Jersey Unreported Judgments

[2007]JRC044

ROYAL COURT

(Superior Number)

(Exercising the appellate jurisdiction conferred on it by Article 22 of the Court of Appeal (Jersey) Law 1961)

20^th February 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo, Bullen, King, Le Cornu and Morgan..

Claire Louise Fowler

-v-

The Attorney General

Application to the Superior Number of the Royal Court for leave to appeal against the sentence passed by the Inferior Number on 1^st December, 2006, following a guilty plea to:

1 counts of:

Concealing or disguising the proceeds of drug trafficking contrary to Article 30 (2) (a) of the Drug Trafficking Offences (Jersey) Law 1988.

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

Advocate L. J. Springate for the Appellant.

M. T. Jowitt, Esq., Crown Advocate.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application for leave to appeal against a sentence of 2½ years imposed by the Inferior Number on 1^st December, 2006, on one count of concealing or disguising the proceeds of drug trafficking contrary to Article 30(2)(a) of the Drug Trafficking Offences (Jersey) Law 1988.

2.        The facts can be shortly stated: on 24^th March 2006 the applicant and her husband, Christopher James Fowler, drove their car to Elizabeth Quay intending to take the evening ferry to Portsmouth.  The car was stopped by Customs.  Both the applicant and her husband initially denied any wrongdoing.  However, on searching the vehicle, Customs found a black suitcase in which there was £70,000 in cash in 14 bundles, and an orange bag in which there was £25,000 in cash in 5  bundles.  Each bundle of cash had been placed in a scented nappy sack and was then wrapped in cling film.  This was clearly done in order to reduce the chances of sniffer dogs detecting the illegal cash.  When added to a further sum found in the applicant's handbag, the amount of cash totalled just over £97,500.  When interviewed the applicant admitted that she had agreed to transport this money to England, in exchange for a payment of £2,000, for someone who knew of her financial difficulties.  The cash had been put into her letter box most nights during the previous three weeks by an unknown person and she had then wrapped the cash as instructed by that person.  Mr Fowler admitted knowing of the £25,000 in the orange bag, as he had seen it in the car the day before, but he knew nothing of the additional money and had not been involved in the planning of the operation at all.

3.        There was considerable mitigation available to the applicant, and that was urged upon the Inferior Number by her counsel.  It included a valuable plea of guilty, admissions given beyond that which the Crown could prove against her, her previous good character, an assessment of being at low risk of re-offending, her good work record, her difficult background, her co-operation with customs, her remorse, her references and the delay in the proceedings, as well as the fact that she had two children, aged 13 and 9, by her former husband, and one aged 2 by Mr Fowler, and that all three would have to be looked after in her absence.  The Court adopted the Crown's conclusions of taking a starting point of 54 months and, allowing for mitigation, imposed a sentence of 2½ years.  In the case of Mr Fowler, because of his much lesser involvement, the Court imposed a Community Service Order of 140 hours.

As was the case in the Court below, this Court was referred in the written contentions, to a number of cases.  We would refer to the case of AG v Fagan [2005] JRC 031, where the Court said this in relation to money laundering:

"(i)            Where the antecedent offence can be identified some regard ought to be had to the appropriate sentence for the antecedent offence when determining the sentence to be imposed for the money laundering offence.

(ii)          Regard should be had to the extent of the launderer's knowledge of the antecedent offences.

(iii)         Regard should be had to the amount of money laundered.

(iv)         Regard should be had to the period of time during which the money laundering occurs.

(v)           The criminality in money laundering is the assistance, support and encouragement it provides to criminal conduct." 

We would wish to emphasise that drug traffickers are in the business for profit and it follows that disposal of the cash proceeds from the sale of drugs forms an extremely important part of the business of drug trafficking.  Therefore it also follows that the Court will regard the laundering of the proceeds of drug trafficking as a very serious offence, which will almost invariably require a prison sentence.

4.        Mrs Springate, on behalf of the applicant, does not take issue with the starting point of 54 months.  However, she submits that the sentence was manifestly excessive and she has made her submissions in effect under four headings:

(i)        That there was insufficient reduction for the available mitigation.  In particular she says that, assuming one third was allowed for the guilty plea and co-operation, this means that only 6 months was allowed, in addition, for all the other mitigation.

(ii)       That the Inferior Number failed to give sufficient weight to the needs of the children.

