2001/148
COURT OF APPEAL
19th July 2001
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Before:
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R.C. Southwell, Esq., Q.C., President;
The Hon. M.J. Beloff, Q.C., and
C.S.C.S. Clarke,
Esq., Q.C.
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Ronald Anthony Rimmer
Royston Andrew Lusk
Steven Gavin Bade
-v-
The Attorney General
Ronald Anthony Rimmer
Appeal against a sentence of 8
years’ imprisonment passed on 12th April, 2001, by the Superior Number of
the Royal Court, to which the appellant was remanded by the Inferior Number on
9th March, 2001, following a guilty plea to:
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1 count of:
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Being knowingly concerned in the
fraudulent evasion of the prohibition on the importation of a controlled
drug, contrary to Article 6 1 (2)(b) of the Customs and Excise (Jersey) Law
1999:
Count 1: cocaine
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Leave to appeal was granted by the
Deputy Bailiff on 5th June, 2001.
Royston Andrew Lusk
Appeal against a total sentence of 8
½ years’ imprisonment passed on 12th April, 2001, by the Superior
number of the Royal Court, to which the appellant was remanded by the Inferior
Number on 6th April 2001, following a guilty plea to:
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2 counts of:
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Possession with intent to supply a
controlled drug, contrary to Article 6(2) of the Misuse of Drugs (Jersey)
Law, 1978;Count 1: heroin, on which count a sentence of 8 years’
imprisonment was passed;Count 3: heroin, on which
count a sentence of 8 years’ imprisonment, concurrent, was passed.
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1 count of:
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Possession of a controlled drug,
contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:Count 2:
heroin, on which count a sentence of 3 months’ imprisonment, concurrent,
was passed;
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1 count of:
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Escaping, without force, from lawful
custody, contrary to Article 22(A) of the Prison (Jersey) Law, 1957, on which
count a sentence of 6 months’ imprisonment, consecutive, was passed.
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Leave to Appeal was granted by the
Deputy Bailiff on 10th May, 2001.
Steven Gavin Bade
Appeal against a sentence of 9
years’ imprisonment, passed on 3rd May 2001 by the Superior
Number of the Royal Court, to which the appellant was remanded by the Inferior
Number on 6th April 2001, following a guilty plea to :
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1 count of:
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Being knowingly concerned in the
fraudulent evasion of the prohibition on the importation of a controlled
drug, contrary to Article 61 of the Customs and Excise (Jersey) Law, 1999:
Count 1: diamorphine.
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Leave to appeal was granted by the
Deputy Bailiff on 5th June, 2001.
Advocate A.D. Hoy for R.A. Rimmer.
Advocate R. Juste for R.A. Lusk.
Advocate S.E. Fitz for S.G. Bade
The Attorney General.
JUDGMENT
THE President:
1.
This is
the judgment of the Court. These
three appeals have been heard together, not, the Court emphasises, because
there is any connection between the three appellants or their cases, but solely
because each of the three appeals raised issues as to the guidance provided by
the Court of Appeal in Campbell, Molloy and Mackenzie v Attorney-General
(1995) JLR 136 (to which we will refer as Campbell) as to sentencing in
cases involving trafficking in Class A drugs. The particular issue to which the Deputy
Bailiff drew attention when giving leave to appeal in two of the three cases is
how to achieve consistency in deciding on the sentencing starting point in such
cases. This Court wishes to express
its indebtedness to the Attorney-General and to the Advocates appearing for the
three appellants (Advocate Ashley Hoy for Mr Rimmer, Advocate Rebecca Juste for
Mr Lusk, and Advocate Sarah Fitz for Mr Bade) for their clear and helpful
submissions.
2.
The
relevant facts in the three cases can be summarised briefly as follows.
3.
Rimmer. Mr Rimmer travelled
with another man, Mr Holding, by ferry to Jersey. They were stopped and questioned on
their arrival on 20 December 2000.
It was eventually discovered that Holding was carrying internally 102.42
grams of heroin of between 75 and 79% by weight diamorphine, and that Rimmer
was carrying internally 156.97 grams of cocaine hydrochloride, of between 66
and 75% by weight of the drug. Both
pleaded guilty when presented before the Magistrate’s Court on 10 January
2001. They appeared before the
Superior Number of the Royal Court for sentencing on 12 April 2001. There was evidence before the court that
the street value of the heroin concealed by Holding was between £30,762
and £46,089, and the wholesale value was between about £15,300 and
£20,500. Similarly there was
evidence that the street value of the cocaine concealed by Rimmer was about
£12,500, with a wholesale value of between £5,000 and
£10,000. The purity of the
cocaine was above the national average, and there was enough cocaine to make
about 167 "wraps".
Holding was 23 years old, and Rimmer was 42 years old. Holding had no relevant previous
convictions. Rimmer had several
previous convictions, including his last conviction in January 1996 in Spain
for acting as a courier of 50 kilograms of cannabis for which he had received a
sentence of 4 years and 9 months’ imprisonment. The Crown and the defendants were of
common ground that sentencing should be on the basis not of a joint venture,
but of the actual drugs which separately they were each carrying. They had not been charged as joint venturers, and the charge against Rimmer related solely to
the cocaine which he imported. As
will appear, this approach was not adopted by the Royal Court. The Crown’s conclusions were:
(1)
as regards
Holding, for a starting point of 11 years, and after allowing for mitigating
circumstances, including the early plea of guilty, his cooperation with the
authorities (which however did not extend to naming the supplier or intended
recipient), his youth and this being his first offence, for a sentence of 7
years’ imprisonment;
(2)
as regards
Rimmer, for a starting point of 9 years (having regard to the smaller quantity
and value of the cocaine he carried), and after allowing for mitigating
circumstances including the early plea of guilty and similar cooperation with
the authorities, but taking into account his age and criminal record, on a
sentence of 8 years’ imprisonment.
