Jersey Unreported Judgments

[2003]JCA135

ROYAL COURT

(Superior Number)

 

(exercising the appellate jurisdiction conferred upon it

 

 by Article 22 of the Court of Appeal (Jersey) Law, 1961)

21^st July, 2003

 

 

Suna MIAH;

Julie Ann LIHOU;

-v-

The Attorney General

 

Application by Suna MIAH for leave to appeal against a total sentence of 4 years' imprisonment passed on 21st February, 2003, by the Inferior Number of the Royal Court, following a guilty plea to:

 

1 count of:	supplying a controlled drug, contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law, 1978 : count 2: diamorphine, on which count a sentence of 4 years' imprisonment was passed; and
1 count of:	possession a controlled drug, contrary to Article 6(1)) of the Misuse of Drugs (Jersey) Law, 1978 : count 3: diamorphine, on which count a sentence of 2 ½ years' imprisonment, concurrent was passed.

 

[On 31st January, 2003, the Crown accepted a not guilty plea to count 1 of the indictment].

 

Application by Julie Ann LIHOU for leave to appeal against a sentence of 18 months' imprisonment passed on 21st February, 2003, by the Inferior Number of the Royal Court, following a guilty plea to:

 

1 count of:

being occupier of premises, permitting or suffering the supply or attempted supply of a controlled drug on those premises, contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law, 1978. count 5: heroin.

 

[On 31st January, 2003, the Crown accepted not guilty pleas to counts 1 and 4 of the indictment].

 

[Third defendant, Anne Marie De Ste George, to whom other counts relate, abandoned her application on 30^th June 2003].

 

[A fourth defendant, Brendan Martin Le Marchand, to whom other counts on the indictment relate, has not appealed].

 

The applications for leave to appeal placed directly before the plenary Court, without first being submitted to a Single Judge for determination.

 

 

Advocate S.E. Fitz for Suna MIAH;

Advocate M.L. Preston for Julie Ann LIHOU;

C.M.M. Yates, Esq., Crown Advocate.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        This is an application by Suna Miah and Julie Ann Lihou for leave to appeal against total sentences of 4 years and 18 months respectively, imposed upon them by the Inferior Number on 21^st February, 2003. 

2.        The background is as follows.  The charges arose out of a search of the flat occupied by the applicants on 15^th July, 2002.  On that day police officers observed Brendan Le Marchand together with a Mr and Mrs Da Conceicao enter the flat.  About one hour later, when Mr Da Conceicao was about to leave, the police searched the flat.  They found Miah in possession of some 3.3 grams of heroin.  On the table in the lounge were a set of electronic scales that showed traces of heroin, some clingfilm and some plastic bags.

3.        Da Conceicao was also searched and police found 743 milligrams of heroin wrapped in clingfilm in his hat.  Le Marchand admitted to possessing heroin and his home was subsequently searched as a result of which charges were brought against him and his girlfriend Anne Marie de Ste George.

4.        Each of the defendants told differing stories.  The prosecution, however, were content that they should each be sentenced on their respective version of events.  So far as Miah was concerned he admitted being supplied with just over 4 grams of heroin by Le Marchand when Le Marchand came around that day. 

5.        He admitted supplying one gram of this amount to Da Conceicao for £200 cash.  Some of that gram was used by Mr and Mrs Da Conceicao at the premises before the police arrived and it was the balance of 743 milligrams out of that gram which was found upon Mr Da Conceicao upon his arrest.

6.        In short Miah pleaded guilty to one count of supplying heroin which related to the gram which he supplied to Da Conceicao, and to one count of possession which related to the 3.3 grams which he intended to retain for his own use out of the amount which he had received from Le Marchand.

7.        Lihou was the legal tenant of the flat.  She pleaded guilty to permitting the supply of heroin on the premises on the basis that she had been aware that the flat had been used for the supply of heroin on that and a couple of other occasions.  She denied that she had ever expressly given her consent to such activities.

8.        Le Marchand admitted being in possession of 9.41 grams of heroin at his flat.  He said that he had taken around approximately 5 grams of heroin to Miah that day in order for Miah to sell it for him.  De Ste George also faced charges in relation to the 9.41 grams at the flat which she shared with Le Marchand.

9.        All four of them were charged with a variety of offences including a count of conspiracy to supply heroin.  All four denied that offence.  Miah and Lihou denied all the charges brought against them on indictment.  However, on 31^st January, 2003, they eventually pleaded guilty to the charges in respect of which they now appeal and the prosecution did not proceed with the conspiracy count.  Le Marchand on the other hand, whilst denying the conspiracy charge, had pleaded guilty to substantive charges laid against him when the indictment was made on 4^th October, 2002. 

