B e f o r e :
LORD JUSTICE MANCE
MR. JUSTICE PENRY-DAVEY
and
MR. JUSTICE LEVESON
____________________
| |
R
| Respondent
|
| | - and -
|
|
| | (1) ERICA HOWELL
&
(2) LENWORTH LAMONT
| Appellants
|
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mark Milliken-Smith (instructed by the Solicitors for HM Customs & Excise for the Respondent)
Nicholas Fooks (instructed by Messrs Wilson Holder for the First Appellant)
Grant Van Stone (instructed by Messrs David Street & Co. for the Second Appellant)
____________________
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________
Crown Copyright ©
Lord Justice Mance:
Introduction
- The appellant Howell appeals with leave of the Full Court against her conviction on 25th November 1999 at the Croydon Crown Court before HHJ McHale for being knowingly concerned in the fraudulent importation of 7.758 kgs of cocaine (at 100% purity) contrary to s.70(2)b) of the Customs and Excise Management Act 1979. She was sentenced on 1st December 1999 to 15 years imprisonment. Leave was granted in respect of her conviction on grounds, which fall under two heads (a) the character direction given by the judge in summing up and (b) the predicament in which, it is suggested, that the jury was placed by the reference to 7.758 kgs and/or the suggested impossibility of knowing on what basis, or by reference to what quantity, the jury had in fact convicted. The Full Court also referred to us a renewed application for leave to appeal against sentence. This picks up the second ground relating to conviction. If that ground fails, then it is suggested that the judge in sentencing faced a similar predicament and/or erred in sentencing on the basis that the appellant was involved with respect to the full 7.758 kgs.
- The appellant Lamont appeals against the sentence of 12 years imprisonment passed upon him at the Croydon Crown Court before the same judge on 1st December 1999 for the same offence involving the same importation to which he had pleaded guilty on 22nd July 1999. A co-defendant, Marshall, who also pleaded guilty to the same offence involving the same importation, on 11th November 1999 (the second day of the trial involving the appellant Howell) also received a 12 year sentence of imprisonment. Lamont now raises the short point that, having regard to his earlier plea, he should have received a lesser sentence than Marshall.
Outline facts
- The appellants arrived in Gatwick Airport from Jamaica on 3rd April 1999 on the same flight as another co-defendant, Paul Harding. The 7.758 kgs in relation to which they were convicted was imported in a variety of ways. Howell had swallowed 20 packages containing (at 100% purity) 112 gms; and in her handbag and suitcase (the latter interlined to Israel but recovered before despatch from Heathrow Airport) were two bottles of, respectively, Wincarnis and Sanatogen wine containing 767 gms and a tin of cheddar processed cheese containing 1064 gms. Marshall had swallowed 100 packages, containing 689.64 gms, and with him were two bottles of, respectively, Wincarnis and Sanatogen wine containing 738 gms and a tin of Crest processed cheese containing 1032 gms. Lamont had swallowed 104 packages, and with him were three tins of processed cheese containing 2793 gms.
- When intercepted in the Customs Hall, Howell said that she was part of a group going to Israel for a baptism. She knew only one other person in the group, Harding. In her first interview on 3rd April 1999, she said that she earned about $10,000 a month and that the trip with hotel and everything cost $85,000 which she had paid out of savings. She had brought $500 with her, but must have lost it from her pocket. It was as far as she was concerned a coincidence when she saw Harding at Montego Bay on the same flight as her, and she did not know where he was going. She had cancer which was alleviated by taking cannabis, and had bought the packages for $800 and swallowed them to take with her for personal use, believing them to be cannabis. Likewise, she had bought three bottles in her suitcase from a supermarket, believing them to be ordinary wine (“I bought it as, you know, it’s the Easter holiday, so have to … [inaudible] down there because I – I’m not used to this – your wine or whatever, so I could just have a drink”). She had carried one in her bag and she said “I have two more in my suitcase and cheese and a suppligen and I bought at a supermarket” and also that, if she had known there was cocaine in the bottles she would not have taken them with her: “None of them because I have also two in my suitcase with cheese and …[inaudible] a suppligen.” Later on 3rd April 1999 when her suitcase was recovered from Heathrow Airport, the appellant identified it and acknowledged that she knew that it was illegal to import drugs. On search the suitcase was then found to contain a second bottle of wine containing cocaine together with traces of broken glass and dampness as well as the tin of cheese containing cocaine. In that interview the appellant suggested that someone might have introduced the cocaine, presumably by substituting other bottles and inserting the tin of cheese, for example when she went to the toilet for about five minutes at Kingston Airport or left her luggage in the boot of the taxi when she stopped for about 15-20 minutes at a McDonalds on the way to the airport. She accepted in this interview that she had known both Harding and Lamont, though not she said Marshall.
