this case was sentencing a number of conspirators who had admitted to a conspiracy to supply controlled drugs in the Island.  The fact that it was a conspiracy does not mean that the sentencing court should treat all conspirators alike.  As this Court said in Styles v AG [2006] JLR 210 at page 239:

"83.   It was contended that, because the possible range of roles in a conspiracy is vast, the Campbell starting point bands are not broad enough to deal with them.

84.  In Campbell's case, this court said quite explicitly that, in relation to the guidelines laid down for cannabis, they were to apply equally to all cases involving the trafficking of Class B drugs on a commercial basis.  Although no expressed reference was made to conspiracy, we have no reason to doubt that the Court intended to include this offence and, for our part, we can see no compelling reason for excluding it.  The application of the guidelines makes allowance for variations in role, as we shall demonstrate".

24.      The Royal Court adopted that very approach in the present case.  It is clear that different starting points were taken for the different conspirators, having regard to the Court's assessment of their roles in the conspiracy.

25.      The Rimmer guidelines provide for 14 years upwards as a starting point where 400g or more of the drug in powder form is the subject of the trafficking charge.  That starting point needs to be assessed against the statutory maximum period of imprisonment for trafficking in Class A drugs, which is life imprisonment.  In the present case, the quantity of drugs which is the subject of Count 2 was five times that figure of 400g.  Furthermore, the drugs were of a very high purity, at 80%.  The conspiracy as a whole was well planned and sophisticated, albeit the role played by both the First and Second Applicants was not as significant as that of the principal conspirator before the Court, namely Hughes.  In our view, the assessment of the starting points was well within the range of discretion available to the Royal Court when presented with the facts contained in the summary of the Crown.

26.      In the case of the First Applicant, Hughes had travelled on a flight from London to Jersey in March 2019.  On his arrival he hired a car in which surveillance officers had deployed an audio recording device.  That device recorded telephone conversations between Hughes and the First Applicant shortly after his arrival.  Four days later Hughes returned to London from Jersey and the following day he and the First Applicant flew to Panama, travelling on a joint booking which Hughes had made. 

27.      In the March conversations between Hughes and another co-conspirator, Wolff, Hughes had stated that he was in Jersey sorting out a few bits and pieces.  He had asked Wolff if she would be available to travel to Jersey for "work" and on receiving that confirmation, he told her that he would keep her posted, saying in particular that "there will be quite a bit of work coming up in the next few weeks".  Counts 8 and 9 on the indictment charged Wolff, jointly with Hughes, with removing criminal property from the Island on two separate occasions in May and June 2019 in the sum of £15,500.

28.      The Panama trip of Hughes and the First Applicant needs to be seen against the background of those recorded telephone conversations and subsequent charges.  It is unlikely in the extreme that the First Applicant had no detailed knowledge of the conspiracy from a relatively early stage; he received payments on his account of his reward for the importation while he was away in the West Indies; what is described as the telephone telecommunications map showed numerous calls between the First Applicant and Hughes and Sait; and furthermore, he played an essential part in sailing the yacht from Lymington to Jersey, an Island with whose marine waters he might be expected to be reasonably familiar from being brought up here.

29.      As to the Second Applicant, his role in the conspiracy cannot be treated as other than significant.  He flew over to Jersey in June 2019, specifically for the purpose of committing the offences in question.  His job was to collect cash from Hughes, deliver it to Sait, who would be taking it back to the United Kingdom and collect from Sait the drugs which would then be left in the car which he had hired in order that Hughes, or someone acting on his behalf, could collect them.  For this, he was to be paid £3,000 - £5,000.  Without the Second Applicant's contribution, it would have been more difficult for Hughes to distance himself from the dangerous exercise of exporting the cash and importing the drugs.  The Second Applicant's role was significant: although he says that he was taken advantage of by Hughes, in the sense that he had not expected to take sole responsibility for the collection of the drugs on his behalf once brought ashore, the fact is that he did make bank transfers of nearly £4,800 to the First Applicant during April and May 2019 when cash was credited to his accounts to enable him to do so; he did have extensive telephone contact with his co-conspirators Sait and the man identified as the principal organiser, Jones; and he did have significant information about the importation, because he had met Hughes on the evening of 20 June in Jersey for dinner; he did buy the rucksack in which the cash was to be exported.  He then did collect the cash, liaised with the incoming yacht and exchanged cash for drugs all as instructed.  Whether he threw the rucksacks containing the drugs away, as a result of his nephew telling him that "it's not what you think it is" or whether he suspected at that stage that he was under surveillance is impossible to tell, but there seems no reason to suppose that the surveillance suggestion made by the Crown is incorrect.  He must have realised that throwing the drugs away into the bushes simply on the strength of his nephew telling him that "it's not what you think it is" would have left him facing a serious problem with Hughes who was giving him the relevant instructions, which makes that explanation less than credible; or he may have intended by throwing the rucksacks deep into the bushes, as he said, either that Hughes or he could retrieve the drugs later.  None of this reduces his role.

