BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Welsh v AG [2002] JCA 72 (04 April 2002) URL: http://www.bailii.org/je/cases/UR/2002/2002_72.html Cite as: [2002] JCA 72 |
||
[New search] [Help]
2002/72
COURT OF APPEAL
4th April, 2002
|
Before: |
R. C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey. |
John Alan Welsh
-v-
The Attorney General
Application for an extension of time within which to apply for leave to appeal against a total sentence of 12½ years' imprisonment passed on 3rd February, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded in custody by the Inferior Number on 5th November, 1999, following a guilty plea to:
|
3 counts of: |
Possession of a controlled drug with intent to supply contrary to Article 6 (2) of the Misuse of Drugs (Jersey) Law 1978: Count 1: diamorphine: on which count a sentence of 12 ½ years' imprisonment was passed; Count 3: cocaine: on which count a sentence of 10 years' imprisonment, concurrent, was passed. Count 5: cannabis resin: on which count a sentence of 3 years' imprisonment, concurrent, was passed; |
|
1 count of: |
Possession of a controlled drug contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law (1978): Count 7: cannabis resin: on which count a sentence of nine months' imprisonment, concurrent, was passed. |
The application for an extension of time and for leave to appeal were placed directly before the plenary, without first being considered by a Single Judge.
[On 5th November, 1999, the Royal Court, at the request of the Attorney General and with the consent of the accused's advocate, directed that the accused should plead only to counts 1, 3, 5, and 7 of the indictment laid against him, and that proceedings in respect of counts 2, 4 and 6 (possession of diamorphine, cocaine and cannabis resin, respectively, contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law (1978) be stayed until further Order.]
Advocate Mrs. S. A. Pearmain for the Appellant.
Advocate A.J. Belhomme on behalf of the Attorney General.
JUDGMENT
GLOSTER JA:
1. This is the judgment of the Court in relation to an application by John Alan Welsh ("the Applicant") for leave to appeal against sentence out of time, and, if leave is granted, in relation to his appeal.
2. On 5 November 1999 the Applicant was indicted before the Inferior Number of the Royal Court and pleaded guilty to three counts of possession of a controlled drug with intent to supply contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978 ("the 1978 Law"): namely Count 1: diamorphine; Count 3: cocaine; and Count 5: cannabis resin. He also pleaded guilty to one count of possession of a controlled drug contrary to Article 6(1) of the 1978 Law, namely Count 7: cannabis resin.
3. On the same date, the Court, at the request of the Attorney General and with the consent of the Applicant's advocate, directed that the Applicant should plead to counts 1, 3, 5, and 7 only, and that proceedings in respect of counts 2, 4, and 6 (possession of diamorphine, cocaine, and cannabis resin, respectively, contrary to Article 6(1) of the 1978 Law be stayed until further Order.
4. On 3 February 2000 the Applicant was sentenced by the Superior Number of the Royal Court (F.C. Hamon, Esq., Deputy Bailiff, and Jurats Myles, de Veulle, Le Ruez, Rumfitt, Le Brocq, Tibbo, Bullen, Le Breton, Georgelin and Allo) to which the Applicant had been remanded by the Inferior Number. On Count 1 he was sentenced to 12½ years' imprisonment, on Count 3 to 10 years' imprisonment, on Count 5 to 3 years' imprisonment, and on Count 7 to 3 months' imprisonment, all such terms of imprisonment to run concurrently.
5. As the Royal Court stated in its judgment, this was, by local standards, a massive seizure. The relevant facts relating to the offence may be shortly summarised as follows.
(i) On 31 May 1999, Drugs Squad Officers entered the 'Wet and Wild' beach concession at Longbeach, Grouville pursuant to a warrant issued under the 1978 Law.
(ii) The concession was owned and operated by a Miss Martine Falle, who for some years had had a relationship with the Applicant and had a son with him, who, at the material time, was some two and a half years old. Although the relationship at the time of the raid was strained, so that they no longer lived together, the Applicant still helped out at the concession, the keys were available to him and he had unlimited access to it.
(iii) At the time of the raid, the Applicant, Miss Falle and the couple's infant son were all present at the concession. The officers asked whether there were controlled drugs on the premises and both the Applicant and Miss Falle replied that there were not. The officers then searched the premises in the presence of the Applicant. While searching the storeroom, one of the officers found three plastic carrier bags inside a metal catering urn, high on a shelf above a chest freezer.
