Jersey Unreported Judgments

[2011]JCA105

COURT OF APPEAL

27^th May 2011

Before     :

J. W. McNeill, Q.C., President; N. Pleming, Q.C., and; Sir Hugh Bennett.

Simonette Harriett Barrett (nee King)

-v-

The Attorney General

Application for an extension of time within which to appeal, and for leave to appeal against the sentence imposed by the Superior Number of the Royal Court on 29^th September, 2010 on the charge of:

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1).

Advocate M. L. Preston for the Applicant.

Crown Advocate J.C. Gollop

JUDGMENT

PLEMING JA:

Introduction

1.        This is the judgment of the Court.

2.        The Applicant makes a renewed application to this court for an extension of time within which to appeal and for leave to appeal against the sentence of four years imprisonment imposed on 29^th September 2010. On 18^th January 2011, her application was initially refused on the papers by the Bailiff, sitting as a single judge in the Court of Appeal.

3.        On 2^nd July 2010 the Applicant pleaded guilty to a charge of conspiracy to evade fraudulently the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.

4.        The Applicant was born on 13^th November 1981 and was 28 at the date of sentence. The Applicant did not have a criminal record before her guilty plea.

5.        The brief details of the offence can be taken from the summary provided to, and summarised by, the sentencing court:-

"The defendant was the courier for the importation of 119 grams of heroin worth approximately £119,000 on the streets of Jersey and in respect of which four other defendants were sentenced by the Royal Court on the 27^th May 2010 (see AG v Peacock and others [2010] JRC 101 for the full facts). Barrett was not sentenced at the same time due to her advanced stage of pregnancy at the time of the sentencing of co-defendants.

She stated that she had been asked by an ex-boyfriend who was then an inmate at La Moye prison, to import the drugs albeit she thought she was importing a quantity of cannabis. She undertook the importation for her own financial gain having been offered a sum of £800. She claimed she was under desperate financial strain at the time and needed the money to find accommodation for herself and her 11-year-old daughter. She did not in fact receive the funds. Benefited by having air fare, accommodation paid for and also receiving £150 whilst in Jersey from one of her co-defendants."

6.        The Applicant's co-defendants received sentences (in relation to the count of conspiracy) of between 3.5 and 6 years' imprisonment.

7.        In order better to understand the arguments advanced on behalf of the Applicant, it is necessary to include here the sentencing remarks of the Deputy Bailiff:-

"1.      You fall to be sentenced for one count of conspiring fraudulently to evade the prohibition on the importation of heroin into this Island.  The facts are that when the Police attended on 8th March, 2009, at an address in Grouville, a large oval shaped package wrapped in cellophane was seized.  It was found to contain 119.32 grams of heroin which have a street value in the Island of £119,300.  Police enquiries established that you purchased a return ticket on the morning of 7th March to fly with British Airways from Gatwick, with a return flight on the Sunday lunchtime.  Evidence was obtained from various members of the hotel where you booked accommodation which confirmed not only the making of that booking but also your arrival and departure.  The subsequent enquiries show that it was you who brought the package of drugs into the Island.  It is noted that you have said that you thought you were importing cannabis, but in fact it was heroin and it is well established that that does not amount to a defence to the charges. 

2.        The importation of heroin into this Island is a very serious offence and anyone who has seen the misery which follows from addiction to that drug, knows that.  Anyone who has been close to the drugs scene, and many who have not, are aware of the large profits which evil men make from this trade.  In this connection your participation in this particular importation was that you were prepared to bring drugs in for profit, namely for the sum of £800.  The Court's sentencing policy in these cases is absolutely clear.  It is well established that, absent exceptional circumstances, the Court will impose a custodial sentence.  Your counsel said that this case was about a young mother.  The Court thinks the case is about a young mother who has belatedly pleaded guilty to a charge of conspiring to import 119 grams of heroin with a street value of £119,000.  In the circumstances the Court thinks that a custodial sentence is right in principle and we are going to apply the usual rules in assessing what that sentence should be. 

