Court of Appeal in Northern Ireland Decisions

              IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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                                                                THE QUEEN

                                                                          v

                                                       ADELE McCONVILLE

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CARSWELL LCJ

PRINGLE J (Delivering the judgment of the court)

            The appellant was born on 7 May 1979.  On 24 September 1998 she  pleaded guilty to a charge of possessing a controlled drug of Class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971, and was on 4 January 1999 sentenced by the Recorder of Belfast, His Honour Judge Hart QC, who ordered that she be detained in the Young Offenders Centre for two years; she has brought this appeal against that order.   Another charge of possession contrary to section 5(2) was ordered to remain on the file and not to be proceeded with without leave.

            On 12 February plain clothes officers of the Drugs Liaison Unit in an unmarked car, which was in a static queue of traffic in the outside lane of the M1 motorway approaching the Broadway roundabout junction, suspected that the driver of a Ford Sierra car two cars ahead of them was Mark McKee, a person known to them.  Another car in the centre lane drew up beside the Sierra car and the driver, who was Thomas Gouldie and was known to the officers, got out and handed to the front passenger in the Sierra car, the appellant who was then aged 18, a package which appeared to be covered in plastic; Thomas Gouldie then returned to his car and both cars proceeded into the Westlink, where the occupants of both cars were arrested as the cars were in static traffic and brought to Grosvenor Road Police Station.  In the Sierra car were found £370 in cash, a mobile 'phone and a notebook belonging to Mark McKee who made no admissions and was released on bail.

            Soon after the appellant arrived at the Station she was searched by a woman officer who found no drugs on her; but a few minutes later she told the officers that she had put a bag of 100 Ecstasy tablets up inside her vagina and offered to retrieve the bag herself.  She was unable to retrieve the bag and was taken to Belfast City Hospital where an Ulster Bank money bag was removed; it was later found to contain 97 intact Ecstasy tablets and a quantity of crushed tablet fragments.  On return to the Station she was, after caution, interviewed and said that Mark McKee had been given the bag in Fruithill and she had put it in her vagina in case they were stopped by the police and searched.  She said that she was going to sell the tablets to someone who was going to sell them and that Thomas Gouldie had handed to her merely a piece of paper showing he had bought his car.

            After pleading guilty the appellant was granted bail while pre-sentence reports were prepared.  She appeared again before the Recorder on 23 October 1998 when Mr Cushinan, who appeared for her on this appeal, made a plea in mitigation.  At that time she was heavily pregnant by Mark McKee, with whom she had been living to the disapproval of her mother; it was then thought that the baby would be born at the end of that month, but it was not until 1 December that she gave birth to a baby boy.  In her report the probation officer stated that the appellant had ended all contact with Mark McKee and was reconciled with her mother.  The appellant had said that she did not play any part in drug dealing and the probation officer accepted that this was an isolated offence motivated by her desire to please Mark McKee.  The appellant had one previous conviction which has no relevance.  The probation officer suggested that a probation order was appropriate. 

            On 23 October the Recorder heard evidence from Detective Constable Pyper who was totally satisfied that the appellant had been used by Mark McKee and that this was a one-off involvement by her.  If she had not disclosed where she had hidden the drugs she probably would have been released without charge.  He considered that she would not re‑offend and that the story she told during interview was to protect Mark McKee.  Her mother in evidence said that she and the appellant who had moved back to live with her were reconciled.  The Recorder in his carefully considered sentencing remarks accepted that this was a spur of the moment one-off offence in which she had acted, not as a courier, but as a temporary custodian and which was not likely to be repeated.  He referred to guideline cases which established that when dealing with comparatively innocent couriers of drugs the courts have to harden their hearts against personal circumstances of people who are often in dire straits and set aside sympathy as misplaced.  In R v Conlon (7 2 97 unreported) the Court of Appeal stated that mothers of young children are not immune from imprisonment and cannot expect what would be a proper sentence to be reduced because of that circumstance.  The Recorder said that a custodial sentence was inevitable and whereas the sentence would normally be one of four years' detention he proposed to reduce it to two years detention, but would adjourn sentencing for six weeks so the appellant could have her child outside the confines of a prison regime.

            Due to the birth being later than anticipated the sentence was not imposed until 4 January 1999, by which time a psychiatric report from Dr Helen Harbinson was available, but the Recorder considered that it did not materially alter the circumstances of the case and imposed two years' detention as he had originally indicated.  Dr Harbinson was concerned about the level of the depression from which the appellant was suffering and the long term effect on the appellant and her son if separated at this stage of his early development; this could be said of most mothers in the appellant's situation, but the report was in fairly strong terms.  The appellant spent two weeks in detention before she was granted bail by the single judge who granted leave to appeal.

            At the commencement of the appeal Mr Cushinan was given leave to tender an up-to-date medical report from Dr Tan, the appellant's general practitioner, and to add a sixth ground of appeal as to the Recorder's failure to follow the requirements of Article 24 of the Criminal Justice (Northern Ireland) Order 1996, in that he did not consider whether it would be appropriate to make a custody probation order.  As regards this sixth ground we are confident that the Recorder, having considered the probation officer's report, had rejected the option of a custody probation order, but it would have been better if he had expressly so stated and given his reasons as required by Article 24.  Dr Tan states that the appellant's mental condition has improved significantly since she was granted bail, but he considers that a return to custody will lead to a harmful deterioration in her overall mental health.

            The main thrust of Mr Cushinan's submissions was that the circumstances made this an exceptional case which was outside the guidelines which were ordinarily applicable; admittedly such an exceptional case would be rare.

            In cases of possession of Class A drugs with intent to supply the guidelines make a custodial sentence the norm as a deterrent and as a protection for the public, but in the present case it was accepted that the appellant was not a danger to the public.  In R v Hogg and others [1994] NI 258 Hutton LCJ when delivering the guideline judgment of the Court of Appeal at page 262 stated in respect of the supply and possession with intent of drugs:

                        "In all but exceptional cases they will attract an immediate custodial sentence, which may range from one or some months in the case of a small quantity of Class B drugs to one of four or five years or more in the case of supply of appreciable commercial quantities of Class A drugs."

            If there are exceptions it is hard to think of circumstances which would be stronger in favour of an offender than those in the present case.  Her possession, although with intent, was very temporary and not for the purpose of gain for herself.  She would not have been prosecuted but for her own disclosure of the drugs, although the disclosure, as the Recorder stated, was almost certainly for fear of the consequences for herself if the drugs remained where they were; she is remorseful; she is reconciled with her mother; her association with Mark McKee is ended and she will not re-offend.  Additionally Dr Harbinson has indicated that the effect of custody on the appellant and her child may be somewhat more than for some mothers in her position.

            We entirely agree with and support the approach of the Recorder, who has great experience in these cases, that in order to discourage the use of persons such as the appellant to carry or look after drugs it is necessary to impose custodial sentences on them in all but the most exceptional cases.  On careful consideration of the factors put before us by counsel, however, we think that this case can qualify as falling within such exception.  We propose therefore to suspend the two-year period of detention for two years.

              IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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                                                                THE QUEEN

                                                                          v

                                                       ADELE McCONVILLE

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                                                                JUDGMENT

                                                                         OF

                                                                 PRINGLE J

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