Darryn Rae v HM Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeDavid C. Perry,David Doyle,Nigel Pleming
Judgment Date22 November 2017
Neutral Citation[2017] JCA 197
Date22 November 2017
Darryn Rae
and
Her Majesty's Attorney General

[2017] JCA 197

Before:

Nigel Pleming, Q.C., President;

David C. Perry, Esq., Q.C., and;

David Doyle, First Deemster and Clerk of the Rolls, Isle of Man.

COURT OF APPEAL

Appeal against sentence imposed on 25 May 2017.

Application for leave to appeal against the sentence imposed by the Superior Number of the Royal Court on 25 th May, 2017 on the following list of charges:

Indictment

3 counts of: Money laundering, namely entering into or becoming concerned in an arrangement that facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person contrary to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999.

Authorities

AG v Rae and Spinola [2017] JRC 080 .

Harrison v Attorney General [2004] JLR 111 .

Franey & MacAlinden v AG [2006] JCA 078A .

AG v Goodwin [2016] JRC 165 .

AG v Turney [2016] JRC 175 .

AG v Fish and Hinds [2016] JRC 181A .

AG v Whelan, Grace and Robinson [2017] JRC 040B .

Morgan v AG [2001] JLR 225 .

Bhojwani v AG [2011] JLR 249 .

Bevan v AG [2003] JCA 014 .

Rugg (1977) 2 Cr App R 350.

Fawcett (1983) 5 Cr.App R(S) 158.

Advocate J. Grace for the Appellent.

E. L. Hollywood, Crown Advocate for the Attorney General.

THE PRESIDENT:
Introduction
1

This is the judgment of the Court.

2

We are grateful to both advocates for their helpful written and oral contentions.

3

The appellant was charged, together with Antonio Miguel Spinola (“Spinola”), on an indictment with three counts of money-laundering. Spinola was also charged with a separate count of being in possession of criminal property (namely £65,205 in cash), together with drugs offences – one count of possession of 2.2 kilograms of cannabis with intent to supply, and one count of possession of 19 1/2 MDMA tablets and 2.96 grams of MDMA powder.

4

The brief details of the offences, taken from the report of the Royal Court's decision AG v Rae and Spinola [2017] JRC 080, are as follows:

“Rae made three trips to Jersey from Southampton. He was kept under surveillance during his time in the Island. During his first trip, Rae was observed meeting with Spinola and placing a bundle of cash into a bag. Rae then deposited £9,000 in cash into his bank accounts before leaving the Island. During his second trip, Rae was observed retrieving something from Spinola's car. Rae then deposited £5,200 in cash into his bank accounts before leaving the Island. During his third trip, Rae was observed meeting with Spinola in Spinola's car. Both parties were arrested and £8,000 in cash was seized from the passenger foot well of the car .

Following the arrests, customs officers searched Spinola's flat and seized inter alia; (i) a shoebox containing 22 bars (2145.32 grams) of cannabis resin and a quantity of re-sealable plastic bags; (ii) a plastic container containing 19 1/2 MDMA tablets, 2.96 grams of MDMA powder and 1.28 grams of cannabis resin; (iii) a cardboard box containing 42.08 grams of cannabis resin; (iv) a cash counting machine; (v) a suitcase containing £30,000 in cash; and (vi) a safe containing £35,205 in cash.”

5

The appellant received a total of 4 years' imprisonment. This accorded with the conclusions of the prosecution. Spinola received a total of 3 years and 9 months' imprisonment. This did not accord with the total of 5 years and 6 months' suggested by the prosecution.

6

The appellant raises three grounds of appeal in his application for leave to appeal against sentence:

  • (i) The Royal Court erred when it departed from the facts agreed by the prosecution and defence and thereby sentenced on the wrong factual basis;

  • (ii) The sentence was manifestly excessive;

  • (iii) There was an unjustified disparity of sentence between the appellant and Spinola.

The role of the Court of Appeal
7

The approach in this Court has been set out, comprehensively, in Harrison v Attorney General [2004] JLR 111, Nutting JA at para 31:

“31. The summary in Archbold, Criminal Pleading, Evidence & Practice (2003 ed.) provides a helpful resumé of the position which we adopt for this jurisdiction (op. cit., para. 7–136, at 966):

“In broad terms, it is submitted that the court will interfere: (a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law; (b) where sentence has been passed on the wrong factual basis; (c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive.”

This is the basic point from which the Court of Appeal starts its analysis of a Royal Court sentencing decision. The Attorney General suggested that sometimes the Court of Appeal had “tinkered” with Royal Court sentences. This complaint contains the seeds for misunderstanding. In some recent cases, the Royal Court has acted on a wrong factual basis: correction on this ground may result in a relatively small alteration to the length of the sentence, but the change must nevertheless be made. Sometimes the Royal Court fails to create a sufficient disparity of sentence between offenders or creates an excessive disparity: a correction may again have to be made notwithstanding that it may result in a relatively minor change to the length of the sentence. But where special factors such as these are not present, we agree that this court should adopt the approach described in Morgan set out above.”

The first ground – wrong factual basis
8

The complaint is that the sentence was passed on the basis of “mere supposition” (relying on Archbold 2017, at para 7–137), and on an erroneous factual basis when it was said that the appellant and Spinola were involved in the same “criminal enterprise”. In particular it is said that the Royal Court erred by taking into account factors, the drugs offences, that were only relevant to Spinola's sentence. The appellant relies on paragraph 7 of the judgment of the Royal Court. To put that paragraph in context it is first necessary to read paragraphs 2 and 3:

“2. The defendants were involved in a criminal enterprise operating at a significant scale in which Spinola acted as the banker in Jersey collecting the proceeds of the sale of drugs in Jersey and handing it over to Rae who would come over to Jersey to bank it in cash in two bank accounts he had here whereby the proceeds were paid upstream to associates in England. Three trips to Jersey by Rae were monitored by the police in which he collected a total of £22,000 handed over by Spinola, including the £8,000 found in Spinola's car when the two were stopped and arrested. The quantities of cash were such that Spinola had acquired a safe and a cash counting machine .

3. A search of Spinola's flat revealed the cannabis resin and MDMA and £65,205 in cash in two locations. Spinola told the police that this cash was due to Rae, something Rae denies, but we regard it as part of the criminal enterprise, for which Spinola will receive a concurrent sentence. Spinola told the police that the drugs found in his flat was his reward over the part he played in the enterprise. He and his girlfriend were cannabis users and he would sometimes give cannabis to friends; whether he charged his friends depended on how, using his words, “flush they were”.”

9

It appears to this court that those paragraphs are a fair summary of the facts. It was obvious that this was an enterprise in which both the appellant and Spinola played a part – it was indeed a criminal enterprise. It would have been wrong for the Royal Court to have ignored the context in which the money laundering took place. The appellant was not being sentenced, separately, for the drugs offences but the fact that the money related to a criminal drugs enterprise was a relevant factor.

10

Paragraph 7 of the Royal Court's judgment provides:

“We will come to the issue of mitigation in a moment, but the Crown also took the view that the drugs found at Spinola's flat were unrelated to the enterprise with Rae and should be dealt with consecutively. Applying the guidelines in Campbell v AG [1995] JLR 136 to the cannabis this would lead to a consecutive sentence of 1 1/2 years for the cannabis and therefore a total sentence of...

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