3.        The first thing is the question of the starting point.  We have noted that from the quantity of drugs involved, the Crown would be well entitled to take a starting point of 10 years' imprisonment.  However, we have also noted that looking at the co-accused in this case, where a starting point of 9 years was fixed upon, we do not see that there is a significant distinction between you and the other co-accused, other than Peacock, although if there is a distinction it is in your importation of drugs for financial gain.  In the circumstances the Court is going to show an element of mercy in that connection and we take a starting point which is the same as that taken with most of your other co-accused, namely 9 years' imprisonment. 

4.        Against that starting point we now come to look at the mitigation which has been very fully advanced by your counsel and which the Court has taken very anxiously indeed into consideration.  The guilty plea came late, but we have nonetheless given substantial credit for it.  We have given substantial credit for what is your good character, you have two very minor convictions which we do not take into account, and we have read carefully the testimonials, the background report and everything that has been said in the papers which goes to your credit.  The Court has considered, carefully, the suggestion that priority should be given to the fact that as a mother, particularly as a young mother, a different approach should be taken, and the Court obviously notes, with sadness, that a long custodial sentence may have an impact on your children.  But against that one has to recognise that this is frequently the case and the fact is that an accused should think of these consequences before embarking on a course of criminal conduct.  In that balance also goes the amount of drugs and the damage which would be capable of being done to this community by this importation.  We have noted that you may apply for a transfer to a UK prison where mother and baby facilities may be available, but in any event and regardless of whether that application might be successful, the seriousness of the offence is such that a custodial sentence is right in principle. 

5.        In the circumstances you are sentenced to 4 years' imprisonment."

8.        Against that background Advocate Preston advances the following, summarised, grounds to support the submission that the sentence of 4 years imprisonment was wrong in principle and manifestly excessive:-

(i)        The Royal Court did not correctly apply the guidance in Rimmer, Lusk and Bade v Attorney General [2001] JLR 373 to the categorisation of the offence with the result that the starting point of 10 years was too high.  In so concluding the Royal Court failed to give sufficient weight to the Applicant's peripheral role and involvement in the offence.

(ii)       The Royal Court referred to "a starting point which is the same as that taken with most of your co-accused, namely nine years imprisonment" but this was only on the basis that the court was "going to show an element of mercy".  This had the effect of treating the Applicant as if her involvement was more serious than her relevant co-defendants, and it was an error of principle - confusing the starting point based on the offence, with personal mitigation - to introduce considerations of mercy.

(iii)      The Royal Court should have reduced the sentence on the basis that the Applicant had very strong mitigation.  In light of that mitigation a sentence of four years imprisonment was outside the appropriate range for the offence and offender in question and in such circumstances a sentence of no more than three years was appropriate.

(iv)      The Court of Appeal should admit fresh evidence to show that the four-year sentence had the unexpected effect of making the Applicant in eligible to be considered for the Home Detention Curfew policy of HM Prison Service such that it is likely that both of the Applicant's children will be deprived of their mother's company, care and support.

The law applicable to an appeal against sentence in Jersey

9.        Article 26(3) of the Court of Appeal (Jersey) Law 1961 states:-

"On any appeal against sentence, the Court of Appeal shall, if it thinks that a different sentence should have been passed on the Appellant in the proceedings from which the appeal is brought, quash the sentence and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal."

10.      The principles which apply and are followed in Jersey are set out in the judgments in Att. Gen. v Sampson (1965) JJ at 499 and Harrison v AG [2004] JLR 111, noting that "the Court will not alter a sentence merely because members of the Court might have passed a somewhat different sentence" - paragraph 29 of Harrison.

