2002/112

COURT OF APPEAL

6^th June, 2002

James O’Brien;

Jonathan David Smith

-v-

The Attorney General

Appeal of James O’Brien against sentence of 8 years’ imprisonment passed on 12^th February, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 11^th January, 2002, following a guilty plea to:

Leave to appeal was granted by the Bailiff on 21^st March, 2002.

Appeal of Jonathan David Smith against a total sentence of 7½  years’ imprisonment passed on 12^th February, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 11^th January, 2002, following a guilty plea to:

Leave to appeal and an extension of time within which to apply for such leave was granted by the Bailiff on 9^th April, 2002.

Advocate Mrs. S. A. Pearmain for James O’Brien;

Advocate Mrs. C. R. G. Deacon for Jonathan David Smith;

J. C. Gollop, Esq., Crown Advocate.

JUDGMENT

 CAREY JA :

Introduction

1.        This is the judgment of the Court.  These are appeals against sentence with leave of the learned Bailiff by two of three men who appeared before the Superior Number of the Royal Court on the 12th February, 2002, jointly charged with being concerned in the importation into the island of just under 60 kilos of cannabis resin.

Circumstances of the offence

2.        The Appellants were observed at 1.20 a.m. on Sunday, 28th October 2001 untying a dinghy from the pontoon at St. Aubin's Harbour and taking it out to a vessel which had been observed being moved to an outer buoy by O'Brien earlier in the day.  This vessel JY37 "Maysie" was then seen travelling south westerly towards the Demi des Pas Lighthouse.  Later that morning at 4.35 a.m. a vessel was heard motoring at speed into Grouville Bay, it came up to the shoreline adjacent to the golf course.  Two persons were observed on board the vessel which was identified as the "Maysie" and the silhouette of a third person was seen on the shoreline with a torch moving towards the vessel.  After the vessel had rendez-voused with that person, two persons were seen to emerge from the shadow of the vessel and come up towards the sea wall.  At approximately 4.50 a.m. two males were seen climbing up the steps onto the golf course.  Each was carrying a heavy holdall.  The vessel went back out to sea.  The two males on land were identified as the Appellant Smith and the third participant in the enterprise a man called Lynn who has not made any application for leave to appeal against sentence.  Smith and Lynn were arrested.  O'Brien was arrested at 7.00 a.m. when he arrived in St. Aubin's Harbour having rode ashore in a tender following mooring the vessel JY37 "Maysie" outside St. Aubin's Harbour.

The sentences imposed

3.        As we have said all three were jointly charged with being concerned in importation of what was by a relatively small margin the largest importation of cannabis resin into Jersey with what is described as a wholesale value of approximately £250,000.  The sentences imposed by the Court were as follows:-

O'Brien (37 years of age) - 8 years

Smith (26 years of age) - 7½ years

Lynn (44 years of age) - 7 years

In reaching its conclusions on these sentences the Court took as a starting point for O'Brien and Smith 12 years and the starting point for Lynn 11 years.

In the guideline case of Campbell and Others v. Attorney General [1995] JLR 136 CofA, this Court in considering the appropriate starting point for importations of class B drugs adopted as a starting point for importations of consignments in excess of 30 kilograms of cannabis resin a minimum of 10 years’ imprisonment.

It does not appear that since Campbell this Court has had to revisit the issue of starting points on what can be called large-scale importations of cannabis resin.  The Royal Court in the case of the Attorney General v. Dicker and Others (28th October, 1998) Jersey Unreported, which involved the importation of around 55 kilos of cannabis resin by three young men using a small boat to land on the east coast of Jersey adopted starting points of 12 years in respect of each offender.  The sentences imposed were 8 years’ imprisonment and 8 years’ youth detention for the youngest of the three.  This Court does not find a starting point of 12 years for offending on this scale as excessive.  Here we have in the case of these Appellants a joint enterprise to take a boat to a beach in France, collect a massive consignment of cannabis resin and bring it across at dead of night onto a beach at Grouville.  Not only has there been a substantial importation, but also the perpetrators have endeavoured to take advantage of the difficulty of the authorities in policing the relatively long coastline of the island, particularly at night.

The grounds for appeal

4.        As we have recorded leave to appeal against sentence was granted by the learned Bailiff in this case and it is clear that the issue that may have been troubling him and which this Court must look at closely is the apparently disparate way in which these three offenders were dealt with in the Royal Court.  This requires looking at the cases of the two Appellants separately.

