Rae-v-AG 22-Nov-2017

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Appeal against sentence imposed on 25 May 2017.

[2017]JCA197

22 November 2017

Before :

Nigel Pleming, Q.C., President;
David C. Perry, Esq., Q.C., and;
David Doyle, First Deemster and Clerk of the Rolls, Isle of Man.

Darryn Rae

-v-

Her Majesty’s Attorney General

Application for leave to appeal against the sentence imposed by the Superior Number of the Royal Court on 25^th May, 2017 on the following list of charges:

Indictment

3 counts of:

Money laundering, namely entering into or becoming concerned in an arrangement that facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person contrary to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999.

Advocate J. Grace for the Appellent.

E. L. Hollywood, Crown Advocate for the Attorney General.

JUDGMENT

THE president:

Introduction

1. This is the judgment of the Court.

2. We are grateful to both advocates for their helpful written and oral contentions.

3. The appellant was charged, together with Antonio Miguel Spinola (“Spinola”), on an indictment with three counts of money-laundering. Spinola was also charged with a separate count of being in possession of criminal property (namely £65,205 in cash), together with drugs offences – one count of possession of 2.2 kilograms of cannabis with intent to supply, and one count of possession of 19½ MDMA tablets and 2.96 grams of MDMA powder.

4. The brief details of the offences, taken from the report of the Royal Court’s decision AG-v-Rae and Spinola [2017] JRC 080, are as follows:

“Rae made three trips to Jersey from Southampton. He was kept under surveillance during his time in the Island. During his first trip, Rae was observed meeting with Spinola and placing a bundle of cash into a bag. Rae then deposited £9,000 in cash into his bank accounts before leaving the Island. During his second trip, Rae was observed retrieving something from Spinola’s car. Rae then deposited £5,200 in cash into his bank accounts before leaving the Island. During his third trip, Rae was observed meeting with Spinola in Spinola’s car. Both parties were arrested and £8,000 in cash was seized from the passenger foot well of the car.

Following the arrests, customs officers searched Spinola’s flat and seized inter alia; (i) a shoebox containing 22 bars (2145.32 grams) of cannabis resin and a quantity of re-sealable plastic bags; (ii) a plastic container containing 19 ½ MDMA tablets, 2.96 grams of MDMA powder and 1.28 grams of cannabis resin; (iii) a cardboard box containing 42.08 grams of cannabis resin; (iv) a cash counting machine; (v) a suitcase containing £30,000 in cash; and (vi) a safe containing £35,205 in cash.”

5. The appellant received a total of 4 years’ imprisonment. This accorded with the conclusions of the prosecution. Spinola received a total of 3 years and 9 months’ imprisonment. This did not accord with the total of 5 years and 6 months’ suggested by the prosecution.

6. The appellant raises three grounds of appeal in his application for leave to appeal against sentence:

(i) The Royal Court erred when it departed from the facts agreed by the prosecution and defence and thereby sentenced on the wrong factual basis;

(ii) The sentence was manifestly excessive;

(iii) There was an unjustified disparity of sentence between the appellant and Spinola.

The role of the Court of Appeal

7. The approach in this Court has been set out, comprehensively, in Harrison v Attorney General [2004] JLR 111, Nutting JA at para 31:

“31. The summary in Archbold, Criminal Pleading, Evidence & Practice (2003 ed.) provides a helpful resumé of the position which we adopt for this jurisdiction (op. cit., para. 7–136, at 966):

“In broad terms, it is submitted that the court will interfere: (a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law; (b) where sentence has been passed on the wrong factual basis; (c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive.”

This is the basic point from which the Court of Appeal starts its analysis of a Royal Court sentencing decision. The Attorney General suggested that sometimes the Court of Appeal had “tinkered” with Royal Court sentences. This complaint contains the seeds for misunderstanding. In some recent cases, the Royal Court has acted on a wrong factual basis: correction on this ground may result in a relatively small alteration to the length of the sentence, but the change must nevertheless be made. Sometimes the Royal Court fails to create a sufficient disparity of sentence between offenders or creates an excessive disparity: a correction may again have to be made notwithstanding that it may result in a relatively minor change to the length of the sentence. But where special factors such as these are not present, we agree that this court should adopt the approach described in Morgan set out above.”

The first ground – wrong factual basis

8. The complaint is that the sentence was passed on the basis of “mere supposition” (relying on Archbold 2017, at para 7-137), and on an erroneous factual basis when it was said that the appellant and Spinola were involved in the same “criminal enterprise”. In particular it is said that the Royal Court erred by taking into account factors, the drugs offences, that were only relevant to Spinola’s sentence. The appellant relies on paragraph 7 of the judgment of the Royal Court. To put that paragraph in context it is first necessary to read paragraphs 2 and 3:

“2. The defendants were involved in a criminal enterprise operating at a significant scale in which Spinola acted as the banker in Jersey collecting the proceeds of the sale of drugs in Jersey and handing it over to Rae who would come over to Jersey to bank it in cash in two bank accounts he had here whereby the proceeds were paid upstream to associates in England. Three trips to Jersey by Rae were monitored by the police in which he collected a total of £22,000 handed over by Spinola, including the £8,000 found in Spinola’s car when the two were stopped and arrested. The quantities of cash were such that Spinola had acquired a safe and a cash counting machine.

