2000/137
4 pages
COURT OF APPEAL
14th
July, 2000
Before: The Hon. M.J. Beloff, Q.C., President,
de
V. G. Carey, Esq., The Bailiff of Guernsey; and
C.S.C.S.
Clarke, Esq., Q.C.
Michael Thomas KENWARD
-v-
The Attorney General
Application
for leave to appeal against a sentence
of 6 years’ imprisonment passed on 6th March, 2000, by the
Superior Number of the Royal Court, to which the appellant was remanded by the
Inferior Number on 2nd December, 1999, following a guilty plea to:
1 count of: being
knowingly concerned in the fraudulent evasion of the prohibition on the
importation of a controlled drug, contrary to Article 77(b) of the Customs
and Excise (General Provisions)(Jersey), 1972:
count
1: heroin.
Leave
to appeal was refused by the Deputy Bailiff on 29th March, 2000; and
on 3rd April, 2000 the Appellant exercised his entitlement, under
Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the
application to the plenary Court.
Advocate C.R.G.
Deacon for the Appellant;
Mrs. S. Sharpe,
Crown Advocate.
JUDGMENT
CAREY, J.A:
1.
This is
the judgment of the Court in the application for leave to appeal by Michael
Thomas Kenward, who, on the 6th March, 2000, appeared for sentence
before the Superior Number of the Royal Court, having pleaded guilty before the
Inferior Number on the 29th October, 1999, to one count of being
knowingly concerned in the fraudulent evasion of the importation of heroin,
contrary to Article 77(b) of the Customs and Excise (General Provisions)
(Jersey) Law, 1972.
2.
The Court
imposed a sentence of six years for this offence and on the 29th
March, 2000, leave to appeal was refused by the Deputy Bailiff. The Applicant renews that application
before this Court.
3.
The
circumstances of the offence follow a familiar pattern. The drugs detector dog met the evening
flight from Heathrow and showed a strong interest in seat 17A on the
aircraft. The Applicant, who had
been stopped by Customs Officers, was asked to confirm that he sat in seat
17A. He said he had nothing to
declare and could not explain the interest of the dog. He was searched and was found to be
carrying heroin strapped to his genitals. He also drew the attention of
Customs to other heroin which was in the hollowed out heels of the shoes he was
wearing and a second pair of shoes in his luggage. The total amount of heroin found was
307.06 grams of a purity of between 75% and 81% by weight. We will return later to the significance
of this. The Applicant was
co-operative with the interviewing officers. He will be sixty years of age in
August. He has been living in
Thailand. He had previously been
divorced from his wife in England and has a family of grown up children
there. He had exhausted his
savings. We are told that he has a
common law wife in Thailand. She
has two children under ten whom the Applicant has adopted. He told the Customs that he had been
approached by a man in Thailand who had befriended him. This man had paid his flight to London
to visit his pregnant daughter and in order to pay off this debt the Applicant
had agreed to travel to Jersey carrying the heroin in the manner already
described. He said he did not know
the drug was heroin but he knew that it was something illegal because of the
way in which he was asked to hide it.
4.
The
starting point for the Royal Court was 14 years. Miss Deacon says this is too high and
contends for 13 years in lieu. This
was a large consignment of heroin, a particularly addictive Class A drug. The street value was said to be over
£92,000 without any allowance for dilution. We have noted what was said by this
Court about anticipating dilution in assessing street values in Campbell,
Molloy and MacKenzie -v- A.G. (1995) JLR 136 CofA at 149, and also its
comment on weight and street value in the second half of page 146 of the same
report. We would not disagree with
anything the Court then said, but R. -v- Aranguran
[1994] 99 Cr.App.R. 347 appears now to be settled authority that English
Courts, when dealing with substances like heroin and amphetamine, should follow
guidelines which relate to the weight of the pure drug involved in the
consignment rather than to its street value. For the purposes of this case we need
only draw attention to the fact that this consignment contained heroin of the
highest purity found so far in Jersey.
Therefore it may be necessary for the Court, as part of its sentencing
exercise, to start to take into account issues of purity. If this is done in this case (as we
consider it should) the starting point of 14 years does not look unreasonable.
5.
