Jersey Unreported Judgments

Superior Number Appeal - drugs - application for leave to appeal the sentence of 19th October, 2018.

[2019]JRC006A

Royal Court

(Samedi)

23 January 2019

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Nicolle, Crill, Ronge, Fisher and Marett-Crosby

Joshua Samuel Gill

-v-

The Attorney General

Advocate R. C. L. Morley-Kirk for the Appellant.

C. M. M. Yates Esq., Crown Advocate.

JUDGMENT

THE COMMISSIONER:

1.        The appellant seeks leave to appeal against a sentence of 2 years' youth detention imposed by the Inferior Number (the Bailiff sitting with Jurats Grime and Thomas) on 19^th October, 2018, on the ground that it was manifestly excessive.  The appellant asks for that sentence to be set aside and a non-custodial sentence imposed in its place.

2.        The facts in brief are that the appellant was a passenger in a car when during a routine road check he was found to be in possession of a plastic bag containing 24.88 grams of herbal cannabis (Count 4) and a pouch in a pocket of a jacket containing a small quantity of cannabis and cannabis resin (Count 5).  A subsequent search of his house revealed a box containing 3½ bars of cannabis resin weighing 349.33 grams (Count 6).  The appellant told the police that he was a heavy user of cannabis who occasionally supplied friends on a social supply basis.  He provided the police with the PIN code for his mobile phone, which on analysis revealed messages relating to the supply of controlled drugs.  On further interview the appellant admitted:

(i)        Offering to obtain cocaine in February 2017 (Count 1).

(ii)       Supplying 33 MDMA tablets and 2 grams of MDMA powder between February and August 2017 (Count 2) and

(iii)      Supplying 125 grams of cannabis between July and November 2017 (Count 3).

The report from the drugs expert concluded that the appellant was involved in supply at the lower to middle market of the supply scale and that he was "a 'go to person' with drug network connections".

3.        The prosecution moved for a starting point of 7 years' imprisonment, the lowest starting point in the ranges set out in the case of Bonnar and Noon v AG [2001] JRL 626 for the Class A offences of this quantity and 12 months' imprisonment for the Class B offences.  The prosecution took account of the following mitigation:

(i)        The appellant's early plea of guilty, which it said entitled him to a full one third discount.

(ii)       His cooperation which entitled him to a further discount.

(iii)      The time since the offending had ceased.

(iv)      The appellant's youth and the social element in the supply.

(v)       His good character; he has no previous convictions.

(vi)      The references that were supplied and his work record.

4.        The appellant was 19 on the day of his sentencing and therefore the provisions of Article 4(2) of the Criminal Justice (Young Offenders) (Jersey) Law 2014 applied, which is in these terms:-

"(2) A court shall not pass a sentence of youth detention unless -

(a)       ...

(b)       ..., it considers that no other method of dealing with the person is appropriate because it appears to the court that -

(i)         the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them,

(ii)        only a custodial sentence would be adequate to protect the public from serious harm from the person, or

(iii)       the offence or the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified"

Recognising that it was the third question that applied, namely whether "the totality of the offend was so serious that a non-custodial sentence cannot be justified" the prosecution took the view that a non-custodial sentence could not be justified, and moved for a sentence of 2½ years' youth detention on the most serious offence (Count 2), with concurrent sentences for the remaining counts. 

5.        The sentencing court's attention focused on the same issue, and agreed with the prosecution that the appellant's offending was too serious.  Quoting from the judgment of the court AG v Gill [2018] JRC 196 at paragraphs 4 to 7:

"4.      I want to tell you why we take that view.  You were offending over a period of nearly a year, February 2017 to December 2017 at least, so we take it that is the relevant period.  It is clear from the records of what we have seen, we have had put before us, that sometimes you initiated the contacts with others, sometimes they initiated the contacts with you and that you were known to be as the Crown puts it, "the go to person" to get drugs of different kinds.  That was serious offending over a prolonged period and of itself would have justified a conclusion that the totality of that offending is so serious that no other sentence would be appropriate. 

5.        You were also prepared to look for Class A drugs in the shape of cocaine as well as actually dealing in Ecstasy tablets.  Even though you could not find the cocaine you were still prepared to do it, and that makes the offending in overall terms serious.  And it is also important to add this, that if we had reached any other view then we would have exposed lots of other young people of 17 or 18 to being targeted by drug dealers as potential low grade intermediate drug dealers themselves.  That is undoubtedly what would have happened and so there is an important message that goes out to all those who might be tempted to take drugs that this is serious offending and will be met with a custodial sentence.

