Jersey Unreported Judgments

Appeal against sentence.

[2013]JCA143

Court of Appeal

26 July 2013

Before     :

The Hon. Michael Beloff, Q.C., President; Christopher Nugee, Q.C., and; Robert Logan Martin, Q.C..

John Steven Allardice

-v-

The Attorney General

Appeal against the sentence imposed by the Superior Number of the Royal Court on 4^th March 2013.

Advocate P. S. Landick for the Appellant.

J. C. Gollop, Esq., Crown Advocate.

JUDGMENT

THE president:

This is the judgment of the Court.

1.        On 11^th January, 2013 the Applicant pleaded guilty before the Royal Court to the following charges:-

3 counts of:           Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 7, 9 and 11).

3 counts of:           Possession of a controlled drug with the intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Counts 6, 8, 10).

1 count of: Possession of utensils for the purposes of committing an offence, contrary to Article  10 of the Misuse of Drugs (Jersey) Law 1978 (Count 12).

2.        On 4^th March, 2013 the Applicant was sentenced as follows:-

Count 6     Possession with intent to supply 20.70g cocaine      4½ years in custody

Count 7     Possession of 20.79g cocaine                                 no separate penalty

Count 8     Possession with intent to supply 14.9g MDMA     4½ years in custody

Count 9     Possession of 14.39g MDMA                                  no separate penalty

Count 10    Possession with intent to supply herbal cannabis     6 months in custody

Count 11    Possession of herbal cannabis                                no separate penalty

Count 12    Possession of utensils                                             6 months in custody

All sentences were to be concurrent.

3.        The Applicant applies for leave to appeal against the sentences imposed on Counts 6 and 8 i.e. the concurrent sentences of 4½ years in custody only.  

4.        The Applicant contends that the sentences on Counts 6 and 8 were manifestly excessive, one fo the available grounds of appeal, set out in Harrison v AG [2004] JLR 111 [31].

5.        Taking the weight of the cocaine and MDMA together at 35.18g placed the offending, based on weight alone, within the 8-10 year Rimmer bracket.  [Rimmer v AG 2001/148]  The Crown, as noted in the Judgment para 3, moved for a starting point of 9 years.  The Court, however, concluded on the basis of weight and level of involvement that a starting point of 8 years i.e. at the bottom of the bracket was appropriate.

6.        The Applicant does not dispute the conventional discount for his guilty plea - and his mitigation explored in full in the Judgment para 5 amounts to an additional 10% off the starting point.  The Applicant's contentions are, however, that the starting point itself was too high and did not take account of the exceptionally low level of the Applicant's involvement.

7.        We are reminded with a reference to a wealth of well-known authority that cases such as Rimmer are guidelines not tramlines, that sentencing is an art not a science, and that all the circumstances of a case must be taken into account by a sentencing court.  None of those contentions are controversial.

8.        The Applicant contends that base starting point i.e. at the bottom of a bracket is used traditionally for someone who plays a courier role in a supply transaction and sought to distinguish the Applicant's role from that of a courier.

9.        It is not suggested by the Crown or Royal Court that the Applicant was a courier and we do not find the comparison, whether well-made or not, useful.  In any event the "starting point" fixed in any individual case of possession with intent to supply is not to be calculated by reference to a description of the accused's role but rather upon a consideration of the weight and value of the drugs involved and the level of involvement of the individual defendant.

10.      Both the Crown and the Royal Court did liken the Applicant to a minder.  The Applicant again sought to distinguish his own role from that of some notional paradigm minder.

11.      In our view whether someone is or is not classified as a minder (not a legal term of art) is a question of fact.  In ordinary parlance the Appellant was minding the drugs in as much as he had consciously allowed the anonymous third party use of his safe for the storing of drugs.  The true thrust of the submissions made on his behalf when properly analysed was that his degree of involvement as a minder was so limited that 4½ years was simply far too high.

12.      We find helpful this Court's approach in Rimmer 2001/148 (cited and approved by this Court said in Campbell v AG [1995] JLR 136.  In the context of a starting point for a case of involvement in drug trafficking it said:-

"...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 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 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."

13.      It is accepted that the context of the Applicant's acts was drug trafficking by the person who asked him for use of his safe as storage.  As to the Applicant's state of mind it is clear from Rimmer and Campbell that ordinarily an erroneous belief as to what (in this instance) the Applicant was minding is irrelevant.  Indeed the Applicant's case in terms of belief is weaker than that postulated in those two cases.  He had no mistaken belief as to what might be placed in the safe.  He thought that it might be drugs (which, given all the circumstances of the request made would be a plausible inference), but did not inquire.  The reasoning in Campbell and Rimmer seems applicable a fortiori.