(iv) Inside one of the carrier bags was a package bound in brown masking tape, which was subsequently found to contain 845.7grams of heroin, with a street value of £253,000, and a wholesale value of between £126,000 and £152,000. Its purity was 8%, as opposed to the police national average of 34%. That meant that it would have been unlikely to have been "bulked out" by the addition of a neutral substance further to increase the quantity, and thus the profit. At the time of sentencing, this was the largest seizure of heroin in Jersey to date.
(v) Inside a second carrier bag was one slab of cannabis resin, three smaller pieces of cannabis resin and one slab of compressed white powder, wrapped in brown masking tape. The compressed white powder was subsequently found to be cocaine, with a weight of 351grams. Its purity was 82%, well above the police national average of 62%. The cocaine had a street value of £28,136, and a wholesale value of £22,320. Likewise, at the time of sentencing, this was the largest seizure of cocaine in Jersey to date. The Applicant's fingerprints were found on items inside this bag, namely on the clear wrapper of the slab of cannabis resin and on the clear wrapper of the slab of cocaine.
(vi) Inside a third bag were two further slabs of cannabis resin in a package. The combined weight of the cannabis resin in the two bags was 1,768 grams, with a street value of £9,900, and a wholesale value of £6,900. There was sufficient cannabis to supply some 500 people.
(vii) Thus the total combined street value of the drugs seized was some £291,000, and the wholesale value was between £150,000 and £181,000.
(viii) The Applicant was arrested and cautioned and made no immediate reply. When Miss Falle was also arrested and cautioned, the Applicant intervened to say that Miss Falle had nothing to do with the drugs and knew nothing about them. No charges were subsequently brought against Miss Falle.
(ix) Early on the evening of that same day, 31 May 1999, the Applicant, having been taken into custody, was interviewed under caution. During the course of that interview, the Applicant said that the drugs which had been seized did not belong to him, but that he was merely "looking after" them and was to return them to their owner. He said that he had received them from the owner at 10.30 p.m. the previous evening, having received a telephone call asking him to hide the drugs overnight. He had agreed, gone to meet the owner in town, taken possession of the drugs, and hidden them at the beach concession. He was to return them to the owner the next day. The Applicant said that, had the police arrived five minutes later, the drugs would no longer have been there, because he would already have handed them back to the owner. He said that the owner had been in the near vicinity at the time of the search and arrest, and had actually walked past while the search was proceeding. When he was asked, during the course of the interview, how much he was getting paid to look after the drugs, the Applicant replied "A figure wasn't finalised. It was like we'll sort it out when it's sorted". Subsequently, when once again asked how much he was expecting to get by way of payment, he replied "I wouldn't know". Later in the interview, the Applicant said that he was under the impression that he would get a "nine bar" of cannabis by way of reward and, as a user of cannabis, that was "one of the main reasons" he looked after the drugs. During the course of the interview the Applicant declined to name the owner of the drugs.
(x) The Applicant further stated that, throughout his custody of the drugs, they had been in opaque wrapping and he believed, because he had been told so by the owner, that he was looking after 5 kilos of cannabis. (This later changed to "5 - 7 kilos"). However, he also said that when he had seen the packages removed from the carrier bags during the police search, he had "had a sneaky feeling that it wasn't just pot, when I'd seen the round bag. Because I know pot doesn't come in packets like that." At his interview the Applicant said that he had taken receipt of the carrier bags and had not touched any of the packages inside them. It is the case, however, as stated above, that the Applicant's fingerprints were found on two individual packages within one of the carrier bags containing cocaine and cannabis.
(xi) At the hearing before the Royal Court (although this was not stated by the Applicant at his interview), Advocate Sowden, representing the Applicant, was instructed to say that for a time, under cover of darkness, he had put this very valuable stash of drugs in a public litter bin, but that he moved it later into the concession. It was apparently in the darkness, according to Miss Sowden's instructions, that his hand had slipped inadvertently on to the packages while helping himself to his anticipated reward.
(xii) On 27 July 1999 the Applicant pleaded guilty to the charges of possession with intent to supply the drugs seized at the concession. There was a paper committal on 24 August 1999 and, as stated above, he was formally indicted on 5 November 1999.