Ground 1 and Ground 2

11.      These two grounds can be taken together. Advocate Preston accepts that the Rimmer guidelines suggest a starting point of 10 - 13 years based on the weight of the heroin. The Court of Appeal made it clear in that case when setting suggested starting points that "these bands represent only guidelines, and are not to be treated as if embodied in 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 those 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" - emphasis added (paragraph 34).

12.      The Applicant's complaint is not that she should have been placed at the lower end of the band, 10 years, but that this was an exceptional case in which the starting point should have been below the band otherwise appropriate. Advocate Preston submits that the Royal Court failed to give sufficient weight to the Applicant's peripheral role and involvement in the offence and, in selecting a starting point of 10 years, the Royal Court effectively characterised the Applicant's role and involvement in the conspiracy as equal to, or more serious than, Brown, Da Silva and Crespel, her co-defendants who received sentences based on the same starting point.

13.      This Court has said that it must "be extremely circumspect in determining that a particular case is exceptional where the Royal Court, for whatever reason, has not done so" - see Styles, Day, Carney and De Sousa v. Attorney General [2006] JLR 210 at paragraph 94. Advocate Preston describes the Applicant as a classic 'mule', a one off courier with no previous involvement in drugs or the drugs' trade. The Crown contended before the Royal Court as follows:-

"In considering what is the appropriate starting point for [the Applicant], the Crown has had regard not only to the quantity and value of the drugs seized but also her role as a 'courier', a role which she clearly took on voluntarily and for financial gain. Sir, this court has repeatedly said that the part played by couriers is a vital part in the long chain that leads to drugs being sold in Jersey. In the circumstances Sir the Crown has taken a 'starting point' of 10 years imprisonment."

The reference there to the "court has repeatedly said" includes the judgment of this Court in Valler v Attorney General [2002] JLR 383, paragraph 10.

14.      Advocate Preston drew the Royal Court's attention to the distinctions, and similarities, as set out in the following exchanges:-

"Advocate Preston: Now the Crown says in this case the starting point for a courier, a person with no involvement otherwise in the drugs' trade, should be 10 years and that's why I said that that cannot be right. It cannot be right that the courier, the actual mule, not someone who is akin to a mule, should have a starting point that actually is higher than those others involved in the conspiracy, and that a starting point of 10 years simply cannot be right, particularly, in relation to Mr Brown and Mr Crespel. Mr Brown has a starting point of nine years and, given his previous drug offending, it's most likely that he was more involved in the drugs' trade in Jersey than someone from London who was merely bringing this package across, someone with no previous involvement in drugs at all.

It's my submission that the correct starting point for her, by comparison to the others involved, should actually be less than those who were on the ground in Jersey, a starting point of 8 years would be more appropriate.

Deputy Bailiff: Even though the drugs would not have arrived in the Island at all but for her?

Advocate Preston: Well yes Sir. The position must be that it cannot be more than 9 years; there is simply no justification for a starting point of any more than the others involved."

It is abundantly clear that the Royal Court was well aware of the argument.

15.      There should, therefore, be no cause for complaint if the Royal Court, in response to those submissions takes 9 years as the starting point.  Having considered the detailed submissions made on behalf of the Applicant it does not appear to this Court that the 'starting point' of 9 years was too high, or "simply too unjust to be right". 

16.      The true focus of the Applicant's complaint appears be the word "mercy" used by the Deputy Bailiff in the passage: "the Court is going to show an element of mercy in that connection and we take a starting point which is the same as that taken with most of your other co-accused, namely 9 years' imprisonment".  It is said that considerations of mercy play no role in determining seriousness and the Royal Court was wrong in principle to reduce the starting point on this ground. The submission then continues that, ignoring the mercy "discount", the starting point would have been 10 years thus placing the Applicant's offence at a higher level of seriousness than her co-defendants.