The complaint of O'Brien

5.        So far as his co-Appellant Smith is concerned O'Brien complains that whilst the starting point of 12 years were the same for him and Smith, Smith got 4½ years taken off whereas he only got 4 years.  The Appellant O’Brien admits that he did not cooperate at the point of interview, as he did not know if the Crown had sufficient evidence against him.  His guilty plea came once he realised that there was evidence against him.  His greater complaint is at the disparity between his sentence and that imposed on Lynn.  It will be remembered that Lynn was the man who came down to the beach in the middle of the night with a torch to meet the boat as it arrived from France.  Lynn claimed that his involvement in this enterprise was limited to having been approached in a pub by a person who offered him a job.  He was instructed to await a telephone call from an unknown person and then he was instructed to meet a boat in Grouville Bay.  He was to collect a bag of cannabis from the boat and deposit it in a sand bunker on the golf course.  Another person would retrieve the bag from the bunker.  Lynn claimed to be surprised that Smith had also got off the boat, but it is quite clear that those who engage in cannabis importations of this size have a logistic problem when it comes to carrying the goods around and clearly the porterage services of both Lynn and Smith were needed if the cannabis resin was to be successfully removed from the shore to a temporary resting place on the golf course.  The learned Deputy Bailiff and the jurats took the view that a lower starting point albeit a modestly lower starting point was appropriate for Lynn because of his reduced involvement in the actus of the offence.  Unlike O'Brien and Smith who had been out all night, the offending of Lynn covered a period of minutes between the time he took possession of the cannabis and his apprehension.  One might say that it was stretching credulity to suggest that all Lynn was doing was for a fee going out in the middle of the night meeting a boat on the beach and assisting those who were importing the cannabis to carry it a short way to somewhere on the golf course.  Lynn's version of events perhaps becomes even less credible when one notes that he was not expecting Smith to come with him off the boat. He was thus anticipating that whoever the organisers of this importation were, would leave this valuable consignment in his sole charge at 5 o'clock in the morning.  Be that as it may, this Court is not here to criticise the jurats of the lower court for declining to draw inferences which may not have been justified.  In those circumstances any lower starting point for Lynn, even if it was generous, cannot be faulted particularly when one compares his involvement with that of O'Brien.  It was O’Brien who organised the borrowing and victualling of a friend's boat in order to carry out this enterprise, which was clearly carefully pre-planned.  He also had the skill and expertise to navigate in the inhospitable waters between the east of Jersey and France.  The other complaint that O'Brien makes is that in sentencing Lynn the learned Deputy Bailiff refers to Lynn being younger than the others as something that went to his credit.  We accept that the Jurats may not have shared in this confusion but even so this does not alter our conclusion that so far as O’Brien is concerned we see no grounds for any sense of grievance.  We will be coming on to Smith shortly, but again any leniency to which he may have been entitled stands by itself.  It is clear from the facts that O’Brien, even if he was not the principal organiser and financier of this enterprise was a major player in the execution of this sophisticated plan and the one third discount he received was if anything generous.  His appeal is accordingly dismissed.

The complaint of Smith

6.        On behalf of Smith Advocate Deacon has developed the point that a starting point of 12 years in these circumstances is inappropriate having regard to the fact that the maximum sentence for this offence under the Customs and Excise (Jersey) Law, 1999 is one of 14 years’ imprisonment.

7.        In Campbell this Court clearly indicated that the sentencing policy for offences of importation under the Customs legislation and possession with intent to supply under the Misuse of Drugs Law would be similar.  Perhaps the disparity in maxima in the statutory provisions was not thought about, but this Court now has the opportunity of taking into account the point that Mrs. Deacon makes.  We have already indicated that we do not find any fault with developing the guidance given in Campbell to provide that the starting point for amounts in excess of 30 kilos of cannabis resin should be 12 years.

8.        The point about Smith being the youngest of the three offenders has greater importance in his appeal.  Smith cannot claim a lot of credit for his comparative youth.  Unlike one of the offenders in Dicker who received 8 years’ youth detention he was at the time of the offence 26 years of age albeit that he is described as being somewhat immature.  Although reticent about the role others had played, he admitted his own involvement at an early stage  More to his credit is that he does not seem to have been in any trouble since he came to Jersey 5 years ago and could point to a creditable employment record.  There are also a number of referees who speak well of him.  The picture he presents of being recruited as second man for the crew of the boat may be true.  However his agreeing to travel in this boat to France in breach of Customs and Immigration Regulations and come back to Jersey with a valuable cargo of cannabis resin makes  him a central participant in this offending and he must be sentenced on that basis.  We therefore do not feel that the starting point of 12 years was wrong.  However what allowance should have been made in respect of the mitigation available to the Appellant Smith?  We can understand that the error in identifying the youngest offender could justifiably lead to a sense of grievance in this Appellant’s case.  In all the circumstances we consider that Smith is entitled to a greater discount than he received.  His appeal will accordingly be allowed to the extent that his sentence will be reduced to one of seven years’ imprisonment.

Authorities

Campbell & Ors-v-AG (1995) JLR 136 CofA.

AG-v-Dicker & Ors (28^th October, 1998) Jersey Unreported.

AG-v-Travis and 2 others (8^th May, 2002) Jersey Unreported; [2000/80]