The Royal Court
did not approve the separate treatment of these two defendants and elected to
treat them as engaged in a joint venture.
The court decided that in the light of the Campbell guidelines
the appropriate starting point was 10 years for both Holding and Rimmer, and
imposed on Holding a sentence of 6 years’ imprisonment, and on Rimmer a
sentence of 8 years’ imprisonment.
4.
Lusk. Mr Lusk waived
voluntarily his right to be present at the hearing of his appeal because of the
serious illness of his mother in England.
On 12 January 2001 Mr Lusk flew from Manchester to Jersey. After visiting his brother’s flat
he booked into the Mayfair Hotel for 3 nights. Later that evening Lusk met another man
just outside the hotel, and both men were arrested. Heroin was found in Lusk’s
clothing weighing 82.5 grams at a concentration of 54%. His room at the hotel was searched and
more heroin was found weighing 54.4 grams at a concentration of 57%. The total quantity of heroin in
Lusk’s possession was 136.9 grams.
There was evidence before the Royal Court that the street value of the
82.5 grams of heroin was between £24,750 and £37,125, with a
wholesale value of between £12,375 and £16,500, and that the street
value of the 54.4 grams was between £16,320 and £24,480, with a
wholesale value of between £8,160 and £10,880. Thus the total street value of the
heroin in Lusk’s possession was between £41,070 and
£61,605. The evidence also
showed that heroin is now usually sold in "50" bags, containing
between 110 and 160 milligrams of powder, at £50 per bag, so that the
total amount of heroin could have been split into between 821 and 1,232
"50" bags for street sale.
Mr Lusk was charged on three counts, Count 1 for possession of the
heroin in his clothing with intent to supply, Count 2 for possession of the
heroin hidden in his room and Count 3 for possession of this heroin with intent
to supply. Lusk pleaded guilty on
each of these counts before the Magistrate’s Court on 29 January
2001. He refused to assist the
authorities with regard to lists of names and Jersey telephone numbers which
were in his possession when arrested.
5.
On 15
January 2001 Lusk was due to appear in the Magistrate’s Court. On arrival at the court Lusk escaped
from custody and ran away, but was soon after caught, having hidden in a
dustbin nearby. He was therefore
charged in Count 4 with escaping, without force, from lawful custody. He pleaded guilty to Count 4 as well on
29 January 2001.
6.
Lusk is 27
years old. He has a bad record of
criminal convictions, but only one of possession of a controlled drug committed
when he was merely 16 years old. It
was common ground between the prosecution and the defence that the explanation
which he gave to the Probation Officer was accepted and should be the basis on
which he would be sentenced. His
explanation was that as a heroin user he incurred a debt of £700. This was to be cleared by him going from
Liverpool to Jersey to test the quality of heroin which had been supplied to
Jersey and the quality of which had been challenged by the Jersey drug
dealer. As previously arranged, he
left his hotel room unlocked and on his return found the heroin deposited there
for him to test. He had tested
three of the bags before he was arrested.
He did not bring the heroin into the Island, and had it in his
possession solely for the purpose of testing.
7.
The Crown
in its conclusions adopted a starting point of 10 years for Counts 1 and 3, and
moved for the following sentences on the four Counts;
Count 1: 8 years’ imprisonment
Count 2: 3 months’ imprisonment
concurrent
Count 3: 8 years’ imprisonment
concurrent
Count 4: 6 months’ imprisonment
consecutive to Counts 1 and 3
and therefore a total of 8½
years’ imprisonment.
8.
Regrettably
a small part at the beginning of the Royal Court’s sentencing judgment
was not recorded. Those responsible
for the recording need to take care to inform the Court if the machinery is not
working so that the Court can wait to deliver its judgment until after the
recording machinery has been put into working order. Where there is no recording, it is the
duty of the advocates for the Crown and for the defence to prepare an agreed
note of the judgment (or the missing portion) and to submit this note to the
judge who presided in the sentencing court for his approval or correction. These steps were not taken in this case.
9.
It appears
that in its judgment the Royal Court, though it expressed some scepticism about
Mr Lusk’s explanation, made clear that it was sentencing on the basis of
this explanation. The Royal Court
adopted the Crown’s conclusions including the starting point of 10 years,
and sentenced Mr Lusk accordingly.
10. Bade. On 4 February 2001 Mr Bade and Ms Moss
arrived at Jersey Airport from Southampton. They were stopped and questioned by
customs officers. It was in due
course found that Mr Bade had concealed internally 86.43 grams of heroin
containing between 49 and 54% by weight of diamorphine, with a street value in
Jersey of between about £26,000 and £39,000. Moss also had heroin concealed
internally amounting to 83.28 grams of heroin. Both pleaded guilty to charges of
illegal importation. Bade is 25
years old with already a bad record of prior convictions and has spent a
substantial period in custody mainly for offences of burglary committed to pay
for drugs. Ms Moss was 18 years old
and had spent time in youth custody for supplying heroin. In both cases the Crown’s
conclusions were for a starting point of 12 years, with a sentence of 6
years’ youth detention for Moss and of 10 years’ imprisonment for
Bade. In both cases the Royal Court
took a starting point of 11 years, and it sentenced Bade to 9 years’
imprisonment and Moss to 6 years’ youth detention.
