COURT
OF APPEAL
14th January, 1998
Before: R.D.
Harman, Esq., Q.C., (President)
R.C.
Southwell, Esq., Q.C., and
Sir
Peter Crill, K.B.E.
Alan Martin
- v -
The Attorney General
Application for leave to appeal against a sentence
of 3½ YEARS’ YOUTH DETENTION, passed on 1st September,
1997, (and amended on 5th September, 1997), by the Superior Number
of the Royal Court, to which the appellant was remanded on 15th
August, 1997, by the Inferior Number, following a guilty plea to:
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 1: M.D.M.A.
[On 23rd
August, 1996, the accused pleaded guilty before the Inferior Number of the
Royal Court to 1 count of receiving, hiding, or withholding stolen goods (count
1b of the first indictment laid against him and a co-accused, Howard Patrick
Selby); and to 1 count of assault (count 1 of the second indictment), and was
remanded in custody.
On 19th
December, 1996, the accused was sentenced on count 1b of the first indictment
to 6 months’ youth detention.
Count 1 of the second indictment was amended by the Crown to a count of
grave and criminal assault, to which the accused pleaded not guilty, but guilty
to the original count of assault, which plea the Crown accepted, and was
sentenced to 3 months’ youth detention, consecutive.
On 28th
February, 1997, the accused and one other, Mark Ferguson, pleaded not guilty to
1 count of grave and criminal assault on an inmate at Her Majesty’s
Prison at La Moye; the co-accused was remanded in custody, the accused was
granted bail, pending trial before an criminal assize to start on 12th
May, 1997.
On 8th
May, 1997, the accused pleaded guilty to the count under appeal, and was
remanded in custody to receive sentence after the conclusion of the criminal
assize.
On 15th
August, 1997, the Crown reduced the charge of grave and criminal assault
against Ferguson to one of assault.
Ferguson pleaded guilty and was remanded in custody to receive sentence
before the Inferior Number on 29th August, 1997. The Crown withdrew the prosecution on
the same charge against the accused, who was remanded in custody to receive
sentence on the count under appeal].
Leave to appeal was refused by the Bailiff on 6th
October, 1997; the application was renewed to the plenary Court, under Article
39 of the Court of Appeal (Jersey) Law, 1961, on 9th October,
1997.
Advocate P.S. Landick, Esq.,
D.E. Le Cornu, Esq., Crown Advocate.
JUDGMENT
THE
PRESIDENT: At about 9 o’clock on the evening of 28th February,
1997, this applicant, then aged 20, and another man named Stephen Hendry, were
stopped by two police officers in plain clothes near the JMT bus depôt in
St. Helier. The purpose of the
officers was to conduct a routine stop check. Hendry proved to have nothing on him,
but efforts to search Martin resulted in some resistance and he and one of the
officers ended up on the ground.
Martin tried to throw away a plastic bank bag which was recovered and it
was found to contain 22 tablets.
These tablets were found, on analysis, to contain an average content of
113 ml. of Ecstasy with a current street price locally of about £20 per
tablet, that is to say, with a total street price of approximately
£440. At the time of his
arrest the applicant said nothing.
A total of £200 in cash and a wage slip was found in two separate
pockets of his jeans.
The following day he was interviewed under caution and
he made no reply to all the questions asked. That same day he was charged with
possession with intent to supply and also with simple possession of the Ecstasy
and on 3rd March appeared before the Magistrates’ Court where
he pleaded guilty.
For the sake of completeness it is to be noted that
earlier on 28th February - the day of his arrest - the applicant and
another man named Mark Ferguson had pleaded not guilty before the Royal Court
to an indictment alleging assault and they were both remanded for trial at a
later date, Martin on bail. Thus on
8th May, having pleaded guilty to the indictment, the subject of
this appeal, Martin was remanded in custody for sentence on a date to be fixed
pending the outcome of his trial with Ferguson.
On 15th August, that case against him was
withdrawn and he was remanded in custody to 1st September for
sentence by the Superior Number for this matter. On that day, he was sentenced to
3½ years’ imprisonment, a sentence which was varied on 5th
September to 3½ years’ youth detention because on 8th
May, the date of his conviction, the applicant had been aged 20.
It now transpires that this sentence was in fact
imposed by the Inferior Number in the absence of the applicant and without
regard to the provisions of Article 4 of the Criminal Justice (Young
Offenders) (Jersey) Law, 1994.
This Court is invited to consider a further ground of appeal, namely
that the sentence was invalid. We
are therefore asked to deal with the application on the grounds that (1) the
sentence was invalid and (2) that it was excessive. In the event of these applications being
granted we are invited to substitute such sentence as is appropriate and
following the provisions of Article 4.
When passing sentence the Deputy Bailiff referred to
the policy of the Court towards the offence of drug trafficking and to the
judgment of this Court in Campbell, Molloy and MacKenzie -v- AG (1995)
JLR 136 CofA when the Court said:
“That policy is that offenders will receive condign punishment
to mark the peculiarly heinous and antisocial nature of the crime of drug
trafficking.”