30.      The argument put forward by the Second Applicant that his starting point does not reflect his role in the proceedings because he did not think that anything other than cannabis was being imported does not assist him.  He relies upon the statement made by this Court in Campbell v AG [1995] JLR 136, where at page 145, line 40, the Court indicated that there might be exceptional circumstances in which a genuine belief that a different drug was being carried might be relevant to sentence.  The full extract from that judgment in this respect is as follows:

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

31.      The Court of Appeal in Campbell was considering the question of the defendant's belief against the issue of personal mitigation to be set against the starting point.  The belief does not go to the role of the offender in the offence itself.  We respectfully endorse that approach.  The Court is dealing with a person who, either because there has been a guilty plea or because there has been a conviction following a trial, is accepted to have a guilty state of mind - using the traditional language, he had the necessary mens rea.  That is an essential concomitant of finding that the defendant has committed an offence.  If a defendant had the appropriate guilty intent so as to render him liable to be sentenced for what he did, it is indeed what he did which is important and not what he thought.  There are several reasons for this, the first two of which were given by this Court in Campbell;

(i)        The moral blameworthiness is the same - because it does not lie in the mouth of a defendant to claim credit for intending to do something illegal which was different to that which he actually did which was also illegal.

(ii)       The second reason is that the underlying rationale for the offence is the harm caused to the community or the victim or both.  The evil consequences flowing from the dissemination of Class A drugs are indeed not mitigated at all by the fact that the courier thought he was carrying a Class B drug.  It is also why the weight of drugs being carried is such a significant factor in establishing the starting point, because the greater the quantity of drugs, the more harm is done to the community.

(iii)      The third reason why courts are generally not willing to take into account what is said to have been the belief of a defendant is that it is generally a matter which is incapable of being established by independent evidence.  A defendant claims that he thought he was carrying Class B drugs although it turned out to be Class A; or he thought he was carrying 100 tablets but it turned out to be a 1000; or he thought it was 20% purity but actually it was 80%.  Only a defendant will know what was truly in his mind, and it would become quite impossible in nearly every case for the Crown to prove otherwise.  This is a practical reason why the Court does not pay attention to assertions of belief of this kind.  As the Court below said at paragraph 28 of its judgment:

"Just as the court will not allow mitigation for claimed threats against defendants because it is impossible to know whether the suggestion is true (see AG v Miah [2004] JRC 048 at paragraphs 8 - 10) the same principle applies in relation to assertions about a defendant's knowledge of the type, quantity or quality of the drugs.  It would be all too easy for a defendant to claim that he knew about one drug but not the others, and almost impossible for the Crown or the Court to establish whether the assertion is true or not.  Furthermore, in the instant case, each substance is the subject of a separate conspiracy charge, and the requisite mens rea has been admitted by virtue of each of the defendants' guilty plea.  Accordingly, the Court is not bound to accept such assertions.  They are not material to sentence and we make no reference to them."

32.      In the present case, we agree.  There is nothing by way of exceptional circumstances which would point in a different direction.

Discount for guilty plea

33.      The next complaint which is made is that the Court below ought to have given a full discount of one third for the guilty pleas which were entered.  In the case of the First Applicant, the Royal Court noted at paragraph 49 of its judgment that he had pleaded guilty at the earliest opportunity, but the Court considered that the guilty plea was all but inevitable.  The Court below took into account that a complex and costly trial had been avoided, and so did make a substantial allowance but did not give the full one third.  This Court notes that the drugs in question were in rucksacks in respect of which the First Applicant's DNA was wholly or substantially present; that he had in his possession Ecstasy tablets from the same batch as those which were found in the rucksacks in the bushes where the Second Applicant had thrown them; that there was on the yacht a substantial amount of cash in a rucksack which could be proved to have been purchased in Jersey, quite apart from the telephone and surveillance evidence which existed.  We do not think that the Royal Court was wrong to say that a conviction was all but inevitable. Having reached that conclusion, it was entitled to reduce the deduction for the guilty plea from one third and we cannot fault its approach in that respect in this case.

34.      The Second Applicant also did not receive a full one third deduction for a guilty plea.  He approaches the question of that discount in a slightly different way - he asserts that he has been more harshly treated than perhaps a solo courier would have been treated, because of the involvement of others and the overwhelming publicity surrounding a conspiracy by multiple defendants.

35.      In particular, he complains that one of his co-accused received a full discount for his guilty plea (Roy) whereas he and Sait did not.  The Royal Court did say that Roy would receive a full one third discount, the Court taking the view that there was little personal mitigation otherwise available to him, albeit that the Court noted the letter of remorse and the references, as well as his personal history.  In other words, the Court seems to have wrapped up Roy's personal mitigation with the discount for a guilty plea and ended up at a total for mitigation of one third.

36.      There is nothing wrong in approaching sentence that way.  While it is essential that the reasoning of the sentencing court is clearly understood, there is no obligation on the court to identify how much is taken off a starting point for particular items of mitigation.