6. It is also necessary to set out certain facts relating to the provision of information by the Applicant to the police during the time that the former was on remand. A day or so before the sentencing hearing, the Applicant told a senior police officer that he was prepared to name his supplier. At a meeting at prison at which Advocate Sowden was present, the Applicant named his supplier as a man, who has been referred to in these proceedings as "Bill" and otherwise provided information as to his identity. In fact, although this was apparently unknown to the Applicant at the time he supplied his information, shortly before the raid at the concession, "Bill" had been stopped by the police on a routine check and had been found to have a small quantity of drugs in his possession. "Bill" said that, if he was given immunity, he would lead the police to the "biggest haul" they had ever made in Jersey. As a result of the information "Bill" gave, the raid took place. The police would have had no knowledge of the presence of the drugs at the concession, had it not been for the information given to them by "Bill". On the advice of the Attorney-General, "Bill" was given immunity and was in fact abroad at the time the Applicant identified him. The Applicant was not told by the police at the time that they already knew of "Bill's" involvement.
7. On 2 February 2000, the Deputy Bailiff was informed on an ex parte basis by Crown Advocate Whelan of what had occurred. In a letter to the Assistant Judicial Greffier dated 8 February 2000, the Deputy Bailiff wrote as follows:
"As I said, by this time, Bill was on another continent and there is to my mind every doubt that Bill was the supplier. I say this because in his Q and A (the extract appears in the statement of facts), Welsh told the Police that had they come five minutes later, his supplier would have been arrested, but he hadwalked past the kiosk. Why would Bill, in the knowledge that he had alerted the police to these drugs, be walking past the kiosk at the time the raid took place? My suspicion is that Welsh "took advice" from one of the drugs barons at the prison and was told that he could get a discount and there was no harm in naming Bill.
None of this information was supplied to the jurats when they met at the Crown's request with counsel for both sides prior to sentencing. Advocate Whelan merely said that Welsh had named a supplier but this had not led to an arrest. Advocate Sowden, for the defence, said that she felt her client should have a discount but agreed that the information supplied had not been particularly valuable.
There was no question of this matter being admitted in open court and the Crown which had moved for 14 years and six months merely moved for 12 years and 6 months the principal ground. The Jurats followed the conclusion of the Crown."
8. It appears from letters which were shown to this Court and to the Royal Court, that not only was the Deputy Bailiff sceptical about whether "Bill" was indeed the supplier, but so were the police. In any event, as the Deputy Bailiff stated in his letter, Advocate Sowden (who did not know about the immunity afforded to "Bill") appears to have accepted that the information was not particularly valuable and had not led to an arrest, nor does she appear to have contended for anything more than a two year discount in respect of its provision. We should also mention that during the course of argument Advocate Pearmain informed us, on instructions, that the Applicant said that the person whom the Applicant referred to in his interview as the owner of the drugs, who had apparently walked by the concession at the time of the raid, was not "Bill" at all, but another man involved with the drugs. She said that the Applicant had not chosen to impart this information about the second man to the police at the time he gave the information about "Bill", as he had not been asked about anyone else's involvement.
9. However whatever doubt there may be about the value of the information supplied, what is clear is first, that, in presenting its conclusions to the Royal Court on 3 February 2000, the Crown moved for a sentence of 12 years and 6 months imprisonment on Count 1 (rather than the original 14 years and 6 months which appeared in the Crown's summary, which had been lodged before the Applicant had provided his information) specifically in order to reflect that the Applicant had provided the information. Although, for obvious reasons (i.e. the perceived need for confidentiality of the fact that the Applicant had supplied the information and the protection of "Bill's" position as an informant), no express mention was made of the provision of information in the judgment of the Royal Court, it is clear from the Court's adoption of the Crown's conclusions that it effectively allowed two years reduction in the sentence, to reflect the fact that the Applicant had provided the information to the police.
10. Procedurally, the first application before this Court is for leave to appeal out of time. Pursuant to Article 30 of the Court of Appeal (Jersey) Law, 1961, time for lodging an appeal against sentence in this case expired on 13 February 2000. It was not until 26 October 2001 that notice of appeal was in fact lodged in this case, approximately one year, eight months out of time. Factually there is no dispute between Advocate Belhomme, who appeared in this Court on behalf of the Crown, and Advocate Pearmain, that the reasons for the delay (which appear to be attributable first to a mislaying of the relevant paper work within HM Prison La Moye, and secondly to some delay on the part of his lawyers) are not to be laid at the door of the Applicant. Advocate Belhomme also properly accepts that, although
particularly where the delay is extensive, (see per the Court of Appeal of Jersey (Superior Number) in A-G v Fossey (1982) JJ 223 at 224), it is proper for the Court, in exercising its discretion as to whether to grant an extension, to have regard to the likelihood of the appeal against sentence succeeding; ibid.
11. Accordingly, in all the circumstances, and in particular the Crown's acceptance that the delay appears not to have been the fault of the Applicant, this Court turns to consider the merits of the Applicant's appeal against sentence, both for the purpose of the exercise of its discretion in relation to the grant of leave, and for the purpose of the consideration of the merits of the appeal.
