Jersey Unreported Judgments

2001/22

5 pages

COURT OF APPEAL.

 

23^rd January, 2001

 

Before:	Sir John Nutting, Bt., Q.C., President;
	P.D. Smith, Esq., Q.C., and; M.G. Tugendhat, Esq., Q.C..

 

Adrian Jenkins

-v-

The Attorney General

 

Application for leave to appeal by Adrian Jenkins against a total sentence of 3½ years' imprisonment, passed on 11^th October, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 15^th September, 2000, following guilty pleas to:

 

2 counts of:           possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:

                    count 1: cannabis resin;

                    count 3: cannabis resin, on which count a sentence of 1 month's imprisonment was passed;

1 count of: possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

                    count 2: cannabis resin, on which count a sentence of 3½ years' imprisonment, concurrent, was passed;

1 count of: taking and driving away a motor vehicle without the owner's consent, contrary to Article 28(1) of the Road Traffic (Jersey) Law, 1956, as amended (count 4) , on which count a sentence of 1 month's imprisonment, concurrent, with 12 months' disqualification from driving was passed..

[count 1 not proceeded with; counts 5 and 6 of the indictment relate to a co-accused who has not appealed].

 

Leave to appeal was refused by the Bailiff on 20^th November, 2000; and on 22^nd November, 2000, the appellant exercised his right under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew his application to the plenary Court.

 

 

 

Advocate C.M. Fogarty for the Appellant;

Mrs. S. Sharpe, Crown Advocate.

 

 

JUDGMENT.

 

SMITH JA:

 

Although we give leave to appeal  because there are arguable points in this case, I think I should make it clear before I read the judgment of the Court that we have not allowed the appeal.

 

1.     On the 11^th October 2000 the Appellant was sentenced by the Superior Number of the Royal Court to three and a half years' imprisonment on account of possession of 3.47 kilos of cannabis resin with intent to supply contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978 to which he pleaded guilty.   At the same time the Appellant was also sentenced for two other offences which are not the subject of this application for leave to appeal.

 

2.     Before us Advocate C. M. Fogarty appeared for the Appellant and Mrs S. Sharpe, Crown Advocate, appeared for the Crown.  We are indebted to Counsel for their submissions.

 

3.     The Appellant and Anthony Edward Croxton were both charged in one indictment with comparable offences relating to the cannabis resin.  After his arrest and after initially denying any wrong doing, Croxton admitted to the police that he had come to Jersey to distribute the cannabis resin which was already in the Island.  He said he had been handed the cannabis at a campsite and that subsequently he met Jenkins in a public house in St Helier.  They then left the pub and got into a car driven by the Appellant.  Once in the car Croxton received £10,200 in cash from Jenkins and Croxton placed the cannabis in the front passenger footwell of the car.  After driving for a distance Croxton dismounted and made his way to the airport where he was intercepted by the police.

 

4.     Meanwhile the vehicle driven by the Appellant had been stopped by police officers.  In it they found the cannabis in a black plastic bag.  The Appellant was in possession of a bag containing £1,300 in £50 notes.  At his home address police found £2,500 in cash and some pieces of cannabis resin. 

 

5.     The cannabis resin found in the car had a wholesale value of £15,120 and a street value of £20,160.  Croxton was sentenced to 2½ years' imprisonment.

 

6.      The essential point made in this application is that there is no justification for imposing a heavier sentence on the Appellant than on Croxton.  This proposition necessitates a comparison between the roles played by and the circumstances of each accused.

 

7.      The Royal Court established 4½ years as the starting point in each case.  Dealing with the Appellant, the Royal Court recognised his guilty plea but observed that "this was largely inevitable in the circumstances of the case."  It referred to the Appellant's lack of co-operation with the police and to the fact that the Appellant had no previous convictions for drug dealing.  (He has minor previous convictions including one for possession for a Class B drug dealt with at the Magistrate's Court by way of a fine.)  