- At a plea and directions hearing on 21st July 1999 the appellant indicated that she was prepared to plead guilty on the basis that she was only involved in the illegal importation of the 20 packages which she had swallowed and on the basis that she believed them to be cannabis. The Crown was not prepared to accept that, and wanted the issue determined whether there had been a joint enterprise involving all the defendants, Howell, Marshall, Lamont and Harding, to import all 7.758 kgs. The judge directed that the indictment should be re-formulated, so as to contain one count relating to the whole 7.758 kgs (count 1), and further specific counts limited in the case of the appellant to the amounts that she had swallowed (112 gms) (count 2) and in the case of Marshall to the total amount on him (2.459 kgs) (count 3). This was done and on the next day the appellant and Marshall pleaded not guilty to count 1 and guilty in the case of the appellant to count 2 and in the case of Marshall to count 3. Lamont alone pleaded guilty at that stage to count 1. As we have said, Marshall changed his plea to guilty to count 1 on the second day of trial.
- At trial the appellant maintained her case that she had been ignorant of anything but the cannabis, which she said that she believed she had swallowed. With regard to that she accepted, as she had previously, that she had been involved in illegal importation, and the jury was made aware of her plea to count 2. With regard to the cheese, she said that she had been tired and confused and that the two references in her first interview to her having cheese had been meant to be to a small quantity of cheese which she had also had packaged in her handbag. She acknowledged now that she had told lies about how she came to be travelling and her knowledge of other members of the group. She had arranged her flights through Harding, and he had suggested that she give him her suitcase in advance, which she had done. On the way to the airport she had therefore called first at his place, but was told he had already left. A lady gave her her luggage, and she went on in the taxi, with a stop at the McDonalds, from there. Harding denied that he had ever had Howell’s suitcase. She admitted that in January 1999 she had made a previous trip to England, with a South African visa, the purpose of which was to have been, she said, to watch cricket in South Africa. She had however suffered a car accident in England and had not travelled further. That trip also had been arranged through Harding. The evidence showed that Marshall and Lamont had also travelled to England on that trip.
- The Crown adduced expert evidence that indicated “moderate support” for a link between the cocaine-filled packages swallowed by Howell and Marshall, between the bottles of cocaine contaminated wine carried by Howell, Marshall and Lamont, and between the cocaine-filled tins carried by Howell, Marshall and Lamont. Viewed overall, there was “strong support” for a link between all these importations. It would be unusual for there to be such similarity in three different cases.
Character direction
- The judge directed the jury as follows:
“You will bear in mind that both of the defendants are up to now of good character. Have no convictions for crime. Such people are, of course, less likely to commit offences than people of bad character. You will bear that in mind. Mr Harding is not only of good character, and a number of people have spoken well of him. He is, he says, positively against drugs and he put in evidence an anti-heroin poem which he distributed, he told you, to children and encourages them to learn, and giving monetary awards to their schools.
Miss Howell told you and told Customs that she was a user, although not a smoker of ganja, cannabis. Don’t hold that against her, even though you disapprove of cannabis, which she said is readily found in Jamaica. You may, of course, as her interrogators did, and Mr Milliken-Smith suggests, you may think that her account of swallowing packets of cannabis for her own use in Israel was ludicrous. But you may not. But whatever you think about the reason she gave for swallowing packets which she said she believed contained cannabis, and whatever evidential value you think that may have on this charge of complicity with others in cocaine smuggling, it would, would it not, be fair to treat cannabis as miles away from cocaine smuggling. Do not let her admitted use of cannabis tell against her.
