Jersey Unreported Judgments

 [2003]JCA080

COURT OF APPEAL

15^th May, 2003.

 

 

Reginald Bruce FOSTER

-v-

The Attorney General

 

Appeal against a sentence of 4½ years' imprisonment, passed on 13th February, 2003, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 10th January, 2003, on 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 61 of the Customs and Excise (Jersey) Law 1999: Count 1: cannabis.

Leave to appeal was granted by the Deputy Bailiff 12th March, 2003.

 

 

Advocate R. Tremoceiro for the Appellant;

Mrs. S. Sharpe, Crown Advocate.

 

 

 

JUDGMENT

 

 

nutting ja:

1.        On 10 January 2003 the Appellant pleaded guilty before the Inferior Number of the Royal Court to an indictment containing a single count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis contrary to Article 61 of the Customs and Excise (Jersey) Law 1999.

2.        On 13 February 2003 the Appellant appeared for sentence before Mr Commissioner Hamon and Jurats in the Superior Number of the Royal Court.  He was ordered to serve a period of 4½ years' imprisonment.  An order of confiscation was also made by the Court pursuant to Article 6 of the Drug Trafficking Offences (Jersey) Law 1988. 

3.        Later he applied for leave to appeal against the sentence of imprisonment on the grounds that it was manifestly excessive and/or wrong in principle; and on 12 March 2003 he was granted leave to appeal by the Deputy Bailiff.

4.        The facts of the case were as follows.  On 19 November 2002 the Appellant, who works for the Otis Elevator Company, arrived in Jersey on the ferry from Portsmouth.  He was driving a Citroen van which was leased to his employers.  When questioned as to the purpose of his visit he claimed he had come to St Helier in connection with his work and produced a job sheet listing various companies he intended to visit in Jersey.

5.        A search of his vehicle revealed a taped package, later analysed as cannabis, in the rear passenger side panel of the vehicle.  The Appellant volunteered that a total of 6 packages were concealed in it.  In fact only 4 more packages were recovered, being found in another panel also containing the tool kit.

6.        The Appellant was interviewed.  He claimed he had been approached in a public house in England by 2 men whom he identified as Dave and Jimmy and who, he said, had enquired of him whether he ever visited Jersey in connection with his work.

7.        Subsequently one of them offered him £500 which he refused, later increased to £1,000 which he accepted, to act as a courier of cannabis to the Bailiwick.  He disclosed to the interviewing officers how, having received the packages, and wearing gloves to avoid the risk of finger printing, he had concealed them in the Citroen.  He explained, "It wasn't the pressure or anything.  They made it sound so easy."

8.        The total weight of the cannabis was 11.8 kilograms having a value assessed to be between £48,000 and £69,000.

9.        The Appellant is 53 years of age having convictions including one for possession of drugs, but he has remained out of trouble for the past 30 years.  Moreover none of these convictions resulted in punishments more severe than a suspended sentence of imprisonment and most were dealt with by way of financial penalty.  The Royal Court was content to treat the Appellant to all intents and purposes as a man of good character.  We agree with that approach. 

10.      Having regard to the guideline cases of Campbell &n Ors v AG (1995) JLR 136 CA and Rimmer, Lusk and Bade v AG [2001] JLR 373, the Crown moved for a starting point for sentence of 7 years' imprisonment taking into account the recommended bracket of 6 to 10 years for amounts of cannabis between 10 and 30 kilograms.

11.      It was clear to the Royal Court that the circumstances of the offence contained the following aggravating features: the substantial quantity of drugs, the apparent motive of financial gain, the breach of trust in the use of an employer's vehicle, and the ingenious but fabricated excuse of legitimate business as the reason for the visit.

12.      The Crown suggested to that Court that it would be wrong to give the Appellant a full reduction of 1/3^rd for his guilty plea because of the overwhelming nature of the prosecution evidence. 

13.      The mitigation urged on the Court included the Appellant's plea of guilty, his co-operation with Customs and willingness to give to the officers the names of the suppliers, the fact that he had been out of trouble with police for 30 years, and the voluntary work which he had undertaken for his local community.

14.      It is clear from the sentencing remarks that the Royal Court took into account all the factors and, in the event, adopted the Crown's conclusions that the appropriate sentence in this case was one of 4½ years' imprisonment.

15.      As to the starting point, Advocate Tremoceiro has submitted to us that 7 years was too high.  He points to the fact that the amount of cannabis was only just within the bracket of 10-30 kilograms.  He submits that the nature of the importation was at the lower end of the scale of criminal culpability and that the Appellant was a mere mule. 

16.      Mrs Sharpe for the Crown suggested, on the contrary, that the importation was planned and undertaken with a determination to throw any cursory examination by Customs officers off the scent.  She pointed to the fact that the Appellant used his company car not the Mercedes which he owned and drove for private purposes; and that he took the trouble to fabricate and reduce to writing a list of companies which he intended to visit in furtherance of his pretence that he was in Jersey on business. 

17.      Mr Tremoceiro further asserts that the Royal Court was wrong to accede to the Crown's argument that the Appellant should not be entitled to a full 1/3^rd discount.  He says that a plea of guilty was not inevitable and that, unlike a person who has drugs concealed on his person, the Appellant could have claimed plausibly that he had no knowledge of the drugs concealed within the car. 

18.      Against that it must be acknowledged that the Appellant admitted in interview that no one had access to the car apart from himself and that he retained the use of the vehicle at all times including weekends.  Although experience shows that offenders demonstrate a remarkable fertility for justifying pleas of not guilty in cases where the evidence is strong if not overwhelming, the circumstances of the discovery of this attempted importation of cannabis and the detail of what the Appellant admitted in interview, rendered it impossible in our view, for all practical purposes, for him to enter any plea except that of guilty.