10.      Before the Inferior Number, Miah was sentenced to 4 years on the count of supply and 2½ years' concurrent on the charge of possession.  Lihou was sentenced to 18 months' for the one count against her of permitting the supply of heroin at her flat.  Le Marchand was sentenced to 3½ years for the charges against him as was de Ste George. 

11.      We turn now to the application of Miah for leave to appeal against sentence.  The Inferior Number took a starting point of 7 years on the count of supply.  Miss Fitz submits, as did Miah's advocate in the Court below, that the starting point should have been 6 years.  It is said that Miah sold the gram to Da Conceicao for £200 which is the wholesale price.  Miss Fitz argues, therefore, that this was not commercial dealing, it was more a question of one addict doing a favour to another. 

12.      Miss Fitz referred the Court to the Court of Appeal decision in Morgan and Schlandt -v- A.G. (24^th April 2001) Jersey Unreported; [2001/88] and in particular two passages in the judgment in that case.  At paragraph 6, the Court of Appeal said this about Morgan:-

"...She made a practice of buying heroin at wholesale prices and selling half of it in retail packets at a 100% mark-up, using the profits to fund her own consumption of the rest.  It is fair to say that amateur trafficking of this kind is less serious than the professional trafficking carried out by distributors operating on a larger scale who are mainly in it for the money. ....

10. ... as this court recognised in Campbell, the extremes of the scale cannot be wholly inflexible.  In Morgan's case we think that the appropriate starting point is six years.  Our reasons for, exceptionally, going one year below the normal scale envisaged in Campbell are, first, that Morgan was an addict trafficking in commercial but relatively small quantities among a limited circle of acquaintances in order to feed her own consumption, and, secondly, that on the evidence that we have she appears to have been doing this for only a short time before she was arrested on these charges."

13.      It is fair to say that the decision in Morgan was disapproved of by the Court of Appeal in the guideline case of Rimmer [2001] JLR 173 where the Court said at paragraph 34:

"...The margins of these bands are also not to be treated as set in stone.  There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate.  However, we reiterate what this court said in Campbell that it will be seldom that the starting point for any amount of drugs will be below seven years.  In this connection we refer to the recent case of Morgan -v- Attorney General in which, though Morgan was trafficking on a commercial basis, this court took a starting point of only six years.  We consider that the case of Morgan is to be regarded as an exceptional case, and in general the Campbell guideline of a minimum starting point of seven years should be adhered to by the courts of Jersey."

We respectfully endorse and accept those comments of the Court of Appeal in Rimmer.

14.      Miss Fitz says that this is a different case.  She says that this was not commercial supplying because it was a sale at the wholesale price.  She refers us to the case of Attorney General -v- Le Cocq (7^th September, 2001) Jersey Unreported; [2001/192] where in the course of its judgment the court said the following:

"4.  For the heroin which he had supplied he had received £100 in cash from Mrs Huet and that had been supplied at the flat.  However, this cannot be described as commercial trafficking and the guidelines in Campbell do not apply to this case.

5....Although there was a profit in this case it was a small profit, indeed, ..."

15.      The sad fact is that much of the retail dealing in the island is done by one heroin addict to another.  It is simply not possible for the Court to know, in most cases, whether an individual sale is profitable or not.  Such a matter lies wholly in the knowledge of the seller and he or she is most unlikely to admit to the truth of the matter if this were to affect sentence.  There are, of course, other reasons for selling at a wholesale price: perhaps to induce someone to begin taking drugs, although this is not something which is alleged against Miah.  Nevertheless, it shows the difficulties which would become apparent if the Court were to agree that where there was allegedly no profit a lower sentence would be passed.

16.      The fact is that Miah sold a gram of heroin for £200 cash.  In our judgment that is to be treated as commercial dealing and the Rimmer guidelines are to apply.  Indeed, it was not entirely clear what price had been paid by Miah.  In the material before the Inferior Number nothing was said about the price which had been paid.  Miss Fitz has told us that, in fact, it was the same price, namely £200, although it is hard to see why Miah would have been able to buy at a wholesale price if he was simply buying a small amount for himself and possibly for onward supply to a fellow addict.

17.      All of these factors show that it would be a slippery path to acknowledge the points which Miss Fitz has made.  So far as Le Cocq is concerned we have to say that it is very difficult to tell from that case what influenced the court in taking a 6 years' starting point.  It is certainly not articulated by the court, neither is it easy to establish the facts from the judgment.  It seems that the supply in question may have been an extremely small one - namely one injection - because there is reference to Le Cocq being found in possession of more or less the same amount of drugs that he had purchased.  We can well understand, in the case of a very tiny supply well below one gram, that might be something which justifies taking the starting point below the Rimmer guideline.  All in all we do not think the case of Le Cocq can bear the weight which Miss Fitz seeks to place upon it and in our judgment the Inferior Number was quite correct in applying the Rimmer guidelines and taking 7 years as the starting point in this case.

