1998/8 - Martin v AG [1998] UR 8 (14 January 1998)

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Application for leave to appeal against a sentence of 3½ years youth detention, passed on 1 September, 1997, (and amended on 5 September, 1997), by the Superior Number of the Royal Court, to which the appellant was remanded on 15 August 1997, by the Inferior Number, following a guilty plea to:

One count of possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

(On 23 August 1996, the accused pleaded guilty before the Inferior Number of the Royal Court to one count of receiving, hiding, or withholding stolen goods (count 1b of the first indictment laid against him and a co-accused, Howard Patrick Selby); and to one count of assault (count 1 of the second indictment), and was remanded in custody.

On 19 December 1996 the accused was sentenced on count 1b of the first indictment to 6 months youth detention. Count 1 of the second indictment was amended by the Crown to a count of grave and criminal assault, to which the accused pleaded not guilty, but guilty to the original count of assault, which plea the Crown accepted, and was sentenced to three months’ youth detention, consecutive.

On 28 February 1997, the accused and one other, Mark Ferguson, pleaded not guilty to 1 count of grave and criminal assault on an inmate at Her Majestys Prison at La Moye; the co-accused was remanded in custody, the accused was granted bail, pending trial before an criminal assize to start on 12 May 1997.

On 8 May 1997, the accused pleaded guilty to the count under appeal, and was remanded in custody to receive sentence after the conclusion of the criminal assize.

On 15 August 1997, the Crown reduced the charge of grave and criminal assault against Ferguson to one of assault. Ferguson pleaded guilty and was remanded in custody to receive sentence before the Inferior Number on 29 August 1997. The Crown withdrew the prosecution on the same charge against the accused, who was remanded in custody to receive sentence on the count under appeal].

Leave to appeal was refused by the Bailiff on 6 October 1997; the application was renewed to the plenary Court, under Article 39 of the Court of Appeal (Jersey) Law, 1961, on 9 October 1997.

THE PRESIDENT: At about 9 o’clock on the evening of 28 February 1997 this applicant, then aged 20, and another man named Stephen Hendry, were stopped by two police officers in plain clothes near the JMT bus depôt in St. Helier. The purpose of the officers was to conduct a routine stop check. Hendry proved to have nothing on him, but efforts to search Martin resulted in some resistance and he and one of the officers ended up on the ground. Martin tried to throw away a plastic bank bag which was recovered and it was found to contain 22 tablets. These tablets were found, on analysis, to contain an average content of 113 ml. of Ecstasy with a current street price locally of about £20 per tablet, that is to say, with a total street price of approximately £440. At the time of his arrest the applicant said nothing. A total of £200 in cash and a wage slip was found in two separate pockets of his jeans.

The following day he was interviewed under caution and he made no reply to all the questions asked. That same day he was charged with possession with intent to supply and also with simple possession of the Ecstasy and on 3 March appeared before the Magistrates’ Court where he pleaded guilty.

For the sake of completeness it is to be noted that earlier on 28 February - the day of his arrest - the applicant and another man named Mark Ferguson had pleaded not guilty before the Royal Court to an indictment alleging assault and they were both remanded for trial at a later date, Martin on bail. Thus on 8 May, having pleaded guilty to the indictment, the subject of this appeal, Martin was remanded in custody for sentence on a date to be fixed pending the outcome of his trial with Ferguson.

On 15 August, that case against him was withdrawn and he was remanded in custody to 1 September for sentence by the Superior Number for this matter. On that day, he was sentenced to 3½ years imprisonment, a sentence which was varied on 5 September to 3½ years youth detention because on 8 May, the date of his conviction, the applicant had been aged 20.

It now transpires that this sentence was in fact imposed by the Inferior Number in the absence of the applicant and without regard to the provisions of Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law, 1994. This Court is invited to consider a further ground of appeal, namely that the sentence was invalid. We are, therefore, asked to deal with the application on the grounds that (1) the sentence was invalid and (2) that it was excessive. In the event of these applications being granted we are invited to substitute such sentence as is appropriate and following the provisions of Article 4.