3. A search of Spinola’s flat revealed the cannabis resin and MDMA and £65,205 in cash in two locations. Spinola told the police that this cash was due to Rae, something Rae denies, but we regard it as part of the criminal enterprise, for which Spinola will receive a concurrent sentence. Spinola told the police that the drugs found in his flat was his reward over the part he played in the enterprise. He and his girlfriend were cannabis users and he would sometimes give cannabis to friends; whether he charged his friends depended on how, using his words, “flush they were”.”

9. It appears to this court that those paragraphs are a fair summary of the facts. It was obvious that this was an enterprise in which both the appellant and Spinola played a part – it was indeed a criminal enterprise. It would have been wrong for the Royal Court to have ignored the context in which the money laundering took place. The appellant was not being sentenced, separately, for the drugs offences but the fact that the money related to a criminal drugs enterprise was a relevant factor.

10. Paragraph 7 of the Royal Court’s judgment provides:

“We will come to the issue of mitigation in a moment, but the Crown also took the view that the drugs found at Spinola’s flat were unrelated to the enterprise with Rae and should be dealt with consecutively. Applying the guidelines in Campbell-v-AG [1995] JLR 136 to the cannabis this would lead to a consecutive sentence of 1½ years for the cannabis and therefore a total sentence of 5½ years for Spinola as against 4 years for Rae. We agree with Advocate Steenson [acting for Spinola] that Spinola’s drug offences are not separate from the enterprise. It is clear from his interview with the police that the drugs found were his reward for the part he played and therefore we agree that it formed part of the enterprise and should result in a concurrent sentence.”

11. This paragraph is confined to Spinola, and the contention by the Crown that he should receive an additional, consecutive, sentence in relation to the drugs. The Royal Court’s conclusion was that the sentence should be concurrent on the basis “that the drugs found were his reward for the part he played”. This outcome was favourable to Spinola but it is difficult to see any basis for complaint by the appellant.

12. As noted by Crown Advocate Hollywood, when a court is engaged in the task of sentencing more than one co-defendant it may be faced with discrepancies and conflicts as to their respective roles. The Court must be careful to ensure that when sentencing a particular defendant, only those factors which may properly be attributed to that defendant are taken into account – see the judgment of the Court of Appeal in Franey & MacAlinden v A-G [2006] JCA 078A, at paragraph 5.

13. We are satisfied that the Royal Court took the correct approach. There is no suggestion in its judgment that the appellant’s overall sentence of 4 years was increased or influenced in any way by the specific drugs found in Spinola’s flat, or by any factor not properly related to the appellant. He was properly sentenced on the basis that the money laundering was part of a criminal enterprise, and the subject of that enterprise was the illegal supply of prohibited drugs in Jersey.

14. There is nothing in this ground of appeal.

Second ground – manifestly excessive

15. Advocate Grace relies on AG v Goodwin [2016] JRC 165, and accepts that the Royal Court could have regard to the various factors there set out – see the principles listed in paragraphs 4 to 7 of the judgment. Goodwin reflected a change in sentencing policy to address, as the Superior Number described it, the “evil of money laundering”.

16. We are satisfied that the Royal Court did not have regard to any irrelevant factors, but did have regard, where appropriate, to the factors listed in Goodwin. This is particularly clear in paragraphs 8 and 9 of the judgment when discussing mitigation (read with the facts summarised in paragraph 2 of the judgment set out above):

“8. Turning to mitigation, both defendants have the benefit of guilty pleas and we have taken into account everything put forward by their respective counsel but we conclude that there is more mitigation available to Spinola. Firstly, Spinola’s record is very much better than Rae’s; he has three convictions in the Magistrate’s Court for five offences, one for possession of a small quantity of drugs, all before 2000 and he has never been in prison. Rae has twenty-four convictions for seventy-nine offences in the UK dating from 1977 to 2009 including offences of dishonesty, violence and drug-trafficking for which he has received multiple custodial sentences. Secondly, whilst Rae has had a troubled life as explained to us in his letter, which we have considered carefully, we were impressed by what Spinola has said to us in his letter and through his counsel and by the extent of his remorse and shame. Accordingly we are going to give Spinola a greater reduction for mitigation.

