Campbell (A.T.) v Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeBailhache, Bailiff, Hamon, Deputy Bailiff, Le Quesne, Blom-Cooper and Lord Carlisle of Bucklow, JJ.A.:
Judgment Date04 April 1995
Date04 April 1995
COURT OF APPEAL
Bailhache, Bailiff, Hamon, Deputy Bailiff, Le Quesne, Blom-Cooper and Lord Carlisle of Bucklow, JJ.A.:

P.C. Harris for the first and second appellants;

Miss S.J. Fitz for the third appellant;

M.C. St.J. Birt, Q.C., Attorney General, for the Crown.

Cases cited:

(1) Att. Gen. v. Lawlor, Royal Ct., April 25th, 1994, unreported.

(2) Att. Gen. v. Pagett, 1984 J.J. 57, dicta of Neill, J.A. considered.

(3) Att. Gen. v. Stead, Royal Ct., June 21st, 1993, unreported.

(4) Carter v. Att. Gen., C.A., September 28th, 1994, unreported, followed.

(5) Clarkin v. Att. Gen., 1991 JLR 213, considered.

(6) Fogg v. Att. Gen., 1991 JLR 31, considered.

(7) R. v. Aramah (1982), 76 Cr. App. R. 190; 4 Cr. App. R. (S.) 407; [1983] Crim. L.R. 271; 147 J.P. 217; 127 Sol. Jo. 85, considered.

(8) 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.

(9) R. v. Bilinski (1987), 86 Cr. App. R. 146; 9 Cr. App. R. (S.) 360; [1987] Crim. L.R. 782, not followed.

(10) Rawlinson v. Att. Gen., 1993 JLR 1, considered.

(11) Schollhammer v. Att. Gen., 1992 JLR 165, dicta of Neill, J.A. considered.

(12) Stewart v. Att. Gen., 1994 JLR N-13.

Additional cases cited by counsel:

Att. Gen. v. Bate, 1993 JLR N-9.

Att. Gen. v. Clohessy, Royal Ct., January 25th, 1989, unreported.

Att. Gen. v. Hunter, Royal Ct., January 5th, 1995, unreported.

Att. Gen. v. Little, Royal Ct., July 25th, 1994, unreported.

Att. Gen. v. Vellam, Royal Ct., March 5th, 1993, unreported.

Drew v. Att. Gen., 1994 JLR 1.

Ferri v. Att. Gen., C.A., September 27th, 1993, unreported.

Lynch v. Att. Gen., 1994 JLR N-13.

McMahon v. Att. Gen., C.A., November 30th, 1992, unreported.

R. v. Carter (1986), 8 Cr. App. R. (S.) 410.

R. v. Cunningham (1992), 14 Cr. App. R. (S.) 444.

R. v. Hollington (1985), 7 Cr. App. R. (S.) 364.

R. v. Lane (1989), 11 Cr. App. R. (S.) 547.

R. v. Lawson (1987), 9 Cr. App. R. (S.) 52.

R. v. Singh (1988), 10 Cr. App. R. (S.) 402.

Todd v. R., Isle of Man Staff of Govt., January 9th, 1995, unreported.

Text cited:

Tackling Drugs Together, Cmnd. 2678 (1994).

Criminal Law—drugs—importation—sentence—Class A drugs—starting point for serious involvement in trafficking, e.g. 1,000 units LSD, is 12 years' imprisonment—starting point for commercial trafficking unlikely to be less than 7 years

Criminal Procedure—sentence—mitigation—erroneous belief that drug less serious than that actually carried does not generally mitigate sentence

Criminal Procedure—sentence—mitigation—no automatic one-third discount of sentence for guilty plea to drug trafficking offence—amount of discount depends on circumstances of case—no mitigation if guilty plea virtually inevitable

Criminal Law—drugs—importation—sentence—street value and weight to be considered in determining sentence—court not to consider hypothetical street value if drug diluted

Criminal Law—drugs—importation—sentence—Class B drugs—starting points: trafficking over 30 kg.: minimum 10 years; 10-30 kg.: 6-10 years; 1-10 kg.: 2-6 years—if inappropriate to consider weight, may consider, e.g. street value, e.g. in case of amphetamines