19.      As to the Appellant's frankness in interview, Mr Tremoceiro suggests that the Appellant was given insufficient credit for the assistance which he gave to Customs.

20.      It may be that the Appellant did tell the Customs officers all that he knew about the two suppliers, notwithstanding the fact that he could not account for the circumstances in which the two men knew details of his mobile telephone number and were familiar with his address.  Moreover although he gave physical descriptions of the men, he could give no further particulars of them beyond their first names and the surmise that they originated from the East End of London.  Whether complete or not his information, as Mrs Sharpe pointed out, was of very limited value to the Customs officers.

21.      As to general mitigation it was suggested that the way in which the Appellant has managed to put his early rebellious and irresponsible behaviour behind him is much to his credit.  Mr Tremoceiro submitted that the Royal Court did not have sufficient regard to the fact of the Appellant's employment for over 18 years with the Otis Elevator Company and to the amount of time and energy he has devoted to the betterment of his local community.

22.      It is indeed difficult to comprehend why a man earning nearly £21,000 per annum basic, with no debts apart from a mortgage and no particular financial worries, should have committed such an offence.  He has the benefit of a wife to whom he has been married for nearly 25 years and three adult children.  We have seen documentation which makes it clear that he was regarded as a reliable, hardworking and competent employee.  He is also described as a pillar of his community, a position he has achieved by diligent and laudable contributions to local groups and organisations.

23.      Testimonials speak of his dedication, commitment and professionalism in his work for the Ferrier Youth Club in Greenwich and for the Bromley and Downham Boys' Club.  It is clear from these references that the Appellant has spent a significant proportion of his spare time in helping young people on the margins of society in Inner London.

24.      Since it is apparent that the Appellant does not himself abuse drugs, his friends and associates state that they cannot comprehend why he should have risked so much, and put in jeopardy his achievements and his reputation, for a sum of money which in financial terms represented to him something in excess of two weeks' wages.  We echo the conclusions of the Probation Report that it is sad indeed to see a man such as the Appellant before a court on such a charge.

25.      In his sentencing remarks the Commissioner said that the Jurats had found this a difficult case, and were by no means unanimous in adopting the conclusions moved by the Crown.  It is apparent moreover from the Judge's Report that the disagreement related to the starting point and whether one of less than 7 years' imprisonment was more appropriate than that suggested by the Crown.

26.      We have some sympathy for this approach.  It must be borne in mind that the quantity of drugs in this case was very near to the minimum level defined by the bracket.  Furthermore a review of the circumstances of the importation does not persuade us that there was any very real sophistication in the method chosen.  Apart from the fact of concealment of the drug, a necessary feature of every importation, both the nature of the wrapping and the location of the hiding place enabled the sniffer dog to detect the drug almost immediately after the vehicle had been stopped.  Once the cannabis had been discovered, the pretended reason for the visit and the job sheet in support availed the Appellant nothing. 

27.      Having regard to these matters we take the view that the correct starting point in this case was 6½ years' imprisonment. 

28.      In regard to general mitigation we have enjoyed an advantage not available to the Royal Court.  In furtherance of the quest to enable the Appellant's family and friends, and indeed the Court, to understand why a man such as the Appellant should have committed this offence, Mr Tremoceiro, albeit belatedly, sought the opinion of a Consultant Psychologist, Mr Ian Berry, who visited the Appellant at Her Majesty's Prison La Moye on 6 May 2003.

29.      Mr Berry has submitted a report to the Court which, coupled with supporting evidence in a letter from the Appellant's wife, throws some light on the circumstances of the commission of this offence.  Certainly this Court is both better informed and wiser in answering the questions raised by the Appellant's family and friends and their incredulity at the events of 19 November 2002.  We have no doubt the circumstances of its commission are far more complicated than the Royal Court were permitted to understand.  Aspects of the Appellant's life, which Mr Berry discusses in detail in his report, make it clear that the notion that the Appellant acted out of greed, the only motive available to the Royal Court to consider, was either wrong or a significant over-simplification of the Appellant's state of mind at the relevant time.

30.      We have considered carefully Mr Berry's report and have concluded that we ought further to reduce the sentence passed on this Appellant to allow for aspects of general mitigation which were not before the Royal Court; and we have decided that a further reduction of 6 months adequately reflects that mitigation.

31.      In the event, therefore, we reduce the total sentence passed on this Appellant by 12 months, making a total period of imprisonment of 3½ years.  To that extent this appeal is allowed.

32.      Before leaving this case we would like to refer to one matter which arose during the course of submissions.  Since it is the custom in this jurisdiction for the Crown to move not only for a starting point for sentence but also for conclusions as to what that sentence should be, it is important for defence advocates to ensure that the Crown receives copies of testimonials, references and any other material which it is proposed to submit to the Court in mitigation of sentence so that the Crown can come to an informed conclusion in advance of the trial.

33.      This is an important element in the sentencing procedure in the Royal Court because the Court, including of course the Jurats who play such a significant part in that procedure in this jurisdiction, should be informed whether the Crown have moved for conclusions in the light of all the material before the Court or whether on the contrary there are aspects of the mitigation of which the Crown was ignorant at the time when the conclusions were discussed with the Attorney General and completed.

Authorities

Campbell v AG (1995) JLR 136 CA.

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

AG -v- Kenward (6^th March 2000) Jersey Unreported; [2000/42].

AG -v- Trinidade (20^th July 2000) Jersey Unreported; [2000/141].

AG -v- Le Lai (22^nd February 2001) Jersey Unreported; [2001/48].