11. We should at this point make it clear that
later in this judgment we will be returning to each of the appeals in greater
detail, and at that stage will consider fully the mitigating circumstances
relied on by each appellant.
The Guidelines
12. As the Attorney General made clear in his
written submissions these and other cases involving sentencing for drug
trafficking raise difficulties for the Crown and the Courts in deciding on the
appropriate starting points on which such sentences are to be based. He produced a number of tables showing
the starting points adopted in cases since the guideline case of Campbell,
and pointed to apparent inconsistencies in greater detail than those mentioned
by the Deputy Bailiff: see paragraph 1 of this judgment. The advocates for the appellants as well
as the Attorney General referred to a large number of other sentencing cases.
13. Before coming to the Campbell guidelines we
consider it appropriate to cite and endorse part of the judgment of this Court
in Wood v Attorney General (15 February 1994, unreported) from pages 3 -
4. Wood was decided before Campbell,
but what was said in Wood applies today just as much as in 1994. This Court said:
"It is necessary to refer to
earlier cases when dealing with appeals against sentence in order to ensure, as
far as possible, that the right degree of consistency is achieved between one
case and another. Indeed it is for
this purpose that both this Court and the Royal Court have, on occasion, when
passing sentence, not only dealt with the particular offender before them, but
have also laid down guidelines to be followed in subsequent cases.
It is necessary and important
however to remember that reference to earlier cases is made in order to see the
principles and guidelines which have been laid down there and to follow them.
The purpose of referring to earlier
cases is not to analyse the exact sentence which was then passed and the
precise reasons why the Court arrived at it. This would be an impossible undertaking
since sentencing is a discretionary exercise in every case and the reports do
not include every feature which influenced the Court in exercising its
discretion on earlier occasions.
We notice a tendency, particularly in
appeals against sentence in drug related cases, to try to calculate the exact
effect given by the Court in earlier cases to each factor and then to say that
those effects must be reproduced in the case in hand. This is a misleading exercise
since, as I have said, it is impossible from the reports to discover every
consideration which influenced the Court.
It is also an exercise which, if it could be achieved, would be inconsistent
with the discretionary nature of the sentencing function. That discretion, like all discretions,
has to be exercised on proper grounds and with due regard to relevant
principles but the important fact remains that in deciding upon the sentence in
every case the Court is exercising its discretion upon the facts of that
case."
14. We add and similarly endorse this further
quotation from the recent judgment of this Court in Kenward
v. Attorney General (14th July 2000) Jersey Unreported CofA;
[2000/137]:
"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."
15. Turning to Campbell, at 1995 JLR pages
140 - 141 this Court emphasised that Jersey as a separate jurisdiction sets its
own sentencing levels to meet the social and penological
needs of the community in this Island. We refer to and endorse as fully
valid today the observations of Neill JA (now Lord Neill of Bladon QC) in Attorney
General v Pagett (1984) JJ at pp. 64 - 65. This Court in Campbell then at
pages 141 - 142 said as follows:
"The
approach approved by this court in relation to offences of dealing in Class A
drugs was laid down in Clarkin v. Att. Gen. in the following terms (1991
JLR at 219):
"The
correct view of the judgment of the Court of Appeal, therefore, is that it was
saying, and we wish to reiterate what it was saying, that for cases of this
nature the starting-point before effect is given to any mitigation on any
ground must be a sentence of eight to nine years’ imprisonment. By ‘cases of this nature’
the court meant cases of possession of a Class A drug with intent to supply to
others when the involvement of the defendant in drug dealing was comparable to
that in Fogg . . . .
The
degree of the appellant’s involvement in Fogg was shown by the
amount of LSD found in his possession, by the other offences which he had committed
and by his behaviour between his arrival in the Island and his arrest. We refer there to the fact that he had
only been in the Island a few hours and in the course of those few hours had
himself received this large quantity of LSD and had set about the sale of
it. Those were the factors which
showed the degree of his involvement.
It is possible that in other cases a defendant’s degree of
involvement might be shown by other factors.
The
possession of a Class A drug must always be a grave offence but if of the defendant in drug dealing is less
than that in Fogg, if, as it is sometimes put, there is a greater gap
between him and the main source of supply, the appropriate starting-point would
be lower. It is very seldom that
the starting-point for any offence of possessing a Class A drug with intent to
supply it on a commercial basis can be less than a term of six years.
We
repeat, so that there may now be no doubt, that the figures which we have
stated are figures for starting-points before any mitigation is taken into
account on any ground.”
The
Attorney General informed us that this approach had been very helpful and,
indeed, had been adopted both by the Crown in moving conclusions and by the
Royal Court in passing sentence in many subsequent cases.”