When passing sentence the Deputy Bailiff referred to the policy of the Court towards the offence of drug trafficking and to the judgment of this Court in Campbell, Molloy and MacKenzie -v- AG (1995) JLR 136 CofA when the Court said:

"That policy is that offenders will receive condign punishment to mark the peculiarly heinous and antisocial nature of the crime of drug trafficking."

"We intend to be guided by the Court of Appeal and to take six years as the starting point in this case. There has been no co-operation with the police but his youth must play a part in our consideration. For the guilty plea we cannot allow a full one-third discount but the small volume of drugs and the excellent reference allows us to take a more individualised approach than we might otherwise have done."

On 6 October 1997 leave to appeal against his sentence was refused by the Bailiff and the application is now renewed before this Court.

It is submitted that the sentence was manifestly excessive and/or wrong in principle. We have been invited to interpret the judgment in Campbell, Molloy and MacKenzie in the context of discount for a plea of guilty in the light of the Deputy Bailiff’s words in passing sentence and before he stated that the Court could not allow a full one-third discount. Earlier in the judgment he had said:

"Martin has pleaded guilty and had he not there might have been problems proving trafficking on the facts as they were set out to us."

So this is not a case of a person caught in flagrante delicto for a case of possession with intent to supply as distinct from simple possession. It is a case otherwise dependent on the quantity found being judged a commercial amount and, it is urged upon us, a guilty plea was by no means inevitable. The sum of £200 found on the applicant was said by him to have been his wages and it appears there was no evidence before the Court to contradict this and no application for forfeiture was made.

We take the opportunity to underline the view previously expressed that a reduction of one-third in a sentence for a plea of guilty 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. However, we consider that there is force in the argument advanced here that the plea of guilty was not inevitable, particularly after the Deputy Bailiff had spoken of "the small volume of drugs involved."

We have had regard to a number of authorities including the case of AG -v- Postill (2 October 1995) Jersey Unreported where the accused, who was aged 19, was found in possession of 18 tablets of Ecstasy when arrested for shoplifting. He admitted at once that he would have sold a few if he needed extra cash. The potential value was similar to that in the present application. He pleaded guilty to possession with intent to supply and was sentenced to 30 months youth detention. He was sentenced as a first offender. In passing sentence in that case the Bailiff said:

"In our judgment this was at the lowest end of the scale of drug trafficking. There was an intent to supply but it was an intention to supply in our view only a very small number of tablets probably less than ten. We are satisfied that this defendant’s involvement in trafficking was peripheral."

The Bailiff further said that the Court would take a starting point of six years youth detention and would make an allowance of two years for the guilty plea, which as he said "is probably generous bearing in mind the circumstances." The Court also took into account the defendants age, previous record and family support and made a further allowance of 18 months in that respect.

In the present case the applicant was aged 20 and has a criminal record which includes a conviction for possessing cannabis in 1994. He was apparently intending to sell about 20 tablets. At the same time he also had a supportive family and the Court had two references, one from the Roman Catholic Chaplain at La Moye Prison.The Court took rightly in our view a starting point of six years. We have given very careful consideration to the circumstances of this case. Without seeking to lay down any new or revised principles, but judging the case solely on its merits, we consider that this applicant should have been granted a discount in the region of one-third for pleading guilty to the offence which involved an intent to supply as distinct from simple possession. This is entirely on the basis of the facts already referred to and acknowledged by the Deputy Bailiff when passing sentence. However, we do not consider that the remaining mitigation deserves a further reduction of more than one year. In our judgment the right course here is to allow this application, or applications; to treat the hearing of the applications as the hearing of the appeal and to take the exceptional course of reducing the sentence from 3½ years to 3 years youth detention, giving a full allowance of two years for the guilty plea. We emphasise that this decision does not involve any fresh approach to the subject of discount when sentencing after a plea of guilty but is based solely on the facts of the instant case. Further, it should be emphasised that we do not accept the submission made to us on behalf of the application that the principles and guidelines laid down in Campbell were not intended to apply in cases such as the one before this Court today.

In our judgment there is no other method, that is to say other than a sentence of youth detention, of dealing with you which is appropriate, the reason being that the offence is so serious that a non-custodial sentence cannot be justified and I have to explain that to you here and now and to explain to you also that on your release you may be subject to a period of supervision in accordance with Article 10 of this Law.

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Jersey Unreported Judgments