Jersey Unreported Judgments

[2003]JCA157

COURT OF APPEAL

 

                                                            10^th September, 2003.

 

 

John Francis McCARTHY

-v-

The Attorney General

 

Application for leave to appeal against a total sentence of 9 years' imprisonment, passed on 30^th June, 2003, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 4th April, 2003, on a guilty plea to:

2 counts of:

being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise Law 1999: count 1:  heroin, on which count a sentence of 9 years' imprisonment was passed; count 2: MDMA, on which count a sentence of 1 month's imprisonment, concurrent, was passed

 

The Application for leave to appeal placed directly before the plenary Court without first being submitted to a Single Judge for consideration/determination.

 

Advocate Mrs. S.A. Pearmain for the Appellant;

C.M.M. Yates, Esq., Crown Advocate.

 

JUDGMENT

 

 

SUMPTION JA:

1.        John Francis McCarthy is a 47 year old man who has described himself in a letter to the Court as a "prolific criminal for over 30 years".  He has a record which has put him behind bars for half of that time.  On 1 February 2003, he travelled by air from Gatwick to Jersey under an assumed name.  On landing at Jersey, he was found to be carrying heroin wrapped in a condom in his wash bag and seven packages of heroin concealed internally.  The heroin had a wholesale value of between £15,811 and £21,086 and a street value between £31,622 and £47,401.  He also had two ecstasy tablets in his possession.  On 4 April 2003, McCarthy pleaded guilty to two counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs, and was remanded to the Superior Number for sentence.  On 30 June 2003, he was sentenced on the first count, which related to the heroin, to nine years' imprisonment.  On the second, which related to the ecstasy tablets, he was sentenced to one month's imprisonment, concurrent.  This is the judgment of the Court on his appeal against that sentence.

2.        The Deputy Bailiff directed himself in accordance with the guidelines given by the Court in Rimmer, Lusk and Bade (2001) JLR 373, and took as his starting point a sentence of ten years' imprisonment.  He then applied a modest discount of one year for the plea of guilty, and for all other mitigating factors.  Bearing in mind that McCarthy was caught red-handed, there was no realistic alternative to the plea of guilty, and it is clear that the Deputy Bailiff did not think that there was any significant mitigation apart from the plea.  McCarthy said that he had borrowed money to start a business venture from a group of violent criminals, who beat him up when he could not pay and offered this work as another way of discharging the debt.  They also threatened his family.  The Deputy Bailiff rejected, as this Court has in the past rejected, the submission that that could amount to mitigation simply because the debt was not incurred in order to pay for drugs.  He also pointed out that McCarthy had a bad criminal record including two convictions for drug trafficking offences.

3.        In our judgment it is impossible to fault the Deputy Bailiff's approach, and but for one factor we would have dismissed the appeal.  The factor that has swayed us is the production of four references which were not shown to the Deputy Bailiff because as a result of an oversight Counsel for McCarthy did not appreciate at the time of the hearing in the Royal Court that they had arrived in her office.  These references come from McCarthy's sister, a long-standing girl-friend, and two others for whom he has worked.  The first two have written unusually detailed and informative letters about his personality, his past and his problems.  Character references are not always of assistance to the Court, but sometimes they do reveal another side of a man's character, as these ones do.  But the main conclusion which we would draw from them is that McCarthy has solid support from family and friends in spite of the way that he has wasted his life, and that he has much to contribute to them in return.  He is not beyond redemption, as the bare facts of his record might suggest.  This cannot warrant a large reduction in the sentence due for what was on any view a very serious offence.  But we think that it is entitled to some weight and would have been a factor in the Deputy Bailiff's decision if he had known about it.

4.        In all the circumstances we propose to reduce the sentence to eight years.  The appeal will be allowed to that extent.

Authorities.

Stammers -v- AG [2003]JCA008

Rimmer & Others -v- AG [2001]JLR373

Smaller -v- AG (21 February 2001) Jersey Unreported; [2001/43]

Attorney General -v- Bruton & McGrath (27 April 2000) Jersey Unreported; [2000/73]

Foster -v- Attorney General [2003]JCA080