On the other hand she does admit smuggling cannabis which she knew was illegal to bring in, and on her own confession she was willing to break the law, and she said the cannabis she thought she had was intended for her own use. Her evidence is that it was for her own use. It was not for money. It was not, she tells you, done in conjunction with any of the other travellers.”
- When summarising her evidence the judge also referred to the appellant Howell as “a woman who has no criminal convictions and is of hitherto good character”. He further reminded the jury that the appellant had at a previous hearing pleaded guilty, in relation to the drugs which she had swallowed, on the basis that she had thought that they were cannabis.
- No-one at trial objected to the terms of the judge’s direction on character. Nor was any supposed defect in the subject of any complaint in trial counsel’s original grounds of appeal perfected on 9th March 2000. The complaint now made was however contained in fresh grounds drafted by fresh counsel, Mr Nicholas Fooks, on 9th November 2000, and leave was, as we have said, granted in respect of it by the Full Court, on 9th February 2001.
- On behalf of the appellant, it is submitted that the judge, having acknowledged that the appellant should be treated as of good character was bound to give the full character direction; and that he should, in particular, have referred to the significance of good character in reinforcing credibility, in accordance with this court’s decision in R. v. Vye [1993] 1 WLR 471. On the Crown’s behalf, it is submitted that the judge was not obliged to give any or at all events the full character direction, and that he erred, if anything, in the appellant’s favour in saying what he did; and that, even if this is wrong, the jury’s verdict cannot be regarded as unsafe, bearing in mind the strength of the case against the appellant.
- R. v. Vye establishes that, in cases where a defendant is or is treated as being of good character, the judge should direct the jury to take account of such good character in relation to both credibility and propensity. Having stated the general rule, Lord Taylor CJ said that he recognised that it was for the trial judge in each case to decide “how he tailors his direction to the particular circumstances”. In this context, he reverted to an extreme situation, identified previously in his judgment, of the defendant, charged with murder, who admits manslaughter. He had earlier said that, although it might be thought that in such a case a direction on propensity would be little help to the jury, there might well be a residual argument that what was in issue was intent, in relation to which the defendant could contend that he had never shown any intent to use murderous violence before. Now he added that in such a case the judge might
“wish …. to stress the very limited help the jury may feel they can get from the absence of any propensity to violence in the defendant’s history. Provided that the judge indicates to the jury the two respects in which good character may be relevant, i.e. credibility and propensity, this court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case.”
- The issue when a defendant falls to be treated as of good character did not directly arise in R v. Vye, and fell to be more squarely addressed in R v. Aziz [1996] 1 AC 41, where the decision in R v. Vye was endorsed. The defendants in R v. Aziz had no previous convictions, but had in the case of A declined to give evidence and relied on statements in interview both to support his defence and attack his co-defendants. His co-defendants, Y and T, accepted misconduct outside the scope of the charges against them, in particular in one case making a false mortgage application and lying in interview and in the other not declaring income for tax purposes. The House of Lords upheld this court’s decision that the failure to give any good character direction in respect of A or to include any reference to propensity in the direction given in respect of Y and T were material misdirections, and said that it was for this court to decide whether to apply the proviso (which this court had decided “with hesitation, indeed with reluctance” that it would not do).
- Lord Steyn giving the sole full judgment said this:
“(d) What is good character?
The certified question, although phrased in very general terms, was intended to raise the problem whether a defendant without any previous convictions may "lose" his good character by reason of other criminal behaviour. It is a question which was not directly before the Court of Appeal in Vye [1993] 1 W.L.R. 471. It is a complex problem. It is also an area in which generalisations are hazardous. Acknowledging that a wide spectrum of cases must be kept in mind, the problem can be illustrated with a commonplace example. A middle-aged man is charged with theft from his employers. He has no previous convictions. But during the trial it emerges, through cross-examination on behalf of a co-defendant, that the defendant has made dishonest claims on insurance companies over a number of years. What directions about good character, if any, must the judge give?