16. The case of Fogg v Att. Gen referred to
by the Court of Appeal in Clarkin v Att. Gen. is reported at 1991 JLR
31. The Attorney General before us
correctly submitted that there are material differences between the facts of Fogg
as there reported, and those set out in the above quotation from Clarkin. This Court in Clarkin and Campbell
seems to have assumed that the defendant in Fogg had received the 1,000
units of LSD only after arriving in Jersey. But the Court’s statement of the
facts in Fogg at 1991 JLR p.35 shows that in fact Fogg brought a
quantity of cannabis into Jersey, and having arrived in Jersey opened the
cannabis blocks and found the LSD hidden within the cannabis.
17. This Court in Campbell then referred at
pages 142 to 144 to the increasing burden of drug imports, drug abuse and other
crimes committed in order to pay for drug abuse in Jersey, and the social harm
this causes. What was there said
remains entirely valid today. The
greater the quantity of illegal drugs are brought into Jersey and sold and used
here, the greater the harm done to the small community in Jersey. The policy of the Jersey courts must
remain to impose strong punishments to mark the particularly anti-social nature
of drug trafficking into and in Jersey.
18. In Campbell this Court proceeded to lay
down guidelines for sentencing in relation to Class A drugs at pages 144 -
146. We consider it convenient and
helpful to quote here the whole of this passage:
"Class A drugs
We begin by endorsing the
sentencing approach laid down by this court in Clarkin v. Att. Gen. The proper approach is that the
sentencing court should adopt a starting-point which is appropriate to the
gravity of the offence. Having
established the starting-point, the court should consider whether there are any
mitigating factors and should then make an appropriate allowance for them
before arriving at its sentence. A
substantial allowance may be expected where a defendant has identified his
supplier or otherwise provided information which is of significant assistance
to the authorities.
In the passage from the judgment in
Clarkin which we have cited above, this court laid down a band of
starting points between six and nine years’ imprisonment. A starting-point of nine years’
imprisonment was considered to be appropriate for an offender whose involvement
in drug dealing was akin to that in Fogg v. Att. Gen. Fogg had been arrested in possession of
1,000 units of LSD. He had arrived
in the Island only a short time before his arrest. Within a few hours he had received this
large quantity of LSD and had set about selling it. He was also sentenced at the same time
for other offences involving the possession and supply of cannabis. He was a mature man with one previous
conviction for a drugs offence. In
our judgment, the appropriate starting point for a case of drug trafficking of
that nature would now be one of 12 years’ imprisonment. If the involvement of a defendant in
drug trafficking is less than that of Fogg, the appropriate starting-point will
be lower. If the involvement of a
defendant in drug trafficking is greater than that of Fogg the appropriate
starting-point will clearly be higher.
Much will depend upon the amount and value of the drugs involved, the
nature and scale of the activity and, of course, any other factors showing the
degree to which the defendant was concerned in drug trafficking. We propose also to vary the lowest point
of the band established in Clarkin; we accordingly state that it is
seldom that the starting-point for any offence of trafficking in a Class A drug
on a commercial basis can be less than a term of seven years. We have employed the term
"trafficking" deliberately.
In the past, some distinctions may have been drawn between offences
involving the importation of Class A drugs and offences involving their supply
or their possession with intent to supply.
In our judgment, there is no justification for any such
distinction. The guidelines which
we have set out above apply to any offence involving the trafficking of Class A
drugs on a commercial basis. We
acknowledge that the maximum penalty for supplying or for possession with
intent to supply a Class A drug is life imprisonment, whereas the maximum
penalty for involvement in the importation of a Class A drug is only 14
years’ imprisonment. We were
told that that discrepancy resulted from a legislative oversight which would
shortly be rectified. In the
context of the offences embraced by these guidelines, however, the different
maximum penalties are not relevant.
We turn now, as requested by the
Attorney General, to deal with a number of subsidiary points. First, we are asked to consider the
extent to which an erroneous belief in the identity of a drug in the possession
of an offender can be a mitigating factor.
In R. v. Bilinski the English Court of
Appeal held that it was relevant to punishment and that "the man who
believes he is importing cannabis is indeed less culpable than he who knows it
to be heroin" (9 Cr. App. R. (S.) at 363). The extent to which the punishment
should be mitigated would, however, depend upon all the circumstances, amongst
them being the degree of care exercised by the defendant.
In the case of Campbell, one of the
present appellants, the Royal Court declined to follow Bilinski
and decided that in general an erroneous belief should not be held to be a
mitigating factor (1994 JLR N-12).
The Royal Court expressly stated however that it was not laying down a
rigid rule. It acknowledged that
there could be exceptional circumstances which would entitle it to consider the
effect of a person’s belief on the proper sentence.
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 blameworthiness 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.
Secondly, the Attorney General drew
our attention to cases in which the view had been expressed that a guilty plea
carried an entitlement to a discount of one-third. He submitted that this view was
incorrect and that the discount to be allowed for a guilty plea depended upon
the particular circumstances of the case.
For example, where a courier was found with the drugs concealed inside
him, he was really caught in flagrante delicto and had no option but to plead
guilty. We agree and we reaffirm
the statement made by this court in Carter v. Att. Gen. in the following
terms:
"The
Court now turns to such mitigation as there is. The applicant pleaded guilty to the
indictment and for this he is entitled to a substantial discount. In Clarkin and again in Wood
v. Att. Gen., C.A. February 15th, 1994, this court made a deduction of
one-third for the plea of guilty.
We accept that such a reduction is customary and in line with a
well-established principle.