(iii)      That the Commissioner made an inappropriate comment when passing sentence when he said:

"We have to say that Mrs Fowler is not a stranger to the drugs trade and we say that advisedly, because her brother has been incarcerated in France for attempting to smuggle a commercial quantity of cannabis. Her other brother had three drug convictions."

She submitted that this gives rise to a sense of grievance because it implies a greater involvement in the drugs' scene than was relied upon by the Prosecution.

(iv)      Mrs Springate refers to events, which have happened since the Inferior Number passed sentence, in connection with the children.

5.        We will take first, the first three grounds of appeal and we will deal with them together.  Firstly, as to the Commissioner's remark, we agree that it might perhaps have been preferable not to have made this remark but we do not think that, of itself, it leads to any suggestion that the sentence was excessive or should be reduced.  Secondly, it is not usually a helpful exercise to analyse in detail whether a particular period of months is sufficient mitigation for matters such as good character.  The key function of any Court is not the starting point, which is often very difficult to assess, but the finishing point, having regard to all the mitigation and having regard to the seriousness of the offence; in other words, the sentence actually passed.  We have already emphasised how seriously the Court regards the laundering of the proceeds of drug trafficking, and the amount involved in this case was substantial.  The Court, therefore, has no hesitation in holding that, on the information then before it, the Inferior Number passed a correct sentence 2½ years, despite the powerful mitigation available to the defendant.

6.        However, as we say, Mrs Springate also relies on events which have happened since the hearing and which were, therefore, not known to the Inferior Number.  These events have been the subject of an additional report from the Probation Service.  At the time of the hearing before the Inferior Number it was anticipated that Mr Fowler would look after all three children, namely the two eldest boys, aged 13 and 9, who are not Mr Fowler's children but have lived with him and the applicant until recently, as well as the youngest child.  Unfortunately, this has turned out not to be the case.  Through no fault of his own Mr Fowler has found himself unable to look after all three children. 

7.        The upshot is as follows:  firstly, although there has been only limited contact over the years between their father and the two oldest boys, and despite the fact that the relationship between the father and the mother is extremely bad, the two eldest boys have, in fact, gone to live with their father during the course of the last week.  The mother has real concerns that this will not be in the boys' best interests.  She is concerned that the boys may be turned against her and some support for that can be derived from the fact that they have apparently already told her that they believe she wants them to go into care, which is not the case.  Furthermore, she is concerned that it will not be in their best interests to live with the father.  We do not feel it necessary to go into detail as to her grounds for that concern, but we are satisfied that they are reasonable grounds for concern.  There is indeed a suggestion that the eldest boy has already been in trouble with the police since she has been in custody.  Secondly, Mr Fowler will, therefore, be left with the youngest child, aged 2.  However, recent events have undoubtedly caused strain in the relationship between Mr Fowler and the applicant, and we accept that there is a real likelihood that Mr Fowler, who has no residential rights in Jersey, will return to England with the child.  That would mean that there would be no contact between the mother and her young child during the period of her incarceration and it will also give rise to serious issues as to who should have the long term care and control of the child when she is released from prison.  So the effect of the sentence, contrary to that which the Inferior Number believed (properly on what it had been told) is that this family is likely to be torn apart.  We are satisfied that there is a real risk of long term damage to all three children as a result.

8.        Hardship to a family, including children, is often an inevitable consequence of sending an offender to prison and yet that is not a reason, by itself, for not imposing a prison sentence.  Society requires that serious offences be punished adequately and the offender should think of the consequences before he, or she, commits the offence.  However, as Thomas, in Principles of Sentencing, makes clear on page 212:

"Family hardship may be a ground for mitigation of the sentence where the particular circumstances of the family are such that the degree of hardship is exceptional, and considerably more severe than the deprivation suffered by a family in normal circumstances, as a result of the imprisonment."

9.        We have not found this an easy case.  On the one hand, the requirement to show that the laundering of drug proceeds will be dealt with seriously suggests that the prison sentence should be upheld; but on the other, we have come to the conclusion that this is an exceptional case.  The exceptional damage which is likely to befall the children of this family should the applicant remain in prison have just persuaded us, by a majority, that in the particular circumstances of this case, and as a act of mercy, the sentence should be suspended so that she can be released in order to resume the care of her family.  That requires us to reduce the sentence to one of 2 years, which we suspend for 2 years.

10.      To that extent, leave to appeal is granted and the appeal is allowed.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

AG -v- Fagan [2005] JRC 031.

AG -v- Fowler and Fowler [2006] JRC 175.

Principles of Sentencing (Second Edition) D.A. Thomas.