18.      Turning to the mitigation Miss Fitz's first point was that he should have received a substantial discount for his guilty plea.  We think that she modified her written submissions a little as the case progressed.  She accepted that the guilty plea was entered very late, only a matter of days before the trial of the conspiracy charge, but she submits it was only then that the charge of conspiracy was dropped. 

19.      In our judgment the fact that the conspiracy charge was brought was no reason for Miah not to plead guilty to the statutory offences which he knew he had committed and which he subsequently admitted.  Le Marchand also denied the conspiracy charge but he did plead guilty immediately upon indictment to the substantive charges also brought against him.  That was the correct thing to do and it would have been the correct course for Miah.  He only pleaded guilty to those charges very shortly before trial.  The courts have repeatedly said that those who plead guilty at the last moment will not receive a full discount.  Defendants and, importantly, defence advocates must appreciate that the earlier the guilty plea, the greater the discount which will be given, and in our judgment the fact that there was also a conspiracy charge which was dropped offers no reason whatsoever for Miah not to have pleaded guilty to the statutory charges which he had committed and to which he did plead guilty eventually.  In our judgment, therefore, the court below should not have granted anything like a full discount for the guilty plea in view of its lateness.

20.      The other mitigation was put forward in her usual persuasive manner by Miss Fitz.  The applicant is remorseful, he made voluntary admissions in respect of the fact that it was a gram he had supplied rather than the remaining amount in Da Conceicao's possession at the time of arrest.  She referred also to his good employment record and to other matters.  Nevertheless, taking all these into account we cannot ignore the fact that the defendant also has 15 previous drugs convictions of which one was for supply, albeit of a very minor nature, as Miss Fitz has pointed out.  All in all, it is the view of this court that the discount allowed by the Inferior Number was if anything on the generous side and we refuse leave to appeal.

21.      As to Lihou the essence of Mr Preston's submission is that Lihou should have received a sentence no greater than that which was imposed on Schlandt in the case of Morgan and Schlandt to which we have referred.  In order to persuade us of this he carried out a detailed comparison in his skeleton argument of the aggravating and mitigating factors in the two cases.  In so doing he was doing exactly what the courts have repeatedly said is of no assistance in fixing upon the correct sentence.  For example in Rimmer the Court of Appeal endorsed at paragraph 12 what had been said in Campbell [1995] JLR 136 as follows:

"The purpose of referring to earlier cases is not to analyse the exact sentence which was then passed and the precise reasons why the court arrived at it.  This would be an impossible undertaking since sentencing is a discretionary exercise in every case and the reports do not include every feature which influenced the court in exercising its discretion on earlier occasions.

We notice a tendency, particularly in appeals against sentence in drug-related cases, to try to calculate the exact effect given by the court in earlier cases to each factor and then to say that those effects must be reproduced in the case in hand.  This is a misleading exercise since, as I have said, it is impossible from the reports to discover every consideration which influenced the court."

22.      We do not propose to undertake a detailed comparison of the two cases.  Suffice it to say that there was one very significant difference.  Schlandt was said by the Court of Appeal to have no previous convictions of any relevance.  Lihou on the other hand has a number of previous convictions, including four cases of possession of controlled drugs, and significantly, one previous conviction for permitting premises to be used for the supply of controlled drugs only a matter of some seven months or so prior to this offence.

23.      We have taken into account the other mitigating factors which Mr Preston has put forward, in particular the guilty plea although it was late, and her very troubled background.  Nevertheless, having taken all these matters into account we are satisfied that this was not a sentence which was manifestly excessive and we refuse leave to appeal.

Authorities

Campbell and ors -v- AG [1995] JLR 136.

Morgan & Schlandt -v- A.G. (24^th April, 2001) Jersey Unreported; [2001/88].

Whelan: Aspects of Sentencing in the Superior Courts of Jersey; (2^nd Ed'n): p.78.

Rimmer, Lusk & Bade -v- A.G. (2001) JLR 373.

A.G. -v- Welsh (3rd February, 2000) Jersey Unreported; [2000/21].

A.G. -v- Viveiros (19^th February, 2001) Jersey Unreported; [2001/42].

A.G. -v- Le Cocq (7^th September, 2001) Jersey Unreported; [2001/192].

A.G. -v- Miah (12^th January, 2001) Jersey Unreported; [2001/11].