Nevertheless we take the view that such a reduction is in no sense an
inflexible rule and the precise deduction in each case must depend upon the
circumstances in which the guilty plea came to be made. In some circumstances the evidence will
make a guilty plea all but inevitable, but in other cases that may not be
so."
This statement is, of course,
equally applicable to cases involving Class B drugs with which we will deal
below.
Thirdly, the Attorney General asked
us to consider whether the test laid down by the English Court of Appeal in R.
v. Aranguren for gauging the gravity of an offence was apt for adoption in
Jersey. In Aranguren the
court held that reference to the street value of the drug should be abandoned
in favour of a formula related to weight and purity. This case was considered by the Royal
Court in the case of Campbell (1994) JLR N-13. Crill, Bailiff, stated:
"It
has never been the practice of this court to have regard solely to one or the
other. This court has had regard to
both the weight and the street value; it has never been disjunctive. It has been conjunctive and the court
takes both into account. The court
cannot sentence purely on the market principle alone and it must be stressed,
as I said at the opening, that the effect on Jersey of importing even a small
amount is far greater in proportion than it would be in England."
This approach appears to us to be
entirely satisfactory having regard to the nature of drugs cases coming before
the courts in this jurisdiction.
Both the street value and the weight of the drugs are relevant factors
for the court to know in assessing the level of involvement of the defendant in
drug trafficking."
19. These are the guidelines relevant for the
purposes of the present cases. In
particular the Court of Appeal in Campbell was indicating that:
(1)
The
starting point for any offence of trafficking in Class A drugs on a commercial
basis could seldom be less than 7 years’ imprisonment.
(2)
In a case
such as Fogg involving 1,000 units of LSD the appropriate starting point
would be 12 years (and not the 9 years indicated in Fogg and Clarkin).
(3)
In cases
where the defendant is involved to a greater or lesser extent than in Fogg
the starting point will be appropriately higher or lower than 12 years. As this Court observed in Campbell
at the bottom of page 144, "Much will depend upon the amount and
value of the drugs involved, the nature and scale of the activity and, of
course, any other factors showing the degree to which the defendant was
concerned in drug trafficking".
(4)
In Jersey
both the weight of the drugs and their street value are factors to be taken
into account, having regard to (inter alia) the point that the effect on Jersey
of importing even a small amount is far greater in proportion than it would be
in England.
20. The Attorney General subjected the subsequent
application by the Courts of these guidelines to a number of criticisms. In doing so he indicated that he was not asking this
Court to replace such guidelines with new ones: rather he was seeking much
further clarification so as to assist the Crown and the Royal Court for the
future, and to avoid the inconsistencies of sentencing starting-points which
appeared plainly from the tables he supplied. We deal with his criticisms in turn.
21. He referred to the facts in Fogg, as set
out in the extracts from Campbell we have quoted, and submitted that
most of these facts, if relevant at all to sentencing, went to mitigation only
and not to the determination of a starting-point. This went hand in hand with his
submission that the weight or dosage of Class A drugs should be the only or
almost the only factor to be used in deciding on a starting-point. As will appear, this Court does not
consider that weight or dosage, important factor though that is, can be the
sole factor in relation to the starting point. Factors in Fogg such as the
defendant’s immediate sale of drugs after arrival in the island, showing
that the drugs had been brought to Jersey as part of a pre-arranged plan, and
the role of the defendant in the relevant drug trafficking, are likely to be
relevant when deciding where, in the band of starting points appropriate to the
amount of drugs trafficked in, the particular case should be placed.
22. Next the Attorney General submitted that the
role of the defendant in the relevant drug trafficking was either not a factor
at all, or a factor of small relevance, in deciding on the starting-point,
because every person at every level in the drugs chain, from the ultimate
organiser through the different levels of dealer to the couriers who regularly
carry drugs and finally to the once-off courier (sometimes described as a
"mule") whose sole involvement is a once-off carriage of a parcel
which they may not even know contains drugs, is, he submitted, responsible for
the introduction of the drugs into Jersey.
Without each link in the chain the drugs would not enter Jersey.
23. This proposition is not consistent with the
judgment in Campbell, and is not accepted by this Court. As this Court stated at pp.144-145 in Campbell:
“Much will depend upon the
amount and value of the drugs involved, the nature and scale of the activity
and, of course, any other factors showing the degree to which the defendant was
concerned in drug trafficking.”
What the Court in Campbell had in
mind here was drug trafficking on a commercial basis. In the judgment of this Court there is a
clear distinction to be drawn between the different levels of involvement in
the drugs trade. For example, to
sentence the simple "mule" and the ultimate drugs "baron"
identically would be both inappropriate, having regard to the degrees of harm
which those at each level inflict on society, and therefore the different
degrees of culpability, and plainly unfair to defendants at the lower levels of
involvement. The links in the chain
are not of equal strength or significance in the sentencing context. We therefore reject this submission.
24. The Attorney General submitted that every
defendant seeks to minimise their role and involvement. He pointed to the difficulties which the
Prosecution faces in challenging the defendant’s story in this
respect. We acknowledge that difficulty,
which is inherent particularly in cases in which the defendant pleads guilty
before trial. But there are some
remedies. If the defendant’s
story is not credible, the Royal Court can be asked to reject it as incredible. If on its face the story has some degree
of credibility, it may be possible to challenge the story by means of a Newton
hearing. In the judgment of this
Court the risk that defendants may succeed sometimes in overly minimising their
role and involvement is no justification for excluding this as a principal
factor, or in that respect departing quite radically from the Campbell
guidelines, which in our view remain appropriate and effective.