The Royal
Court proceeded to make a number of deductions. Firstly there was a deduction of two
years for the guilty plea. Unlike Bruton
-v- A.G. (14th July, 2000) Jersey Unreported CofA, upon which we
have also delivered judgment today, this was, in our view a case where there
was no realistic chance of acquittal as the drugs were strapped to the
Applicant’s body. We accept
that the Applicant assisted the Customs Officers by pointing out other drugs
that he was carrying. We are told
they would be found in any event, although we accept that the Applicant might not
have appreciated this.
6.
A further
two years was allowed to take into account the Applicant’s age,
co-operation and previous good character.
7.
Lastly the
Applicant was prepared openly to tell the Court that he had named his
supplier. For this he received an
allowance of four years.
8.
Breaking
the allowances down in this way does help this Court to understand the
reasoning of the Court below, but it does give ammunition to Counsel for
Applicants to argue that a particular part of the allowance is not sufficiently
generous and also to try and draw out inconsistencies with other decisions.
9.
At this
juncture we would like to make an observation about the utility of the
reference by Counsel in this area to other decided cases. Guideline cases of an Appellate Court
are always of assistance, that indeed is their purpose. But a guideline case such as Campbell
itself constantly refers to the principle, manifestly correct, that guidelines
have always to be adapted to the facts of any particular case. It is therefore of limited utility to
refer to decisions, particularly those of Courts sitting at first instance,
which are (or should) be applying those guidelines to the cases before
them. Not only do such cases turn
substantially on their own facts; the facts themselves available and taken into
account by the Court may not always appear on the face of the judgments; and a
read across from one set of facts to another is often a vain exercise. Moreover, in the Royal Court of Jersey
(and Guernsey), unlike Courts in England and Wales, the Crown has no right to
appeal against lenient sentences.
We therefore express the hope that for the better conduct of court
business, in future Counsel will be sparing and selective in what they cite,
and make use of earlier cases (other than guideline cases) only where they can
be said to illuminate, preferably expressly, a proper general approach to a
common form factual situation.
10.
Rather
than a compartmentalised approach, we prefer the comprehensive approach found
in Archbold (2000 Ed’n) at the end of paragraph 5-160 where it refers to
offenders who have assisted the police.
“For such assistance the
discount is greater than the normal discount for pleading guilty: R. -v-
Wood [1997] 1 Cr.App.R.(S.) 347, CA, but the sentencer should determine the
final sentence by calculating a single discount taking into account all
the relevant factors, including the plea of guilty and the assistance given
to the authorities as in R. -v- Sehitoglu and Ozakan [1998] 1 Cr.App.R.(S) 89, CA.”
11.
The
Applicant is a sad individual and clearly the Bailiff and Jurats had an
invidious task in deciding the balance between the mercy that justice required
be afforded to him and the need to discourage like minded older members of
society without criminal records taking up this kind of assignment. The discount to the starting sentence of
14 years was approximately 57% and by any reckoning this was generous and in
our view displayed the appropriate degree of mercy.
12.
Accordingly,
despite all the submissions that have been so well put forward on his behalf by
his Advocate, we refuse leave to appeal.
Authorities
Asher Sivan & Ors (1988) 10 Cr.App.R.(S) 282.
Archbold (200 Ed’n):
paras 5-160 to 5-163.
AG -v- Le Tarouilly (2nd
December, 1996) Jersey Unreported.
AG -v- Dowse & Heys (20th
January, 1997) Jersey Unreported.
AG -v- Lunt (22nd
June, 1998) Jersey Unreported.
AG -v- Schorah & Wright
(22nd February, 1999) Jersey Unreported.
Wright -v- AG (12th
July, 1999) Jersey Unreported CofA.
AG -v- Shoesmith (19th
March, 1999) Jersey Unreported.
AG -v- Chadwick (30th
October, 1995) Jersey Unreported.
AG -v- Jones & Raynor (6th
June, 1996) Jersey Unreported.
Bray -v- AG (27th
January, 2000) Jersey Unreported CofA.
Campbell, Molloy and
MacKenzie -v- AG (1995) JLR 136 CofA.
Bruton -v- AG (14th
July, 2000) Jersey Unreported CofA.
R -v- Aranguran
[1994] 99 Cr.App.R. 347.
R -v- Wood [1997] 1
Cr.App.R.(S) 347 CA.
R -v- Sehitoglu
& Ozakan [1998] 1 Cr.App.R.(S) 89 CA.