Counsel for the Crown and the respondents made contradictory submissions as to the correct approach. Counsel for the Crown submitted that a trial judge has a general discretion to decide whether a defendant without previous convictions has lost the right to directions in accordance with Vye by reason of other criminal behaviour. Counsel for the respondents argued that a defendant without previous convictions is always entitled to directions in accordance with Vye but that the judge is entitled to ensure that a balanced picture is placed before the jury by adding such qualifications as seems to him appropriate.
A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced in thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists: Reg. v. H.[1994] Crim. L.R. 205 and Reg. v. Zoppola-Barraza [1994] Crim.L.R. 833.
That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye [1993] 1 W.L.R. 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them.
Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions.”
- In R .v H this court said that it was a matter for the judge’s discretion whether to give a good character direction when the defendant’s previous character was not absolutely good, citing a still earlier decision of this court in R. v. Timson and Hales [1993] Crime. LR 58. In R v. Zoppola-Barraza the charge was illegal importation of cocaine to the value of nearly £80,000. Z gave evidence in his defence that he had, on a number of occasions, smuggled gold and jewels into the country to avoid payment of duty and VAT. In a trial which took place prior to the decision in R v. Vye, the recorder treated Z as of good character, directed the jury that this was relevant to his credibility but did not mention propensity. This court held that, where Z had on a topic extremely closely related to the criminality alleged against him, reiterated repeatedly that he was party to an illegal smuggling operation, it would be an affront to common sense to treat him as entitled to the same direction as those who could truly be considered as being of good character.
- In her note to this case in the Criminal Law Review Professor Birch suggested that there was a need for a review of what constitutes good character, and referred to a number of authorities, particularly R v. Buzelak and Schiffer [1991] Crim LR 116, R v. Teasdale (1994) 99 CAR 80 and R. v. Challenger [1994] Crim LR 202. In Challenger the judge declined to give a good character direction on charges of possession of cannabis with intent to supply and possession of an offensive weapon, because the defendant had already pleaded guilty to simple possession and had prior convictions, albeit none for drug offences. In the course of its reasoning this court distinguished the circumstances before it from those in Teasdale, on the basis that Teasdale concerned the situation of a plea (to the offence of assault occasioning actual bodily harm) which would have to be vacated in the event of conviction on the charge of wounding with intent to cause grievous bodily harm, which was being tried. Professor Birch referred to that as a distinction on “rather unsatisfactory grounds”, a view with which we have to say that we sympathise. In R v. Durbin [1995] 2 CAR 84 (the only authority to which Mr Fooks initially sought to refer us at all), this court sought to explain and reconcile a number of previous decisions. In doing so, it confined R v. Zoppola-Barraza to circumstances in which the wrong-doing disclosed related to or at least embraced wrong-doing prior to the importation the subject of trial.
- All these decisions pre-date the House of Lords decision in R v. Aziz. It seems to us that the whole subject should now be approached in the first instance by reference to Lord Steyn’s speech in that case; and that much previous authority can be put aside as being of historical interest only. The general residual discretion for which Lord Steyn found support in the two previous decisions in R v. H and R. v. Zoppola-Barraza is explained in the last two paragraphs quoted above from his speech. It is not to be qualified or applied by making exhaustive attempts to fit all previous authority into a coherent mould, into which we have to say that we do not consider that it will fit.
- If (contrary to our view) it were necessary to analyse previous authority, we would agree with the approach taken to it following Aziz in Blackstone’s Criminal Practice 2001, paragraphs F13.8 and F13.10. Paragraph F13.8 reads:
“The House deduced the existence of the discretion from decisions such as Zoppola-Barraza [1994] Crim LR 833, where it was held unnecessary to give the normal directions in the case of Z, who was accused of being involved in the importation of cocaine and who had admitted smuggling gold and jewels into the country. In that case, however, only the propensity limb was withheld. The thrust of Aziz would appear to be that in cases of this kind the judge is entitled to withhold both limbs. See also Akram [1995] Crim LR 50, in which it was held that revelations about A’s use of heroin on previous occasions meant that he should not have been treated as of good character on charges related to the possession of diamorphine. Zoppola-Barraza was regarded with some suspicion in Durbin [1995] 2 Cr App R 84, where it was said to be a borderline case, and the view which prevailed was that while revelations of misconduct which forms part of the relevant background to the offence charged might cause the Vye directions to be qualified, they should not disentitle a defendant to the directions altogether. This seems inconsistent with Aziz unless a distinction is taken between misconduct which is similar to, but remote from, the offence charged, and misconduct which is part of the same transaction. While the revelation of related misconduct may be different in that it is an essential element in the defence case (as in Durbin, where D admitted involvement in smuggling other goods in order to support his defence that he was unaware that the particular consignment in issue was of drugs), the distinction does not appear material to the question whether the defendant can, in the light of the revelation, lay claim to good character. The situation is comparable to that where the defendant pleads guilty to another offence charged at trial (as to which see Challenger [1994] Crim LR 202 at F13.10).”