25. The maturity of the defendant, which was
mentioned by the Court in Campbell as part of its recitation of the
facts in Fogg, was not in our view intended to be identified as a factor
relevant to deciding on the starting point, and is not relevant in that
context. It may, however, go to
mitigation: youth may be a mitigating factor, whereas maturity may not be.
26. We turn next to consider the different ways in
which the Courts of Jersey should, in line with the Campbell guidelines,
assess the starting-point in drug trafficking cases.
27. The amount of drugs of Class A carried or sold
must be a major factor. That was
made clear in Campbell. In
the case of drugs such as heroin and cocaine the appropriate measure of the
amount is primarily by weight. We
do not consider it appropriate in the case of such drugs which are usually
carried and sold in the form of powder to measure by reference to dosages. Any given weight of heroin or cocaine
may, depending in part but not solely on its purity, be converted into
different numbers of dosages. For
the time being we take the view that the weight of heroin, cocaine and any
similar drugs should be used as the measure.
28. In Campbell the cases there being
considered were cases involving trafficking in heroin. But as the extracts quoted above from
the judgment show, the measure referred to, in connection with Fogg, was
the number of tablets of LSD, i.e. what we have described as dosages. In relation to drugs carried and sold in
tablet form, including LSD, Ecstasy and Amphetamines, the dosages rather than
the weight will be the appropriate measure. We will return later to consider cases
involving drugs in tablet form. For
the present we concentrate on heroin, cocaine and similar drugs for which
weight is the appropriate measure.
29. The Attorney General invited the Court to adopt
the approach of the English Courts as exemplified by the guideline case in
England and Wales of R. v. Aranguren et al (1994) 99 Cr. App. R.347 C of
A, Crim Div. In that case it was
decided that in future weight should be determined after converting to the
equivalent 100% purity weight of the drugs, a process which involves in each
case a mathematical conversion from the particular degree of purity to 100%.
This is of some importance on the mainland because of the larger quantities of
drugs involved, and the practice of "cutting" a consignment of drugs
so as to reduce the average purity.
However, there is no evidence of any material amount of "cutting"
of drugs illegally brought into Jersey.
Further, in the judgment of this Court, whether a consignment of heroin
or cocaine is at the average of between 40-50% purity, or at a much lower
degree of purity, or at a higher degree, is immaterial to the carrier of the
drugs, and largely immaterial to those who sell and buy the drugs in
Jersey. To know the degree of
purity requires the carrying out of a scientific analysis, involving both time
and expense. Such an analysis seems at present
unlikely to be carried out by those who deal in this illegal trade in
Jersey. In the judgment of this
Court
(1)
the Courts
of Jersey should not at present adopt the Aranguren approach; and
(2)
the degree
of purity of a consignment of illegal drugs should generally not be taken into
account.
30. However, if the degree of purity is very high,
at about 75% or greater, then it may be appropriate in particular cases to
increase the starting-point to take account of this, because, first, a
consignment of such high purity is much more likely to be "cut", and
secondly, if it is not cut, it will do greater harm to those who consume the
drugs. This approach was adopted by
the Court of Appeal in Kenward and we consider
that this is the right approach.
31. On the other hand, we do not consider that
there should be a reduction in the starting-point where the degree of purity is
below the average. Usually neither
the carrier (as we have already noted) nor indeed the dealer have any regard to
the degree of purity, and it would not be appropriate to make a reduction in
such circumstances.
32. In Campbell the Court of Appeal approved
the practice of having regard to both weight and street value of a consignment
of Class A drugs. The Attorney
General submitted that it is inappropriate to have any regard to street value,
not least because that value may fluctuate over a period according to the ratio
between supply and demand. In
theory the more successful the Customs and Police in preventing the import of
drugs into Jersey the higher the street value, and the less successful they are
(and so the greater the supply of illegal drugs on the streets of Jersey) the
lower the street value. So, the
Attorney General submitted, the starting-point if fixed by reference to street
values could go down at the very time when the social harm was greatest. There is force in this submission. But as Counsel for the appellants said,
there is little evidence of any such fluctuation in Jersey (as opposed to the
mainland), except perhaps over an extended period in respect of Ecstasy
tablets. We agree with the Attorney
General, to this extent, that street value is a factor of much less importance
than the amount of drugs and the role and involvement of the defendant in drugs
trafficking, which must be the principal factors. Nevertheless, street values should
always be in evidence so that they can be taken into account where they are
truly relevant. One example of this
is in the case of Mr Rimmer, where it is clearly relevant to compare not only
the amount of cocaine with the amount of heroin carried by Mr Holding, but also
the street value of that cocaine against the street value of the heroin carried
by Holding which was materially more valuable. Street value has a part to play in
comparing the appropriate starting-points for Rimmer and Holding respectively.
33. The Attorney General asked this Court to assist
the Crown and the Royal Court by expanding the Campbell guidelines so as
to give more detailed starting-points by reference only to weight for drugs
carried and sold in powder form such as heroin and cocaine. We have already indicated that weight
though a principal factor cannot be the sole factor. Nevertheless we agree that further
guidance is needed for such cases.
