Bonnar v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Southwell, Smith and Tugendhat, JJ.A.
• Judgment Date: 26 October 2001
• Date: 26 October 2001

COURT OF APPEAL

Southwell, Smith and Tugendhat, JJ.A.

M.L. Preston for the first appellant;

Miss S.E. Fitz for the second appellant;

P. Matthews and Mrs. S. Sharpe, Crown Advocates, for the Crown.

Cases cited:

(1) Att. Gen. v. Chadwick, 1995 JLR N-23, considered.

(2) Att. Gen. v. Jones, Royal Ct., June 6th, 1996, unreported, considered.

(3) Bray v. Att. Gen., 2000 JLR N-57, considered.

(4) Campbell (A.T.) v. Att. Gen., 1995 JLR 136, followed.

(5) Fogg v. Att. Gen., 1991 JLR 31, followed.

(6) R. v. Aranguren (1994), 99 Cr. App. R. 347; 16 Cr. App. R. (S.) 211; [1994] T.L.R. 342; sub nom. R. v. Aroyewumi, [1994] Crim. L.R. 695, not followed.

(7) R. v. Hurley, [1998] 1 Cr. App. R. (S.) 299, considered.

(8) R. v. Warren, [1996] 1 Cr. App. R. 120, considered.

(9) Rimmer v. Att. Gen., 2001 JLR 373, followed.

Additional cases cited by counsel:

Bruton v. Att. Gen., 2000 JLR N-58.

R. v. Martinez (1984), 6 Cr. App. R. (S.) 364.

R. v. Wijs, [1999] 1 Cr. App. R. (S.) 181.

Criminal Law—drugs—importation—sentence—Class A drugs in tablet or unit form—number of units and defendant's involvement or role are principal factors—court not to consider purity of drugs unless purity very high or dangerous impurities added—street value less important factor

Criminal Law—drugs—importation—sentence—Class A drugs in tablet or unit form—new starting points specified for calculation of sentence

The appellants were charged in the Magistrate's Court with being knowingly concerned in the importation of and with possession with intent to supply various Class A drugs.

In two separate cases, the appellants were convicted of various drug-trafficking offences and were remanded for sentence by the Royal Court. The first appellant imported 3,891 Ecstasy tablets, with a street value of at least £46,690, hidden in the spare wheel of his car. He had allowed the drugs to be placed there and was reckless as to which drugs were present. He was paying for the car, worth £2,500, by bringing the drugs to Jersey. He pleaded guilty and was sentenced before the Royal Court to eight years' imprisonment. The second appellant imported 2,258 Ecstasy tablets, with a street value of £27,096-£33,870, in return for £500. She knew her actions were illegal but believed she was carrying Viagra. Her son, who was also arrested, had persuaded her to act as a courier to clear his £3,000 debt to his drug dealers. She pleaded guilty and was sentenced before the Royal Court to five years' imprisonment.

On appeal against sentence, the court consolidated the two appeals to allow itself the opportunity to review sentencing policy for cases involving the trafficking of Class A drugs carried or sold in tablet or unit form, and to give guidelines for future cases. The Attorney General submitted that, as there should be no divergence of approach between the sentencing guidelines for Class A drugs carried in tablet or unit form and those carried in powder form, (a) the quantity of Class A drugs and the involvement of the defendant should be the primary considerations in deciding on a starting point for sentencing; (b) street value or wholesale value was a less important factor; and (c) the purity of the tablets or units was irrelevant, unless the purity was very high or dangerous impurities had been added.

The appellants submitted that their sentences were too high in all the circumstances of their cases and should be reduced.

Held, allowing the appeals:

(1) There was to be no divergence between the sentencing guidelines for Class A drugs carried in tablet or unit form, such as Ecstasy and LSD, and those for Class A drugs, such as heroin and cocaine, which were carried in powder form. Whatever the relative risks of the different drugs, they had all been categorized as Class A drugs and there was therefore no justification for adopting the materially lower level of sentencing proposed by the appellants. In accordance with the sentencing guidelines for Class A drugs carried in powder form, (a) the primary factors in sentencing were the amount or quantity of Class A drugs carried or sold and the role of the defendant; (b) the appropriate measurement of quantity of Class A drugs carried in unit form was the number of tablets, capsules or other units; (c) the purity of the units was to be disregarded unless the purity was very high or dangerous impurities, likely to endanger the lives or health of users, had been added; (d) there was therefore no reduction if the degree of purity was below average; and (e) the street or wholesale value was a factor of much less importance but should be available in evidence ( para. 17; para. 19; para. 23).

(2) The scale of starting points for calculating sentences in all "trafficking" offences by reference to the number of units alone, in the case of Class A drugs carried or sold in tablet, pill or unit form, should in future be as follows:

No. of units	Starting point (years of imprisonment)
1-500	7-9
500-1,000	8-10
1,000-2,500	9-11
2,500-4,000	10-13
4,000-5,500	11-14
5,500 and over	14 upwards

The correct approach was to determine the position of a particular defendant on a particular count within one of the bands by reference to the number of units and his role and involvement as principal factors, and less significant factors including street value or wholesale value. There might also be exceptional cases in which the starting point would be above or below the band otherwise appropriate. Mitigating factors were not to be considered in determining the starting point ( para. 22).

(3) The first appellant was carrying 3,891 Ecstasy tablets and was a courier of the most valuable kind, namely that he did not concern himself with the kind of drugs he was importing. This placed him in the 10-13 year band and, on balance, a starting point of 11 years' imprisonment was appropriate. A discount of one-third was appropriate due to (a) his guilty plea; (b) his mental problems; (c) his children; (d) his efforts to improve himself; (e) his remorse; (f) the threats to which he had been subjected; and (g) two strong testimonials. Accordingly, his appeal was allowed and a sentence of seven years' imprisonment substituted ( paras. 29-34).

(4) Although the second appellant was carrying 2,258...