The Deputy Bailiff also said:
“We intend to be guided by the Court of Appeal and to take six
years as the starting point in this case.
There has been no co-operation with the police but his youth must play a
part in our consideration. For the
guilty plea we cannot allow a full one-third discount but the small volume of
drugs and the excellent reference allows us to take a more individualised
approach than we might otherwise have done.”
On 6th October, 1997, leave to appeal
against his sentence was refused by the Bailiff and the application is now
renewed before this Court.
It is submitted that the sentence was manifestly
excessive and/or wrong in principle.
We have been invited to interpret the judgment in Campbell, Molloy
and MacKenzie in the context of discount for a plea of guilty in the light
of the Deputy Bailiff’s words in passing sentence and before he stated
that the Court could not allow a full one-third discount. Earlier in the judgment he had said:
“Martin has pleaded guilty and had he not there might have
been problems proving trafficking on the facts as they were set out to
us.”
So this is not a case of a person caught in flagrante delicto for a case of possession with intent to supply
as distinct from simple possession.
It is a case otherwise dependent on the quantity found being judged a
commercial amount and, it is urged upon us, a guilty plea was by no means
inevitable. The sum of £200
found on the applicant was said by him to have been his wages and it appears
there was no evidence before the Court to contradict this and no application
for forfeiture was made.
We take the opportunity to underline the view previously expressed
that a reduction of one-third in a sentence for a plea of guilty is in no sense
an inflexible rule and the precise deduction in each case must depend upon the
circumstances in which the guilty plea came to be made. However, we consider that there is force
in the argument advanced here that the plea of guilty was not inevitable,
particularly after the Deputy Bailiff had spoken of “the small volume of drugs
involved.”
We have had regard to a number of authorities including the case of AG
-v- Postill (2nd October, 1995) Jersey Unreported where the
accused, who was aged 19, was found in possession of 18 tablets of Ecstasy when
arrested for shoplifting. He
admitted at once that he would have sold a few if he needed extra cash. The potential value was similar to that
in the present application. He
pleaded guilty to possession with intent to supply and was sentenced to 30
months youth detention. He was
sentenced as a first offender. In
passing sentence in that case the Bailiff said:
“In our judgment this was at the lowest end of
the scale of drug trafficking.
There was an intent to supply but it was an intention to supply in our
view only a very small number of tablets probably less than ten. We are satisfied that this
defendant’s involvement in trafficking was peripheral.”
The Bailiff further said that the Court would take a
starting point of six years’ youth detention and would make an allowance
of two years for the guilty plea, which as he said “is probably generous
bearing in mind the circumstances.”
The Court also took into account the defendant’s age,
previous record and family support and made a further allowance of 18 months in
that respect.
In the present case the applicant was aged 20 and has
a criminal record which includes a conviction for possessing cannabis in
1994. He was apparently intending
to sell about 20 tablets. At the
same time he also had a supportive family and the Court had two references, one
from the Roman Catholic Chaplain at La Moye Prison. The Court took rightly in our view a
starting point of six years. We
have given very careful consideration to the circumstances of this case. Without seeking to lay down any new or
revised principles, but judging the case solely on its merits, we consider that
this applicant should have been granted a discount in the region of one-third
for pleading guilty to the offence which involved an intent to supply as
distinct from simple possession.
This is entirely on the basis of the facts already referred to and
acknowledged by the Deputy Bailiff when passing sentence. However we do not consider that the
remaining mitigation deserves a further reduction of more than one year. In our judgment the right course here is
to allow this application, or applications; to treat the hearing of the applications
as the hearing of the appeal and to take the exceptional course of reducing the
sentence from 3½ years to 3 years’ youth detention, giving a full
allowance of two years for the guilty plea. We emphasise that this decision does not
involve any fresh approach to the subject of discount when sentencing after a
plea of guilty but is based solely on the facts of the instant case. Further it should be emphasised that we
do not accept the submission made to us on behalf of the application that the
principles and guidelines laid down in Campbell were not intended to
apply in cases such as the one before this Court today.
(The President turned to the Applicant)
In our judgment there is no other method, that is to
say other than a sentence of youth detention, of dealing with you which is
appropriate the reason being that the offence is so serious that a
non-custodial sentence cannot be justified and I have to explain that to you
here and now and to explain to you also that on your release you may be subject
to a period of supervision in accordance with Article 10 of this Law.
Authorities
Campbell, Molloy and MacKenzie -v- AG (1995) JLR 136 CofA.
Carter -v- AG (28th September, 1994) Jersey Unreported.
AG -v- Postill (2nd October, 1995) Jersey Unreported.
Criminal Justice (Young Offenders) (Jersey) Law, 1994: Article 3(1);
4(3).
Whelan: Aspects of Sentencing in the Superior Courts of Jersey: pp.
41-6;
Noter-up: May 1994 - May 1995 p.3;
Noter-up: May 1996 - May 1997 p.7.