 

8.      By contrast the Royal Court, while observing that Croxton's guilty plea was also largely inevitable, referred to his frankness to police on the day of his apprehension and to his entering a guilty plea at the first opportunity at the Magistrate's Court.  On this basis it concluded that Croxton was entitled to more credit for his guilty plea than the Appellant was for his.  The Royal Court recognised that Croxton had a previous conviction for drug dealing.  He was imprisoned for 5½ years in June 1993 by the Royal Court for possession with intent to supply cocaine.  It held that the two factors, i.e. his co-operation and early plea and his very serious previous conviction, balanced each other out. 

 

9.      Furthermore the Royal Court considered that an important mitigating factor available to Croxton was that he had named his supplier and had admitted to doing so in open court.  Because of this the Royal Court expressly made a deduction of one year - i.e. the difference in the periods of imprisonment imposed on the Appellant and on Croxton.

 

10.  Advocate Fogarty criticised the Royal Court's approach by arguing that insufficient regard was had to what she described as the "great disparity" between the previous convictions of the two men.  Moreover, Miss Fogarty pointed to the fact that Croxton initially misled the police and that the Appellant merely exercised, on legal advice, his right to remain silent.  Again, she drew attention to the fact that in reserving his plea until the second appearance the Appellant was simply following the legal advice given to him by the duty advocate at the Magistrate's Court.

 

11. We cannot accept Miss Fogarty's criticism insofar as she contends that the Royal Court penalised the Appellant for acting on legal advice.  In our view the Appellant was not penalised; but Croxton was properly given credit for his co-operation and early plea.  As to whether these factors could properly be said to balance out his previous drug dealing conviction, we feel constrained to say that had we comprised the sentencing court we might well not have reached the same conclusion as did the Royal Court.  However we were not the sentencing court and Croxton is not before us.  We do not consider that the view of these factors taken by the Royal Court points to a breach of principle in the Appellant's case or to a manifestly excessive sentence having been imposed on him.

 

12. Advocate Fogarty also urged upon us that the Royal Court had insufficient regard for what she described as "the difference in the nature of involvement of the two accused."  In particular, she criticised the remarks made by Crown Counsel in opening the case in the Royal Court to the effect that the Appellant must have been near the wholesaler of the drugs and that it must be assumed that the Appellant was instructed by the same person as Croxton.  It is clear that the Royal Court treated the roles of Croxton and the Appellant as roughly equivalent.  This was a perfectly permissible approach and not at all unfair to the Appellant.  The wholesaler must have in some manner communicated directly or indirectly with the Appellant.  The Appellant has not even to this day provided a scintilla of information which might displace the otherwise inevitable inference that he was just as culpable as Croxton.

 

13. Advocate Fogarty argued that the discount afforded to Croxton for naming his supplier and being prepared to admit that he had so in open court operated unfairly in relation to the Appellant.  This was because as the Appellant's supplier was Croxton and his role was obviously known to the authorities the Appellant was not in a position to take the same steps and obtain the benefit of the discount.

 

14. We consider this submission to be misconceived.  Each accused was entitled to have his case considered on its own merits.  Croxton had the strong mitigating factor in question available to him; the Appellant had not.  There is nothing unfair in the fact that Croxton was given credit for this factor and the discount applied to it was, we believe, within the range the Royal Court was entitled to allow.  We would add that had the Appellant chosen to make full, or even any, disclosure to the police this would inevitably have been taken into account by the Royal Court in the course of its deliberations.

 

15. As we have indicated, Miss Fogarty's eloquent submission on behalf of the Appellant really came down to the proposition that the difference of one year between the sentences made it appear to the Appellant that he had been treated unjustly particularly in the light of Croxton's very serious previous conviction.  We do not consider this to be a ground on which we could or would have interfered with the Appellant's sentence.  On the other hand, had we concluded that right thinking citizens apprised of all of the facts of this case would have thought the Appellant fairly undealt with, we would have corrected that unfairness.  But we have not come to that conclusion.  Accordingly, we dismiss this appeal.

 

 

 

 

 

 

Authorities.

 

A & B (1999) Cr. App. R. (S) 52.

 

AG-v-Trinidade (20^th July, 2000) Jersey Unreported.

 

AG-v-Fogg (1990) JLR 206.