We consider that the appropriate course is to give bands of starting
points by reference to the weight of drugs, adjustment being made within these
bands to take account of the role and involvement of the defendant, and of
other less significant factors including street value.
34. These bands, which will apply only to heroin,
cocaine and other Class A drugs carried or sold in powder form, are as follows:
|
Weight in Grams
|
Starting-point
in Years of Imprisonment
|
|
1 - 20
|
7 – 9
|
|
20 - 50
|
8 – 10
|
|
50 - 100
|
9 – 11
|
|
100 - 250
|
10 – 13
|
|
250 - 400
|
11 – 14
|
|
400 and over
|
14 upwards
|
35. We emphasise that these bands represent only
guidelines, and are not to be treated as if embodied in a statute. The position of a particular defendant
on a particular count within one of the bands is to be determined by reference
to the weight of drugs and their role and involvement as principal factors,
together with other lesser but relevant factors, as indicated above. The margins of these bands are also not
to be treated as set in stone.
There may be exceptional cases in which on a particular count the
starting-point may be above or below the band otherwise appropriate. However, we reiterate what this Court
said in Campbell that it will be seldom that the starting-point for any
amount of drugs will be below 7 years.
In this connection we refer to the recent case of Morgan and Schlandt
v. Attorney General (24th April 2001) Jersey Unreported; [2001/88] in
which, though Morgan was trafficking on a commercial basis, this Court took a
starting-point of only 6 years. We
consider that the case of Morgan is to be regarded as an exceptional
case, and in general the Campbell guideline of a minimum starting-point
of 7 years should be adhered to by the Courts of Jersey.
36. The Attorney General asked that similar
guidance be given, in line with the Campbell guidelines, in respect of
Class A drugs carried and sold in tablet form, including Ecstasy, LSD and
Amphetamines. This Court is not in
a position on this appeal to respond to this request. This Court does not have before it
evidence of the degree of social and medical harm resulting from abuse of such
drugs, evidence of any comparison of relative potency of such drugs as between
themselves or as compared with e.g. heroin or cocaine, or evidence which would
enable the Court to formulate bands of starting-points on lines similar to
those set out above. Further, this
Court has not been supplied with some of the relevant legal authorities,
including the guideline cases in England and Wales, and the Court does not have
detailed submissions from the Appellants’ Counsel in this regard
(rightly, because the appeals involve only heroin and cocaine). Further assistance from the Court will
have to await suitable appeals in cases involving drugs such as Ecstasy.
37. In the above paragraphs the Court has not
referred in detail to the helpful submissions of Counsel for the appellants,
though all the points they made have been taken fully into account, and are
reflected, for example, in the Court not accepting those aspects of the
Attorney General’s submissions which the Court regards as departing from
the fundamentals of the Campbell guidelines. Therefore the Court does not extend this
already long judgment by further exposition of their submissions.
38. The Court now returns to the three appeals in
the light of the guidance already given.
39. Rimmer. In the view of this Court, the sentence
passed by the Royal Court on Rimmer cannot stand. Rimmer was charged only in relation to
trafficking in the cocaine he carried: he was not charged as a joint venturer with Holding, or in relation to the heroin which
Holding carried. It was common
ground between the Crown and the defence (and twice reiterated by the Crown
during the course of the hearing before the Royal Court) that Rimmer was to be
sentenced only in relation to the trafficking in cocaine with which he was
charged. Though in some
circumstances (which are likely to be rather rare) it may be permissible for
the Royal Court to depart from the basis of sentencing which is common ground
between the Crown and the defence, it is not permissible for the Royal Court to
sentence a defendant on a basis outside the count charged, which has been the
subject of a plea or finding of guilt, as has happened here.
40. Rimmer was a carrier of the cocaine of which
the weight was 156.97 grams, with a street value of about £12,500. Though the relevant band set out above
would indicate a starting-point of between 10 and 13 years, this Court
considers that it would be unfair for Rimmer to be sentenced on the basis of
the bands now set out for the first time, having regard to the history of the
case set out above, and that the fair course is to assess the starting-point as
at the time when the case came before the Royal Court. At that time the Crown correctly
assessed the starting point at 9 years, and this Court adopts that period.
41. Rimmer does not have a great deal of
mitigation, beyond his early but inevitable plea and his limited cooperation
with the authorities. His record is
not a good one, and he seems to have learned nothing from his recent sentence
for drug trafficking in Spain.
Nevertheless this Court considers that 2 years (out of 9 years) should
be allowed for the mitigating circumstances. Therefore this appeal will be allowed
and a sentence of 7 years will be imposed.
42. Lusk. He appeals only against the concurrent
sentences of 8 years’ imprisonment on Counts 1 and 3 of possession of
heroin with intent to supply. The
Royal Court adopted a starting-point of 10 years. The total quantity of heroin in his
possession was 136.9 grams with a street value of between £41,070 and
£61,605. He was engaged as a
tester of the quality of the heroin, performing a vital service as between the
dealers in England and the dealers in Jersey in resolving a dispute which had
arisen as to the quality of the supply.
While we entirely accept the explanation of his role which Mr Lusk gave,
we consider that such role and involvement was at a higher level in the drugs
trade than that of courier. Having
regard to these factors, and to the bands set out above, this Court can see no
basis whatever for reducing the starting point below the 10 years adopted by
the Crown and the Royal Court, which was at the time a starting-point entirely
in line with the Campbell guidelines.