14.      There are many areas in which the law equates knowledge of fact and recklessness as to whether it exists when determining relevant consequences.  There are areas in which taking the same risk may result in different sanctions: when one of two motorists guilty of dangerous driving as a result kills a pedestrian but the other does not, the former will suffer sanctions greater than the latter.   We are not, therefore, impressed by the submission that had the items stored been cannabis, not cocaine, the sentence would be less.  The Applicant took the risk and paid the price.

15.      The Royal Court accepted that the Applicant was to be sentenced on the basis of the factual basis that he had put forward for the guilty pleas entered by him.  Thus at paragraph 2 of the Judgment the Deputy Bailiff stated:-

"You are here to be sentenced on a factual basis which you have put forward to the Crown through your counsel."

He continued (so far as material):-

"You have said that on the evening of the 9^th September last year, you and a group of other people had been out at public houses.  You returned to your flat where the party continued.  One of the guests distributed illegal drugs and you have confirmed that you knew who that person was but you declined to name him for fear of reprisal.  You then said that you went to bed about 2:30 in the morning; you were woken up first thing the following morning by the third party who asked you if he could place some items in the safe, you agreed that he should do so, you agreed that you did not ask any questions.  You thought that the items might well be illegal drugs."

He added, by way of footnote:-

"We are sentencing you on the agreed basis of what was put forward but we have noted, in passing, the inconsistency of what you said to the probation officer."

We do not however read that as detracting from his stated approach.

16.      At paragraph 3 of the Judgment the Deputy Bailiff reviewed the appropriate "starting points" from Rimmer and then stated:-

"And that really emphasises that what the Court is doing is to look at the overall involvement in drug trafficking."

It is therefore clear that the Royal Court had the need to consider the Applicant's actual level of involvement well in mind.

17.      While the Royal Court was not - and this Court is not - bound by the submissions of counsel, it is not without note that the highly experienced Advocate for the Applicant chose that as the starting point contended for below.

18.      As to the Applicant's level of involvement, limited though it may have been in contrast to other hypothetical scenarios, we note that the following conclusions can properly be drawn from the agreed facts:-

(i)        Whilst the Applicant refused to identify the person who had left the drugs in the safe, it is clear that such person was a "guest" not a stranger to him. 

(ii)       The Applicant had invited this person back to his home and was present when he produced and supplied a variety of illegal drugs to the other persons at the party. 

(iii)      It was the same person that the Applicant allowed on the following morning to store the items suspected to have been drugs in the Applicants safe.

(iv)      That this person was prepared to leave valuable drugs suggests that he clearly trusted the Applicant to safeguard his drugs for whatever period of time he chose to leave those drugs in the Applicant's custody necessarily in the expectation that he could return at any time to retrieve them.

19.      The Court of Appeal did not in Vipond v AG [2004] JCA 086, [31-34] consider the fact that the defendant in that case was only required to "mind" the drugs for one day, as a factor which went to reducing that defendant's culpability and therefore the "starting point".  As the Court said "a minder can and usually does play a fundamental part in ensuring that dangerous drugs reach their intended market" [7].  It is the provision of a safe storage place, as the Crown submitted in the present case, that is all important in fulfilling the role of a "minder" or custodian preventing the dealer from being exposed to being caught red handed on the street with an expensive amount of drugs.  As the Deputy Bailiff said at para 4:-

"Minding drugs for those who are higher up the chain makes it easier for those people who carry greater culpability to avoid detection and it makes it, accordingly, more likely that the drugs will end up on the street.  This makes the offence a serious offence and it requires, in our view, the sentence of imprisonment."

20.      Furthermore the Applicant was not innocent of drug trafficking.  As the Deputy Bailiff noted at para 5:-

"You have twice been before this Court on drug trafficking charges previously and have been given non-custodial sentences.  In February 2007 you had a 240 hour Community Service Order and in September 2008 further Community Service Orders for being concerned in the supplying or offering to supply a controlled drug.  In the circumstances we think the right sentence of imprisonment in 4½ years' imprisonment and you will therefore go to prison for that period of time."

The Applicant by reason of his own experience should have been fully aware of the consequences of being concerned in the supply of drugs irrespective of how one categorises his specific role.

21.      Finally although urged to do so, we do not find it helpful to consider what the Applicant's sentence might have been had he faced other charges arising out of the same events.  By his plea of guilty he accepted that the ingredients of the offence with which he was actually charged were made out.

Conclusion

22.      For the foregoing reasons we dismiss this application for leave to appeal.

Authorities

Misuse of Drugs (Jersey) Law 1978.

Harrison v AG [2004] JLR 111.

Rimmer v AG 2001/148.

Campbell v AG [1995] JLR 136.

Vipond v AG [2004] JCA 086.