9. But subject to that, the roles played by Rae and Spinola, as the prosecution has said, would have provided assistance, support and encouragement to criminal activities; just as there would not be thieves without receivers, there would not be drug-traffickers without money launderers. In our view the sentences must not only reflect the seriousness of the defendants’ conduct but also have a deterrent element for those who may consider participating in similar activities.”

17. We have carefully considered the cases relied on by the appellant to demonstrate that his sentence was disproportionate – AG v Turney [2016] JRC 175, AG v Fish and Hinds [2016] JRC 181A, and AG v Whelan, Grace and Robinson [2017] JRC 040B – but on examination, they are all cases decided on their own facts and the mitigation there set out, very different from the facts and mitigation relating to the sentence of the appellant. Perhaps the closest, on the facts, is Whelan, Grace and Robinson, where Whelan was sentenced on one count of money laundering (£80,000) to 27 months’, and one count of possession of criminal property (£40,020) to 15 months’, an overall sentence of 3½ years’ imprisonment. The Court sentenced Whelan on Count 1 (money laundering) on the following factual basis:

“4. You, Whelan have pleaded guilty on the basis that you had allowed a third party to use the garage where the £80,000 was stashed and you agreed to collect the hire care from the People’s Park. You did not know the amount of money or its source but you suspected that the arrangement concerned money which was the proceeds of crime.”

18. The cases on which the appellant relies do not convince us that the sentence imposed, with a permissible deterrent element, was manifestly excessive. With or without reference to those cases we are satisfied that the overall sentence of 4 years “fell well within the range open to the sentencing court” – Morgan v AG [2001] JLR 225, applied in Harrison at [30] and Bhojwani v AG [2011] JLR 249, at [200].

The third ground - disparity of sentence between the appellant and Spinola.

19. As we noted earlier in this judgment, the Crown suggested a sentence of 4 years’ imprisonment for the appellant, and a total of 5½ years’ for Spinola. But the Court’s decision was that Spinola received a sentence 3 months shorter than the sentence imposed on the appellant. There is therefore an apparent disparity. The rejection of the Crown’s suggestion that Spinola should receive a consecutive sentence of 18 months is addressed above under Ground 1 of the appeal. That leaves only the difference of 3 months.

20. Our attention was drawn to Bevan v AG [2003] JCA 014. In that case, at paragraph 11, the Court of Appeal said: “we accept that in sentencing co-accused the sentencing court is entitled to differentiate between offenders not only on the basis of their separate involvements in the offence but also on their personal circumstances, record and general character”. The main thrust of the appellant’s argument, as here, was disparity in the light of the leniency shown to a co-accused. At paragraph 15, after the example of where “the principal participant in the offence is being sentenced alongside somebody who is merely on the periphery and is involved to a far lesser extent”, it was accepted that “the Court must interfere if the disparity leads to a justified sense of grievance”. In the same paragraph the court adopted the words of Judge Colston QC in Rugg (1977) 2 Cr App R 350, at p.352:

“…where an appellant has received a sentence which is not excessive for his offence but a co-defendant whose culpability is not significantly different has received a less severe sentence which is unduly lenient, the Court of Appeal may reduce the appellant’s sentence if the disparity is so substantial that the appellant has a justified sense of grievance.”

This passage follows a short extract from the headnote in Fawcett (1983) 5 Cr.App R(S) 158:

“The approach of the Court was to ask whether right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, would consider that something had gone wrong in the administration of justice.”

21. If an appellant has a sense of grievance it must be justified. For example, because any disparity between co-defendants cannot be explained by or inferred from the known circumstances. In Bevan, the Court of Appeal allowed the appeal and substituted lower sentences “solely on the point of disparity and the inexplicable mercy afforded to the co accused”. That is not this case.

22. There was sound justification for the difference in sentences in this case, certainly nothing to demonstrate that the disparity is so substantial and so unexplained as to provide the appellant with a justified sense of grievance. The starting point in the view of the Royal Court, was that both the appellant and Spinola were “equally culpable” (para 5), even though the appellant appeared to be higher up the chain. The Royal Court therefore proceeded on the basis that 4 years’ imprisonment was the appropriate level of sentence for both defendants to reflect their culpability “subject to mitigation” (paragraph 6).

23. The relevant paragraphs of the judgment dealing with mitigation (paragraphs 8 and 9) are set out above. The appellant was sentenced to a total of 4 years’ imprisonment, Spinola to 3 years and 9 months’. We have considered the transcript of the sentencing hearing on 24th May 2017, together with the supporting documents, where the mitigation for both the appellant and Spinola was presented and developed. In our view the Royal Court was fully entitled to conclude “that there is more mitigation available to Spinola”, and sentence accordingly.

24. There is here no unexplained, or unjustified, disparity of sentence. If the appellant does continue to harbour a sense of grievance it is not justified. Nor would informed right-thinking members of the public consider that anything here had gone wrong in the administration of justice.