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

In three separate cases, the appellants were convicted of various drug trafficking offences and were sentenced accordingly by the Superior Number of the Royal Court. The first appellant pleaded guilty and received two concurrent sentences of 5 ½ years' imprisonment for being knowingly concerned with the importation of and possession with intent to supply 11.68 g. of heroin respectively. He also received two concurrent sentences of one year's imprisonment after pleading guilty to similar offences in relation to 21.3 g. of cannabis resin. The second appellant was convicted after pleading guilty to being knowingly concerned in the importation of 2.35 g. of heroin, 665 ecstasy tablets and a small quantity of cannabis resin, for which he received sentences of 2 years, 5 ½ years and 6 months' imprisonment respectively, as well as a 5 ½-year sentence for possession of the ecstasy tablets with intent to supply them to others. The third appellant was sentenced to 8 years' imprisonment after pleading guilty to a charge of being knowingly concerned in the importation of 79.6 g. of heroin.

The Court of Appeal consolidated the three appellants' appeals against sentence to allow itself the opportunity to review sentencing policy for drugs cases generally and to give guidelines for future cases. The Attorney General provided evidence that the quantity of drugs being imported into the Island was increasing, as was the number of offenders being convicted of drugs offences and submitted that although no study had been conducted in Jersey, it was likely that as in England where studies had provided positive evidence, there was an increase in the general level of acquisitive crime as drug users, particularly heroin addicts, funded their drug habits from the proceeds. He submitted that (a) the starting points previously adopted by the courts for all offences relating to drug trafficking should be increased to provide a greater deterrent effect, both in the case of Class A and Class B drugs, and in the light of this, the sentences in the present cases should not be reduced; (b) it was no excuse for an accused to say that he thought he was importing a Class B drug when in fact it was Class A; (c) there was no standard reduction of sentence of one-third for a plea of guilty and whilst a guilty plea often did provide mitigation, the extent to which it was relevant depended on the circumstances and it was possible that it might provide less than the maximum reduction of one-third, or none at all, e.g. if the accused were caught committing the offence and had no realistic choice but to plead guilty; and (d) in Jersey both the weight and the street value of imported drugs were relevant in determining the appropriate sentence.

The appellants submitted that their sentences were too high in all the circumstances of their cases and should be reduced. In particular, the first appellant submitted that in his case the Royal Court had considered not only the weight of heroin he had been carrying, 11.68 g., and its estimated street value of £3,504, but also its estimated street value if diluted to 10% purity (since dilution was a common practice), which was £16,000. He submitted that this had led the court to consider his offence to be more serious than in fact it had been and to pass too high a sentence upon him, since there was no evidence that that figure had any application to his case.

Held, allowing the first appellant's appeal in part, dismissing the appeals of the second and third appellants and giving the following guidelines:

(1) It was clear that the importation of drugs into Jersey was a growing social menace and the court would therefore reflect its view of the gravity of drug trafficking by directing that in future sentences would be higher than they had been in the past. In the case of Class A drugs, the proper procedure was to adopt a starting point appropriate to the seriousness of the offence, before considering the effect of any mitigating factors and, e.g., for an offender's close involvement with the importation of 1,000 units of LSD and other drugs, a starting point of 12 years would now be appropriate. Furthermore, it was unlikely that the starting point for an offence relating to trafficking on a commercial scale would ever be less than seven years. These guidelines related to all "trafficking" offences, such as being involved with importation or possession with intent to supply, notwithstanding the varying maximum sentences prescribed for such offences (page 144, line 7 - page 145, line 17).

(2) In general an erroneous belief that the drug being trafficked was of a less harmful variety than in fact it was was not a mitigating factor, since both the consequences of the importation on the community and the moral blameworthiness of the accused's conduct were the same regardless of his belief (page 145, lines 35-45).

(3) There was no rule that a plea of guilty to a trafficking offence automatically attracted a reduction in sentence of one-third. Whilst an accused was usually entitled to a substantial reduction of up to that amount for pleading guilty, the size of the discount depended on all the circumstances and it could even be the...

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