12. It was common ground that this Court
see A-G v Sampson (1965) JJ 495, at 499; and that it is the practice of this Court
see A-G v Gorvel (1973) JJ 2503 at 2511.
13. In support of her contention that the Royal Court's sentence was manifestly excessive, Advocate Pearmain made a number of submissions. First she submitted that the starting point of 16 years taken by the Royal Court was too high. She said that the Royal Court attached too much weight to the quantity of drugs involved and failed to attach sufficient weight to the fact that the Applicant's involvement was limited. She submitted that he was only acting as a minder of the drugs overnight and was only being entrusted with the drugs for a very short period of time. She said that the fact that the Applicant was not a newcomer to the drugs scene, and had previous convictions in respect of drugs, was not evidence of the part that the Applicant played in the overall supply of the drugs. She further submitted that the Royal Court, in having regard to the quantity of drugs involved, had wrongly failed to take into account the fact that the purity of the heroin was only 8%.
14. In our judgment, there is no substance in these criticisms and the Royal Court was perfectly entitled, in accordance with the guidelines given by this Court in Campbell, Molloy, and Mackenzie -v- AG (1995) JLR 136 CofA, to take a starting point of 16 years. Likewise, the Royal Court's approach was consistent with the subsequent amplification of those guidelines, as given by this Court in Rimmer, Lusk and Bade v A-G (19 July 2001) Jersey Unreported; [2001/148]. Given the quantity of drugs involved and the role played by the Applicant, a starting point outside the usual band of 7-12 years was entirely justified and in accordance with the guidelines. In so far as it may be of assistance to look at other cases - and it must always be remembered that there is a limited utility in so doing, as the circumstances may be very different - the cases of AG -v- Perchard & McConnachie (22 November, 1995) Jersey Unreported; AG -v- Le Tarouilly (2nd December, 1996) Jersey Unreported; AG -v- Dowse and Heys (20th January, 1997) Jersey Unreported, and AG -v- Lunt (22nd June, 1998) Jersey Unreported; [1998/130], provide reference points which support a correct starting point for a crime of this magnitude as being 16 years.
15. Moreover, in our judgment, the Royal Court was correct to conclude that the role of a minder, such as the Applicant, may be one of major significance in the process by which drugs are disseminated. A minder can play a fundamental part in ensuring that dangerous drugs reach their intended market. We agree with the approach taken by the English Court of Appeal in Harris [1998] 1 Cr.App.R.(S) 38, which was cited by the Royal Court at page 3 of its judgment. In Harris the Court of Appeal said this (at page 39):
16. Here, in our judgment, the surrounding circumstances strongly supported the inference that the Applicant's involvement in the dissemination of some £291,000 worth of highly dangerous drugs on to the streets of this Island was a serious one. Unless his supplier had known that he was able to trust the Applicant with the responsibility of looking after drugs of this large quantity and value, and to rely upon him to comply with his subsequent instructions as to disposal, it is inconceivable that the supplier would have left the drugs in the care of the Applicant. In our view, the Royal Court's conclusion that the Applicant played an important role in assisting in the dissemination of these drugs cannot be faulted.
17. Likewise, we agree with the approach taken by the Royal Court that neither the Applicant's asserted erroneous belief as to the type of drugs he was minding, (which, on any view, was questionable, given the finger-print evidence), nor the purity of the heroin, should, in the circumstances of this case, attract mitigation. Nor, contrary to Advocate Pearmain's submissions, does either factor, in our judgment, justify a lower starting point. In Campbell this Court said at page 145:
See also A-G v Bray (27 January, 2000) Jersey Unreported CofA; (2000) JLR N.7. Similarly, in Rimmer (supra) this Court said at paragraph 31 of its judgment:
18. Accordingly we reject Advocate Pearmain's arguments to the effect that the Royal Court adopted the wrong starting point. In our judgment, the Royal Court cannot be criticised in the circumstances of this case for applying a starting point of 16 years, before turning to take into account other matters.
19. Advocate Pearmain's second principal submission was that insufficient account was taken by the Royal Court of the Applicant's guilty plea. The thrust of this submission was that, in normal circumstances, a credit of one third is generally given in respect of a guilty plea; here, on the other hand, when account was taken of the two years given in respect of the information provided by the Applicant to the police, it can be seen that only eighteen months in total was allowed by way of deduction to reflect the guilty plea and all other mitigation factors.