17.      The use of the word "mercy" in the judgment of the Deputy Bailiff is unfortunate and we agree with the submission for the Applicant (a submission also made by Advocate Gollop for the Crown) that it is inappropriate to rely on mercy to reduce a sentencing starting point.  However, it is completely clear from reading the Deputy Bailiff's judgment that the intention was to take the starting point of 9 years on the basis that there was no significant distinction between the Applicant and the other co-accused, apart from Peacock.  When read in context, therefore, the use of the word "mercy" was merely to show that the Court was intending not to treat the Applicant differently from her co-defendants when it was perhaps possible to see her role as marginally more serious.

18.      In our view there is nothing in these Grounds.

Ground 3  

19.      Advocate Preston submits, on the basis of the Applicant's "very strong mitigation", that a sentence of four years was outside the appropriate range for the offence and offender in question and in such circumstances a sentence of no more than three years was appropriate.  It is also submitted on the Applicant's behalf that the sentencing exercise was adversely affected by the Royal Court's categorisation of the Applicant's offence as more serious than was warranted by the facts. If this latter point is a reference to the starting point of 9 years then, for the reasons set out above, it is a submission which cannot be accepted.

20.      That leaves the question of mitigation and it is a clear from the transcript of the hearing before the Royal Court, and the judgment, that the sentencing court was well aware of the mitigating factors and the starting point was accordingly substantially reduced.  The Applicant was a willing participant in a serious commercial drugs importation conspiracy, and her sentence was correctly considered on the basis that she was prepared to take the risk to herself, and to her family, purely for personal financial gain.  We accept the submissions made by Advocate Gollop that a sentence of 4 years' imprisonment was within the appropriate range for the offence and for the particular offender.  We cannot see any legitimate basis upon which this Court could interfere with the sentencing decision and this ground is also dismissed.

Ground 4

21.      The new evidence point can be shortly taken. The Applicant complains that it has not proved possible for her to be with her infant baby in a mother and baby unit in prison because HM Prison Service policy is that only offenders with sentences of less than four years are eligible for Home Detention Curfew (day release). The submission is that the four-year sentence was manifestly excessive and disproportionate because it has the effect that it is likely to deprive both children of their mother by making her ineligible to be considered for the Home Detention Curfew scheme when a sentence of just under four years would not.

22.      The difficulty with the submission is that the Deputy Bailiff, in his judgment, expressly referred to the possibility of a transfer to a UK prison but concluded "regardless of whether that application might be successful" the seriousness of the offence was such that a custodial sentence was right in principle. There is no sound basis upon which this Court can interfere with that conclusion and although (notwithstanding Advocate Gollop's submissions to the contrary) we are prepared to take account of the new information, whether or not it is properly described as "fresh evidence", it does not lead this Court to conclude that "the sentence of four years, in conjunction with this policy, was manifestly excessive" such that we could substitute a sentence of "just under four years".

Conclusion

23.      We have set out Advocate Preston's contentions in some detail but, in the end, we have reached the same conclusion as the Bailiff when refusing the application for leave to appeal and, in our view, it is not seriously arguable that a reduction of more than 50% from an unimpeachable starting point of 9 years is inadequate to reflect the mitigation available to this Applicant.

24.      We also would have concluded that if this was an appropriate case in which to grant leave to appeal the time for appealing should be extended for the reasons set out in Advocate Preston's contentions. We consider that the Applicant should not be criticised or penalised, on the particular facts of this case, for delaying any application for leave to appeal against sentence during the course of her application to be transferred to a mother and baby unit, so that she could be reunited with her child.

25.      Our overall conclusion is that the sentence of four years imprisonment is not wrong in principle, is not manifestly excessive, and the application for leave to appeal is dismissed.

Authorities

Customs and Excise (Jersey) Law 1999.

AG v Barrett [2010] JRC 176.

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

Court of Appeal (Jersey) Law 1961.

Att. Gen. v Sampson (1965) JJ 499.

Harrison v AG [2004] JLR 111.

Styles, Day, Carney and De Sousa v. Attorney General [2006] JLR 210.

Valler v Attorney General [2002] JLR 383.