Paragraph F13.10 submits that the same rule should govern all cases involving guilty pleas and prefers the approach in Challenger to that in Teasdale.
- Against this background of principle, we turn to the judge’s summing up in the present case. The judge referred to both Harding and the appellant as of good character, and said in general terms that the jury should bear this in mind. Harding in fact had a number of positive character references. The judge explained the significance of good character in terms of propensity – “such people are less likely to commit offences than people of bad character”. He went on to refer to the appellant’s admission that she used smuggled cannabis. He observed that because use or even smuggling of cannabis was “miles away” from cocaine smuggling, the jury should not let any such use or smuggling tell against her. That was, as we see it, again said in the context of propensity. The judge then qualified what he had said by observing that the appellant had admitted that she knew that she had been acting illegally in smuggling cannabis and was thus on her own admission willing to break the law. He did not explain what the significance of this qualification was.
- It is not apparent that there was ever any discussion between counsel and the judge about the nature or terms of any character direction that might or might not be given. Certainly, no record of any has been located, and counsel who represented the Crown at trial has, we understand, no recollection of any. Looking at the judge’s direction, it occurred to us at one point as possible that he had, in relation to the appellant, deliberately structured his direction so as to include the propensity limb, because of the difference between smuggling cannabis (for whatever purpose) and smuggling cocaine, but had decided to exclude the credibility limb, because the offence of smuggling cannabis is one which involves dishonesty towards public authorities. We find it difficult to believe, however, that this could have been his reasoning, because of his failure to give the credibility limb of the character direction in relation to Harding. We are, as it seems to us, left with the probability that the judge did consider that a good character direction was appropriate, but failed by mistake to refer to its credibility limb.
- The Crown invited us to form our own opinion, to the effect that the judge could legitimately have taken the view that it made no sense to give a full character direction or the credibility limb of such a direction. If that was so, the Crown submits, the good character direction could not be regarded as fundamental to the safety of the verdict. As to this, it may be that the judge might, in the exercise of his discretion, have decided not to give a full good character direction. But it was a matter essentially for him. As we have said, we believe that, in probability, he must have considered that the right course was to give the usual character direction, with appropriate qualifications relating to the appellant, rather than deliberately to dispense with one limb. In the circumstances of this case we do not find it either necessary or appropriate to undertake the exercise which the Crown invited.
- In our view this is a clear case where, even accepting that the judge was obliged (under the principles in Vye and Aziz) to give an express credibility direction, his failure to do so cannot be regarded as affecting the safety of the verdict. We bear in mind the statement in this court in R v. Fulcher [1995] 2 CAR 251 that a proper direction as to character has some value, and is therefore capable of having some effect, in every case in which it is appropriate for such a direction to be given. But even under the former provisions governing appeals, there were circumstances, maybe rare, in which this court could apply the proviso despite the failure to give any or a full character direction. That was implicit in this court’s and the House of Lords’ reasoning in Aziz. An example of the application of the proviso is to be found in Timson and Hales (above). The test which this court now has to apply is whether the jury’s verdict is safe, and that in our view clearly requires us to consider whether the omission of the express credibility direction might in the particular circumstances have affected the outcome before the jury.
