2001/22
5 pages
COURT OF APPEAL.
23rd
January, 2001
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Before:
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Sir John Nutting, Bt., Q.C., President;
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P.D.
Smith, Esq., Q.C., and;
M.G.
Tugendhat, Esq., Q.C..
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Adrian
Jenkins
-v-
The
Attorney General
Application for leave to
appeal by Adrian Jenkins against a total sentence of 3½ years’
imprisonment, passed on 11th October, 2000, by the Superior
Number of the Royal Court, to which the appellant was remanded by the Inferior
Number on 15th 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 20th November, 2000; and on 22nd
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 11th
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
(20th July, 2000) Jersey Unreported.
AG-v-Fogg
(1990) JLR 206.