Bevan v AG

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Carey JA
• Judgment Date: 17 January 2003
• Neutral Citation: [2003] JCA 14
• Date: 17 January 2003

[2003] JCA 14

COURT OF APPEAL

Before:

R.C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey; and P.S. Hodge, Esq., Q.C.

Neil John Bevan

and

The Attorney General

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

Mrs. S. Sharpe, Crown Advocate.

Authorities

Campbell and ors v. AG (1995) JLR 136.

Bonnar and Noon v. AG (2001) JLR 626 C of A.

AG v. Layton (4th July 2002) Jersey Unreported; [2002/126]

Rimmer etc v. AG [2001] JLR 373.

Jenkins v. AG (23rd January 2001) Jersey Unreported; [2001/22]

McClements v. AG (18th July 2002) Jersey Unreported; [2002/132]

Rugg (1977) 2 Cr. App E(s) 350.

Welsh v. AG [2002] JLR N.17

Appeal against a sentence of 5 ¹/₂ years' imprisonment passed on 10th October, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 28 ^th June, 2002, following a guilty plea to guilty to:

2 counts of: possession of a controlled with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1961:

count 5: MDMA.

Count 6: cannabis.

[On 28th June, 2002, the Crown accepted the appellant's not guilty plea to count 7 of the indictment; the remaining counts relate to a co-accused, who has not appealed.]

Leave to appeal was granted by the Deputy Bailiff on 18 ^th November, 2002.

Carey JA

Introduction

1 This is the judgment of the Court. The Appellant has been granted leave by the Deputy Bailiff to appeal against the sentence imposed upon him on 10th October 2002 when he appeared before the Superior Number of the Royal Court for sentencing. He was jointly indicted with another defendant David Alan Perry.

2 As the Deputy Bailiff has helpfully explained that his sole reason in giving leave to appeal was the possibility that there was an unfair disparity in the sentences imposed upon Perry and this Appellant we need to record what we understand were the facts of the case against Perry as well as those against the Appellant.

3 The offences to which Perry pleaded guilty and the sentences imposed were as follows:

Count 3

Supplying Class A (453 MDMA capsules) 2 years

Count 4

Supplying Class B (approx 2.75 kilos of cannabis resin) 2 years concurrent

Count 8

Possession with intent to supply Class A (26 MDMA capsules) 2 years concurrent

Count 9

Possession with intent to supply Class B (approx 250 grams cannabis resin) 6 months concurrent

The indictment contained a further 2 counts to which the Appellant pleaded guilty:

Count 5

Possession of Class A with intent to supply (453 MDMA tablets) 5 ¹/₂ years

Count 6

Possession with intent to supply Class B (2.75 kilos of cannabis resin) 3 years concurrent

Circumstances of the Offence

4 On the afternoon of 14 ^th May 2002 Perry left his address at David Place and walked to Dorset Street where he met the Appellant who apparently was waiting for him near the Dorset Tavern. Perry handed to the Appellant the white plastic carrier bag, which was in his possession. Both men stood in a doorway for some time looking up and down the road. The Appellant moved away and started walking down Great Union Road carrying the plastic bag, which had been handed to him by Perry. He was then approached by a police officer, who had been watching the two men. There was a struggle but the Appellant was restrained and handcuffed. The bag was retrieved and the drugs which form the subject of counts 3 and 4 of the indictment, so far as Perry is concerned, and counts 5 and 6, so far as the Appellant is concerned, were retrieved therefrom. The police arrested Perry who initially ran away. A warrant to search Perry's home, which had already been obtained, was then executed and further drugs were found therein which formed the subject matter of counts 8 and 9.

5 To return to the arrest of the Appellant, his immediate response to being arrested on suspicion of being in possession of controlled drugs with intent to supply was to say that it was fishing tackle in the bag. Perry's account of this transaction so far as it was presented to the court was that the Appellant had lent him £400 to go home to attend his grandmother's funeral. He did not know the Appellant's surname but about 2 weeks earlier had agreed to store some drugs for him in return for which the debt would be cleared. So far as the drugs found at Perry's house were concerned, he said that one block of cannabis resin was left behind accidentally when he collected up the consignment to take to the Appellant. The 26 MDMA tablets found in a cup in his kitchen were the property of the Appellant. Perry said that the Appellant had been round to his house on a number of occasions during the time he was holding the drugs for him. We remind ourselves that most of the above comes from Perry's mouth and is in no way confirmed from other evidence.

6 We then look to what the Appellant said about this matter. He said he was staying in Jersey with a friend, he had no money, he had abused cannabis for the last 12 – 14 years, he seemed to have spending money, to socialise, and he had had a job as a bricklayer for £100 a day. On the day of his arrest he had got up, had a bath, played a game of golf and then in his words “he got nicked”. He then gave the explanation of meeting Perry in a pub and arranging to meet him to receive some fishing tackle. Later he admitted that he knew there was weed in the white bag but not tablets. His intention was to give the cannabis to the person it belonged to. The Appellant denied knowing about the MDMA and claimed to have no knowledge of the value of cannabis although he did make certain admissions later as to its weight and value. The Appellant admitted having lent money to Perry.

7 Conclusions were offered by the Crown Advocate and a starting point of 8 years was taken in the case of Bevan, and 7 ¹/₂ years for Perry in accordance with the guidelines for 1–500 units of Class A drugs in tablet form. A similarly reduced starting point to take account of the differing roles was suggested in the case of the Class B drugs. The total imprisonment recommended for the Appellant was 5 ¹/₂ years and for Perry 5 years.

The Defence at Trial

8 Advocate Berry, who represented the Appellant at trial took the line that the Appellant was, like Perry, a minder for their owner, an unknown dealer whom he was not able to identify and who had asked him to keep the drugs for three weeks in return for a payment of £500. As he, the Appellant was moving he asked Perry to mind them in return for £400.

9 His counsel re-iterated the Appellant's denial of knowledge of MDMA in the consignment which was allegedly being looked after for the unknown third party. Reference was...