- We have no doubt that it could not have done. The evidence in this case was overwhelming. The appellant’s account regarding the packages she had ingested made no sense at all. Who would provide cocaine to her as cannabis, at the prices applicable to cannabis and for her own use abroad? Her account regarding the bottles was equally fanciful, and the jury no doubt noted the change in her story as between her interviews and trial, to introduce a greater possibility of independent interference. Her suggestion that someone had introduced the cheese into her suitcase faced similar difficulty. Who was going to do this and when? Again, the jury must have noted her change of account, from her original interview when she clearly acknowledged the presence of the cheese in her suitcase to her account after the recovery of her suitcase when she was about to be faced with the very cheese.
- Her denial of participation in any joint enterprise was thoroughly implausible in the light of the number of links and coincidences which it involved. She had travelled on a previous trip to London with all three of her co-defendants, and her explanation for that and the fact that it stopped in London (a failed attempt to watch cricket in South Africa) were, to say the least, unusual. The original suggested motivation for her present trip (her pastor’s suggestion that members of the congregation might like to attend a baptism in Israel) was equally surprising. Both that trip and the present were arranged by Harding. That she could or would choose to finance two such trips in one year was difficult to credit, as was the fact that she had no money on the second or claimed to have lost $500 from her pocket. She told lies regarding Harding when first seen by Customs. The expert evidence and common sense demonstrated an obvious link between the three defendants on whom or in whose luggage cocaine was found.
- Finally, we repeat that this was not a case where defence counsel at trial felt any discomfort about the judge’s approach either when the summing up was given or when considering it afterwards. It was only much later that, viewing the matter on paper, fresh counsel took the present point. While that can be no answer to any criticism that the judge failed to follow the principles in Vye and Aziz, it provides some comfort and further reinforcement in relation to the conclusion which we would anyway reach that this verdict was safe.
- We have no doubt therefore that this ground of appeal must fail.
Basis of conviction and special verdicts
- Mr Fooks’ point is a short one. He submits that under a simple count charging a defendant with illegal importation of a total quantity of cocaine (here 7.758 kgs) allegedly imported by various members of a group in various forms, a jury may convict if and so long as it concludes that the defendant is party to any part of that quantity. That may be so if nothing more is said. In this case, however, it was made clear to the jury that count 1 was only intended to apply and that the jury could only convict if satisfied that the appellant was party to illegal importation of all of the 7.758 kgs. The judge said this:
“I remind you that the case against Miss Howell is of complicity in all the cocaine. That is Mr Marshall’s and Mr Lamont’s, as well as that which was in the containers that she brought, and the packets, if she brought them.
You would not hold her responsible for complicity in the cocaine that Marshall and Lamont had, not merely because she was an associate, only if you come to the conclusion that they were confederates, and that there were other confederates as well perhaps.
She said she knew nothing about the cocaine. She travelled alone. She did not know about Marshall and Lamont’s journey. She did not know anything about their drugs, and of course if that is true or may be true then she is entitled to a verdict of not guilty. But if you come to the conclusion, and I am not of course saying that you should, but if you come to the conclusion that there were others in it under Mr Harding’s direction, also taking cocaine to Israel, the fact that she did not know who they were would not make any difference. She does not need to know all about the other members of the team, if there was a team, as opposed to the unlikely event, if you think it was unlikely, of her and the other two smugglers, or one of them being in it together with Mr Harding, if indeed he was in it. As I say, I am not going over all those associations and relationships again. It is for you to decide whether Mr Harding was in on this cocaine, travelling as Mr Milliken-Smith puts it, and whether Miss Howell was in on it, or whether she was admittedly smuggling drugs purely independently so far as that is cannabis. She says she was smuggling cannabis independently and was not in with any of the others in any of their smuggling.
If in either case there is a reasonable doubt the defendant in whose case there is a reasonable doubt is entitled to a verdict of not guilty.”
- Counsel for the Crown informs us that he recalls that, prior to speeches, the question whether any special verdicts should be taken in respect of the appellant was discussed between counsel and the judge, and that it was decided that this would be inappropriate. In the light of the judge’s direction, that decision was understandable. The direction only left it open to the jury to convict the appellant if satisfied about her involvement in all aspects of the importation, in other words in the drugs swallowed by Marshall and Lamont as well as herself, in the cheese carried with all three of them and in the bottles carried with Marshall and herself.