6.        Your counsel has referred to the case of AG v G [2018] JRC 166 and I want to add that was a very exceptional case.  One of the Jurats who is sitting today also sat on that case and the reference in the sentencing remarks in AG v G to all documentation before the Court shows it to be a thoroughly exceptional case and it is to be viewed in that light.  So, we do not think that the 2014 Criminal Justice Young Offenders Law operates to prevent a custodial sentence.  In that context we have also taken into account that you are still taking cannabis and you are still breaking the law and that is a relevant feature in our conclusions too. 

7.        Having looked at the starting point of 7 years we are going to allow a greater discount than the Crown has allowed and I will say immediately that the Crown has already allowed quite a substantial discount but we are going to allow some extra time off it and you are going to be sentenced to a total of 2 years' youth custody on Count 2.  All the other sentences will be concurrent."

6.        In terms of the grounds of appeal Advocate Morley-Kirk submitted that the sentencing court failed to attach sufficient weight to the available mitigation.  The court failed she said to take into account the relatively small amounts of Class A drugs involved showing that this was an "amateur operation of social supply."  The Bailiff she said "appeared to focus on the dealing itself rather than the amount".  This was apparent from the Bailiff's questions on whether a Valler uplift should apply" when the authorities she said, were clear that it should only apply "where a substantial quantity of the second drug was involved." 

7.        Advocate Morley-Kirk had put forward seven grounds of mitigation:-

"1.       The guilty plea and cooperation;

2.        The delay;

3.        His positive conduct since his arrest;

4.        His age at the time of offending;

5.        The faultless way in which he dealt with probation and the contents of the report including remorse;

6.        References and family support;

7.        Lack of any record"

8.        In its judgment the court, she said, only referred to the appellant's guilty plea, his age and delay in the context of his age.  None of the other positive factors, were mentioned in the judgment.  She cited authorities to show that notwithstanding the seriousness of the offences the court was able to impose a non-custodial sentence in similar cases, namely the cases of AG v G [2018] JRC 166, referred to by the Bailiff in his judgment, AG v Riley [2014] JRC 248, AG v Botting and Moore [2016] JRC 005 and AG v Webb [2018] JRC 048.  She concluded "that the sentencing Court did not have sufficient regard to the accepted basis of sentence and the mitigation in his case". 

The Law

9.        It is agreed that the principles which apply upon an appeal were summarised by the Court of Appeal in the case of Harrison v AG [2004] JLR 111 where it is held that the appeal court would not normally interfere unless:-

"(a) it was not justified by law; (b) it was passed on the wrong factual basis; (c) some matter had been improperly taken into account or some fresh matter needed consideration; or (d) the sentence was wrong in principle or manifestly excessive"

And we are concerned here with the latter, namely whether the sentence imposed by the sentencing court was "manifestly excessive".

10.      In Harrison the Court of Appeal referred with approval to this passage from the Morgan-v-AG [2001] JLR 225:-

"It is not the function of this court to tinker with sentences which were well within the range open to the sentencing court simply because we might ourselves have fixed a lower level of imprisonment"

Decision

11.      In our view nothing can be read into the discussion that took place at the sentencing hearing on the Valler uplift.  The Bailiff raised the point and having been addressed by counsel, no Valler uplift was applied by the sentencing court.  Nor do we think it can be said that the sentencing court failed to give consideration to all of the heads of mitigation.  It accepted the discount put forward by the prosecution and increased it.  That discount had already taken into account all of the mitigation referred to by the prosecution, which we have just read out, and was not incumbent on the sentencing court to list out again.  In giving that extra discount the court said this at paragraph 9:

"9.      We allow that extra discount just to give extra recognition to the co-operation which you gave the police by providing your pin number and your telephone and also taking into account the delay which your counsel has mentioned which was lengthy but is not excessive for most people certainly not for adults.  In the case of somebody of your age we think that it is something that can be taken into account."