43. In his favour we take as mitigating factors his
age, his lack of a relevant record of drug convictions (despite his bad record
of conviction of other offences), and his early guilty plea to all counts. Miss Juste fully argued a number of points
on mitigation to which we refer in turn:
(1)
That he
was given insufficient credit for an early guilty plea. We consider this submission to be
unfounded as regards the Royal Court, but in any event this Court has given
full credit for such plea.
(2)
That
insufficient discount was given for his role in the offences. This submission is based on a
misapprehension as to the seriousness of his involvement. As already stated, his role as a tester
was clearly at a higher level of involvement than that of a mere courier.
(3)
That his
explanation was treated with undue scepticism. This submission appears from the
judgment to be unfounded. But in
any event this Court entirely accepts his explanation.
(4)
That he
was wrongly regarded as going to be in possession for 2 - 3 days. It is clear that he would have had the
drugs during at least 2 days.
44. We have anxiously considered all Mr
Lusk’s mitigation and all that has been said on his behalf by Miss Juste
with considerable force and care.
Despite the cogency of her submissions, this Court is satisfied that 2
years was the correct discount for the mitigation available to Lusk, and
accordingly his appeal is dismissed.
45. Bade. Mr Bade was a courier carrying 86.43
grams of heroin with a street value between about £26,000 and
£39,000. By reference to the
bands set out above a starting-point of 10 years was appropriate. The Royal Court took a starting-point of
11 years. This was in any event too
long, and there was an inexplicable inconsistency between the starting-point
for him and the starting point of 10 years adopted by the Royal Court on the
same day in the very similar case of a defendant named Batchelor. In our judgment 10 years is the correct
starting-point.
46. As regards mitigation, he is 25 years old,
pleaded guilty early, but has a poor record of convictions. Miss Fitz accepted that a 2 year
discount for mitigation, as the Royal Court held, is appropriate. This Court agrees, and accordingly
allows the appeal and substitutes a sentence of 8 years’ imprisonment.
47. Article 35(4)(b) of the Court of Appeal
(Jersey) Law 1961. In the case of each defendant the Court
orders that no part of the time in custody pending appeal is to be disallowed
in computing the time served in prison.
Further Matters
48. The Court now turns to some further matters
which need to be set out in this judgment for future consideration by the Royal
Court and the legal profession in Jersey.
49. The imminent coming into force of the Human
Rights (Jersey) Law 2000 leads us to remind the Royal Court that in all
sentencing the reasoning of the Royal Court needs to be set out fully. The defendant is entitled to full
reasons, and full reasons are needed by the Court of Appeal when considering
sentencing appeals and applications for leave.
50. The Consolidated Practice Direction of the
Court of Appeal is set out at 2000 JLR Notes pages 32 et seq. Copies have been supplied to every
practising advocate. In none of the
criminal appeals heard by the Court of Appeal this week does it appear that any
attention has been paid to the requirements of the Direction as regards the
preparation of files of documents and authorities set out in paragraphs 3.3 and
3.4 of the Direction, even by the Law Officers Department. In some instances essential documents
before the Royal Court were omitted.
In every case authorities, whether from Jersey or from England and
Wales, were jumbled together and then mixed with the court documents in the
instant case. Relevant authorities,
though referred to in the outline contentions, were omitted. There was duplication of authorities and
documents. It seems not to be
appreciated by the profession that;
(1)
these were
unnecessary breaches of the Court’s Direction;
(2)
they made
the Court engage in the time-consuming task, which should have been
unnecessary, of disentangling authorities and documents, and making certain
that missing documents and authorities were supplied.
51. The Court of Appeal trusts that this is the
last occasion on which it will have accepted files not assembled in accordance
with the Direction, whether in criminal or civil appeals. In future if in any appeal or
application the files are not assembled in accordance with the Direction the
appeal may be stood out of the list, and the advocate concerned may be ordered
personally to pay the costs thrown away, as indicated in paragraph 2.6 of the Direction.
Authorities
Campbell & Ors-v-AG (1995) JLR
136 CofA.
Wood-v-AG (15th February,
1994) Jersey Unreported CofA.
Kenward-v-AG (14th July, 2000) Jersey
Unreported; [2000/137]
Pagett-v-AG (1984) JJ 57 CofA.
Fogg-v-AG (1991) JLR 31 CofA.
Clarkin-v-AG (1991) JLR 213 CofA.
R-v-Bilinski
(1987) 86 Cr.App.R 146; 9 Cr.App.
R (S) 360; [1987] Crim LR 782.
AG-v-Campbell (1994) JLR N.12.
Carter-v-AG (28th
September, 1994) Jersey Unreported CofA.
R-v-Aranguren (1994) 99 Cr.App. R. 347; 16 Cr.App. R. (S)
211.
AG-v-Schorah & Wright (22nd February 1999)
Jersey Unreported; [1999/33].
Bruton-v-AG (14th July 2000) Jersey
Unreported CofA; [2000/136].
Morgan
& Schlandt-v-AG (24th April 2001)
Jersey Unreported CofA; [2001/88]
AG-v-Batchelor
(3rd May 2001) Jersey Unreported; [2001/96]
AG-v-Chadwick (30th
October 1995) Jersey Unreported.
AG-v-Kane, Moyse & Speirs (30th
May 2001) Jersey Unreported.