20. In our judgment, there is real force in this submission. Advocate Belhomme sought to argue that, because the Applicant was arrested in possession of the drugs, he had little option but to plead guilty. We accept that the appropriate discount to be given for a plea of guilty will depend upon the facts of each case; see Campbell at page 146. We also accept that the usual discount of one third for a guilty plea may well not be appropriate if the accused has no realistic choice but to plead guilty (such as, for example, in cases such as AG v Plowright (13 February 1996), Jersey Unreported, where the accused is caught with drugs internally concealed). However, in the circumstances of this case, in our judgment, there was a real possibility open to the Applicant of contesting the charges against him. He could, for example, have alleged that Miss Falle, or a friend of hers, had been the person who had agreed with the supplier to conceal the drugs at the concession, and had taken delivery of, and hidden them; that he had, only a short time before the raid, discovered the carrier bags by accident, which was the explanation for his fingerprints on two of the packages; and that he had, for example, just had a furious argument with Miss Falle, in an unsuccessful attempt to persuade her to hand over the packages to the police. It is irrelevant what the chances of such a defence might have been. It is in the interests of the administration of criminal justice that, where appropriate, accuseds should be encouraged to plead guilty, so as to avoid not only the costs of, and the involvement of police manpower in, contested trials, but also to spare witnesses the anxiety and strain of giving evidence. In particular, it is in the public interest that accuseds should be encouraged to accept responsibility for their crimes at the earliest opportunity, and discouraged from making unfounded allegations of criminal responsibility against others, in attempts to exonerate themselves, which require resolution in contested criminal proceedings. These factors do not of course mean that in all cases the full one third discount is appropriate.
21. We agree with Advocate Pearmain that the Royal Court failed to give an adequate allowance for the Applicant's guilty plea. Whether one takes a starting point of sixteen years, or one of fourteen years, as reduced by the two years allowed in respect of the provision of information, on any basis a total of eighteen months was, in our view, too little a discount to reflect the Applicant's guilty plea and the other available mitigation factors, namely, the relative youth of the defendant (he was 33 at the time), his desire not to implicate Miss Falle in any way, his traumatic childhood and family history and his remorse. Accordingly, we consider that, for this reason, the sentence of twelve and a half years imposed by the Royal Court was excessive. Before stating what, in our view, is the appropriate sentence, we consider the remaining arguments put forward on behalf of the Applicant.
22. Finally, Advocate Pearmain submitted that the Royal Court failed to give sufficient allowance for the information provided by the Applicant to the police about "Bill". We reject this submission. It appears to us that the two years that was clearly, albeit implicitly, allowed by the Royal Court in respect of this information, was an adequate discount in all the circumstances. There is nothing in the point that, because the Applicant and his advocate were not aware, at the time of his sentencing, of the fact that immunity had been granted, that in some way justifies a larger discount. Nor (although this point was not pressed by Advocate Pearmain) do we accept that the immunity afforded to "Bill" involves any unfairness to the Applicant, such as would result in a reduction of his sentence. We should say, in this context, that we have carefully considered the points made in the Applicant's letter to this Court dated 25 March 2002 and, where appropriate, have taken them into account in reaching our decision.
23. In her written contentions Advocate Pearmain contended for a total sentence of 9 years from a starting point of 14. In her oral submissions in reply she submitted that a total of approximately 8 years was appropriate. In our judgment, taking into account all the circumstances, the appropriate total sentence of imprisonment in this case is 10 and a half years. We reach this conclusion as follows; we take 16 years as the appropriate starting point; we then reduce that starting point by 2 years to reflect the Applicant's provision of information, which was the manner in which the Royal Court, adopting the Crown's conclusions, correctly in our view approached the matter below; then we take off a further 3 and a half years, which is 25%, to reflect the Applicant's guilty plea and the other available mitigation which we have identified. We do not consider that it is appropriate to give the full one third discount for the guilty plea, since, in the light of the circumstances in which the drugs were found, the Applicant's initial denials of all knowledge of the drugs and the fingerprint evidence, there is considerable force in the Crown's point that it would have been difficult for him plausibly to have defended the charges. Likewise, we do not consider that the other mitigation factors justify any further reduction in sentence beyond the 25%, in what, on any basis, were very serious charges of possession with intent to supply.
24. Accordingly, we grant leave to appeal against sentence out of time; we allow the appeal in relation to Counts 1 and 3; we reduce the term of imprisonment on Count 1 to ten and a half years and that on Count 3 to eight years, making a total of ten and a half years concurrent. We leave the sentence on Count 5 untouched.