12.      We have considered the authorities put forward by Advocate Morley-Kirk and the prosecution's response to them, an exercise which involves an analysis of the differences between those cases and this case.  We do not find this to be a fruitful exercise and we have been reminded by Crown Advocate Yates of these comments of the Court of Appeal in Rimmer v AG [2001] JLR 373 at paragraphs 12 and 13:-

"12     Before coming to the Campbell guidelines, we consider it appropriate to cite and endorse part of the judgment of this court in Wood v. Att. Gen. (9). Wood was decided before Campbell, but what was said in Wood applies today just as much as in 1994. This court said:

"It is necessary to refer to earlier cases when dealing with appeals against sentence in order to ensure, as far as possible, that the right degree of consistency is achieved between one case and another. Indeed, it is for this purpose that both this court and the Royal Court have, on occasion, when passing sentence, not only dealt with the particular offender before them, but have also laid down guidelines to be followed in subsequent cases.

It is necessary and important, however, to remember that reference to earlier cases is made in order to see the principles and guidelines which have been laid down there and to follow them.

The purpose of referring to earlier cases is not to analyze the exact sentence which was then passed and the precise reasons why the court arrived at it. This would be an impossible undertaking since sentencing is a discretionary exercise in every case and the reports do not include every feature which influenced the court in exercising its discretion on earlier occasions.

We notice a tendency, particularly in appeals against sentence in drug-related cases, to try to calculate the exact effect given by the court in earlier cases to each factor and then to say that those effects must be reproduced in the case in hand. This is a misleading exercise since, as I have said, it is impossible from the reports to discover every consideration which influenced the court. It is also an exercise which, if it could be achieved, would be inconsistent with the discretionary nature of the sentencing function. That discretion, like all discretion, has to be exercised on proper grounds and with due regard to relevant principles but the important fact remains that in deciding upon the sentence in every case the court is exercising its discretion upon the facts of that case."

13       We add and similarly endorse this further quotation from the recent judgment of this court in Kenward v. Att. Gen. (6) (2000 JLR at 254-255):

"At this juncture we would like to make an observation about the utility of the reference by counsel in this area to other decided cases. Guideline cases of an appellate court are always of assistance, that indeed is their purpose. But a guideline case such as Campbell itself constantly refers to the principle, manifestly correct, that guidelines have always to be adapted to the facts of any particular case. It is therefore of limited utility to refer to decisions, particularly those of courts sitting at first instance, which are (or should be) applying those guidelines to the cases before them. Not only do such cases turn substantially on their own facts, the facts themselves available and taken into account by the court may not always appear on the face of the judgments, and a read across from one set of facts to another is often a vain exercise."

13.      We entirely accept that there have been cases such as those cited by Advocate Morley-Kirk where the court has been able to avoid a custodial sentence on the particular facts of those cases, but they are no more than that, namely decisions on those particular facts.  They are not guideline cases, and do not lay down any kind of accepted basis for sentencing or illuminate principles for sentencing to be applied.  It cannot be contended and is not contended that for these offences a sentence of imprisonment was wrong in principle.  It accords with the clear policy of the court and the guideline cases.  The sentencing court was right therefore to focus on whether imprisonment could be avoided under the Young Offenders legislation, namely that the "the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified".  The sentencing court clearly considered this very carefully and took into account:

(i)        The prolonged period of offending

(ii)       The appellant had become the 'go to person' for drugs of different kinds including Class A drugs supplied by him in work to school friends.

(iii)      The appellant was prepared to look for cocaine as well as dealing in ecstasy.

(iv)      The appellant is still taking cannabis and therefore breaking the law.

14.      We do find this a very sad case both for the appellant and for his family who are in court, but this is an appeal court, and we find that there are no grounds upon which we can say that the sentence that was imposed by the sentencing court was manifestly excessive. It was well within the range open to the sentencing court.

15.      Leave to appeal is therefore refused.

Authorities

Bonnar and Noon v AG [2001] JRL 626. 

Criminal Justice (Young Offenders) (Jersey) Law 2014. 

AG v Gill [2018] JRC 196. 

AG v G [2018] JRC 166. 

AG v Riley [2014] JRC 248. 

AG v Botting and Moore [2016] JRC 005. 

AG v Webb [2018] JRC 048. 

Valler v AG [2002] JLR 383. 

Rimmer v AG [2001] JLR 373.

Harrison v AG [2004] JLR 111. 

Morgan v AG [2001] JLR 225