37.      However, even on the assumption that no other personal mitigation was allowed in the case of Roy, the Royal Court was entitled to reach the view that the guilty plea in his case was more valuable because he faced a lesser chance of conviction on all the evidence than did the Applicants for whom conviction was all but inevitable.  This was indeed the express finding of the court below, which by way of contrast noted in terms the almost inevitability of the convictions of the two Applicants.

Disparity

38.      Nonetheless, we add a few remarks about the question of disparity.

39.      The question of disparity arises also in relation to contentions from both the First and Second Applicants that the sentences which they received should be compared with those of their co-conspirators and, given the role of each respectively, should be much lower.  Advocate Preston relies upon the case of Rae v AG [2017] JCA 197.  At paragraph 20 of that judgment, this Court referred to Bevan v AG [2003] JCA 014 and accepted the proposition that where the principal participant in the offence was being sentenced alongside someone who was merely on the periphery and is involved to a far lesser extent, the Court should interfere if there was a disparity in sentence which led to a justified sense of grievance.  The Court noted that in Bevan, that court had adopted the words of Judge Colston QC in Rugg [1977] 2 CR APP R 350, at page 352, where the Judge had said:

"..... where an appellant has received a sentence which is not excessive for his offence but a co-defendant whose culpability is not significantly different has received a less severe sentence which is unduly lenient, the Court of Appeal may reduce the appellant's sentence if the disparity is so substantial that the appellant has a justified sense of grievance."

40.      In Fawcett [1983] 5 CR APP R [S] 158, the court said this:

"The approach of the court was to ask to whether the right-thinking members of the public, with full knowledge of the relevant facts and circumstances, would consider that something had gone wrong in the administration of justice."

41.      It is clear that an appellant has to show not only a sense of grievance but also a justified sense of grievance, even on those authorities cited.

42.      In Harrison v AG [2004] JLR 111, Nutting JA said at paragraph 31:

"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 although there is some fresh matter to be taken into account; or

(d)       where the sentence was wrong in principle or manifestly excessive.  [Citation from Archbold, Criminal Pleading, Evidence and Practice (2003 Edition)]"

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 of 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 not withstanding 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 in Morgan set out above."

43.      It is appropriate to note that since the decision of this Court in Bevan, provision was made by the legislature in 2008 for the Attorney General to appeal sentences which are unduly lenient.  Indeed, that change was introduced in England and Wales in 1988 after the decisions in Rugg and Fawcett.  In other words, if the decision in respect of a co-defendant was too lenient, there is now a remedy for that.  The real question is whether the starting point adopted and final sentence imposed by the Royal Court in the current appeal was right.  If it was, then it follows that, unless there is an excessive disparity, to change the sentence would be to make it wrong.  Accordingly, the fact that the decision in the case of the co-defendant was wrong is, absent some very special reasons, neither here nor there.  To allow an appeal on that basis is simply to make both sentences wrong.  In addition, in a multi-handed case such as the present, to reduce the First or Second Applicant's sentence on the grounds of disparity with one other sentence imposed would involve engaging the attention of the Court in relation to all the others, whether there were appeals or not.

44.      It is clear that there is a disparity, both in the starting point and in the sentence, for both Applicants.  In the case of the First Applicant, the Court arrived at a final starting point of 18 years and sentenced him to 13 years and 6 months imprisonment.  In the case of the Second Applicant, the Court took a starting point of 17½ years and sentenced him to 12 years imprisonment.  In the case of Roy, the Court took a starting point of 18 years and sentenced him to 12 years imprisonment and in the case of Hughes the Court took a starting point of 19 years and sentenced him to 14 years and 3 months imprisonment.

45.      Can it be said the circumstances that such disparity was not sufficient having regard to the quantity of drugs imported, the role which each of the conspirators played in the enterprise and their own personal mitigation?  In our judgment, the answer to that question is in the negative. The Royal Court reached a reasonable conclusion in balancing the various features of the case for and against each defendant, and we see no reason to intervene.

46.      We have set out in detail the facts which were presented to the Royal Court and underlay the assessment of the starting point in respect of each of the conspirators.  We do not think that the Royal Court's decisions in this respect can be said to have been unjustified; there is no suggestion that the sentence has been passed on the wrong factual basis; and generally we think that the Royal Court has reached a view which it was entirely able to reach on the facts presented in order to exercise its discretion as to the appropriate sentences.

47.      For all these reasons, we think there is nothing in the applications for leave to appeal, and leave is accordingly refused in both cases.

Authorities

AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 191A. 

AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 212. 

Rimmer, Lusk and Bade v AG [2001] JLR 373. 

Valler v AG [2002] JLR 383. 

Styles v AG [2006] JLR 210. 

Campbell v AG [1995] JLR 136. 

Rae v AG [2017] JCA 197. 

Bevan v AG [2003] JCA 014. 

Rugg [1977] 2 CR APP R 350

Fawcett [1983] 5 CR APP R [S] 158. 

Hanson v AG [2004] JLR 111