- Mr Fooks at this point seeks to invoke a risk that the jury may have ignored the judge’s direction and may have convicted the appellant in respect of the whole importation, because it was satisfied that her involvement in the illegal importation of drugs on 3rd April 1999 was greater than she admitted, but not satisfied that it was as great as the Crown alleged. He suggests that it may for example have been satisfied that she knew about the cocaine in the bottles and/or cheese with her, but not satisfied that she knew about Marshall’s and/or Lamont’s illegal importations. In other words, since the jury was offered no intermediate possibility, it may have preferred or been tempted into a conviction in respect of the whole importation, rather than leaving it to the court to sentence her for the minor quantity of 112 gms in respect of which she had already pleaded guilty. As a theoretical argument, we of course see Mr Fooks’ submission. But we regard it as no more than theoretical on the facts of this case. First, the judge’s direction was clear and we cannot assume that the jury ignored it. Secondly, we see no realistic prospect of any jury taking the intermediate view of the facts that Mr Fooks was suggesting. If a jury concluded that the appellant’s account was untruthful, that she was not the victim of a dupe by others and that she was knowingly involved in the illegal importation of some drugs which she knew to be cocaine, we cannot conceive that any jury would then have drawn distinctions between the different items she carried with her or between her and Marshall and Lamont, travelling with her and carrying similar linked items. Thirdly, it was no doubt for these reasons that, after discussion between counsel and the judge, it was concluded that no special verdict was necessary, and the judge directed the jury as he did.
Howell’s sentence
- The points raised by Mr Fooks in relation to the sentence of 15 years imprisonment passed on Howell depend, as we have already indicated, upon similar suggestions about uncertainty of the basis of the jury’s verdict to those which we have just considered in the context of the second ground relating to conviction. It is suggested that the judge in sentencing faced a predicament and/or erred in sentencing on the basis that the appellant was involved with respect to the full 7.758 kgs. For the reasons we have given in relation to the appeal against conviction, there is nothing in this point. The appellant was convicted in respect of the whole 7.758 kgs and the judge sentenced on a clear and correct basis. It is not suggested, nor could it be, that there was on this basis anything excessive about a 15 year sentence, and this renewed application for leave in respect of sentence therefore fails.
Lamont’s sentence
- We turn to Lamont’s sentence of 12 years, on a plea in respect of the full 7.758 kgs which he entered at the earliest opportunity when arraigned on 22nd July 1999. His complaint is that his sentence was the same as that passed on Marshall, when he only pleaded on 22nd July 1999 to the 2.459 kgs that he had inside or with him and who only entered a plea in respect of the full 7.758 kgs on the second day of the trial (11th November 1999). The judge said when sentencing that he would treat Lamont and Marshall as having both “pleaded on arraignment, although that is not quite right, but it is near enough”. Mr Van Stone for Lamont submits that the judge’s approach down-values the significance of an early plea. In reality, it may have given Marshall disproportionately favourable treatment, although we observe that the discount to both allowed by comparison with the sentence on the appellant appears to have been no more than 20%.
- Whichever way the matter is viewed, it appears to us that there is some force in Mr Van Stone’s submission. That disparity giving rise to a legitimate belief that something has gone wrong in the sentencing process may arise in the mind of a right-thinking observer in the case of similar sentences passed on differently circumstanced defendants is clear. That it may arise, although the sentence passed would not otherwise be in any way excessive is also clear: see e.g. R v. Fawcett (1983) 5 CAR 158. We bear in mind that in this case Marshall did plead on 22nd July 1999 to a substantial quantity of cocaine, but he was not, at that stage, prepared to accept involvement in a joint enterprise. No doubt he saw that this would involve a still heavier sentence. In these circumstances, we do think that Lamont’s early plea in respect of the whole joint enterprise did deserve to be marked by some differentiation in the respective sentences. This court has repeatedly stressed the importance to be attached to an early plea. We do not consider that the sentence passed on Lamont was in itself excessive, but purely in order to mark the different times at which full pleas were entered by him and Marshall we consider that Lamont’s sentence should be reduced by one year, so as to become 11 years. To that extent, Lamont’s appeal in respect of sentence succeeds.
