Jersey Unreported Judgments

[2003]JCA052

 

COURT OF APPEAL

 

14^th March, 2003

 

 

Kenneth Paul Anthony PATRICK

-v-

The Attorney General

 

Applications for an extension of time within which to apply for leave to appeal and  for leave to appeal against a total sentence of 4½ years' imprisonment passed on 4th November, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 13th August, 2002, following a plea of guilty to:

1 count of:	being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law, 1999: count 1:  cocaine (on which count a sentence of 4 ½ years' imprisonment was passed).
1 count of	possession of a controlled with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1961: count 2:  cocaine (on which count a sentence of 4 ½ years' imprisonment, concurrent, was passed).

Application for an extension of time within which to apply for leave to appeal was refused by the Bailiff on 31st January, 2003, and on 10^th February, 2003, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the applications for an extension of time within which to apply for leave to appeal and for leave to appeal to the plenary Court.

 

Advocate R. Tremoceiro for the Appellant;

Mrs. S. Sharpe, Crown Advocate.

 

 

JUDGMENT

 

CAREY JA:

Introduction

1.        This is the judgment of the Court.  On 4 November 2002 the Applicant appeared for sentencing before the Superior Number of the Royal Court on an indictment containing two counts to which the Applicant had earlier pleaded guilty before the Inferior Number The first count alleged importation of a Class A Drug (cocaine) and the second possession with intent to supply of the same consignment of Class A Drug (61.44 grams of cocaine with a 39% purity). On each count he was sentenced to 4 ½ years imprisonment concurrent. The Importation charge was added as a result of the Appellant volunteering the fact that he had brought the drugs found in his possession into the Island. As the Royal Court appears to have done, we do not regard the admission to two offences as in any way aggravating the offending or calling for heavier punishment than cases where only one of these offences is charged. He now applies for leave to appeal out of time against the sentences imposed.

Application for Extension of Time

2.        This we grant. Although the application for extension of time and notice of application were filed in January, well outside the required period, Mr Tremoceiro has produced from the prison records a pro forma dated 13 November 2002, instructing the advocate to apply for leave. It was apparently faxed to the wrong address as the prison did not have Mr Tremoceiro's up to date fax number. This mix up is due to no fault of the Applicant.

 Circumstances of the Offence

3.        At 10.30 am on 20 June 2002 the Manager of a St Helier hotel discovered the Applicant, who had checked in the previous day, curled up in the public telephone box frothing at the mouth and banging his head against the kiosk.  Not surprisingly the Manager was concerned for the Applicant's health and arranged for an ambulance to be called.  The Applicant then became violent and started to punch out.  When asked whether he needed medication he replied: "I confess, please don't kill me, don't kill me."  He was then asked if he had taken anything and the Manager understood him to say that he had taken cocaine.  The Applicant was taken off to the Accident and Emergency Department.  Police officers attended at the room where he had been staying and the cocaine, the subject of this charge, was found in a wash bag in a holdall, which belonged to the Applicant.  He was later arrested and questioned.  He admitted bringing the cocaine from Birmingham concealed internally.  He was to be paid £1,000 for the trip when he handed the drugs over.  He declined to tell the officers to whom he was bringing the drug.  The applicant said that due to the fact that the drugs had become damp on the journey, he added some glucose powder in accordance with instructions he had received from his contact. He then went on to make himself a cup of coffee.  He decided to dip the two empty bags, which had previously held the drugs, into the cup before drinking it and this accounted for the condition in which he was found by the hotel manager.  He admitted that he had made a previous visit in which he brought over drugs, but that did not form the subject matter of any charge although it was taken into account in the drug trafficking investigation.  He was subsequently charged and brought before the Inferior Number of the Royal Court where he pleaded guilty.

The Conclusions.

4.        The starting point proposed by Crown Advocate Yates based on the guideline case of Rimmer, Lusk & Bade v AG (2001) JLR 373, was nine years and taking account of his previous good character and the references, his guilty plea and his co-operation, five years' imprisonment on both counts concurrent was sought. 

The Mitigation and the Court's Conclusion

5.        Advocate Tremoceiro seems to have raised everything that could have been raised on behalf of the Applicant.  He suggested this might be an exceptional case for parting company with the bands laid down in Rimmer & Others.  He emphasised the Applicant's previous good character at the age of 37.  He went through the reports and the references.  Advocate Tremoceiro had a degree of success in that he persuaded the Royal Court to come below the conclusions of the Crown Advocate and imposed sentences of four and a half years' imprisonment.  The Court accepted the genuineness of the remorse and the degree of co-operation and the admission of having brought the drugs to Jersey.  The Court remarked that this was a puzzling case as the Applicant was not apparently a drug addict and was not in debt.  He had been a successful self-employed gardener in the seventeen years he had lived in Jersey prior to returning to his native Scotland in December 2001. 

The Grounds of Appeal

6.        Advocate Tremoceiro has been hard pressed to find matters additional to those contained in his excellent mitigation below to urge upon this Court.  He has, however, concentrated again on the remorse, the good character and the co-operation of the Applicant. The Applicant said he had not fully appreciated the harm cocaine caused, which had been brought out when he got himself into the state in which he was found in the hotel.

The Judgment of this Court.

7.        We agree with the learned Deputy Bailiff, when recording the conclusions of the Superior Number, that this is a puzzling case.  However in our view there is a limit to how much weight can be given to the fact that the offender has been of previous good character, is not in debt and has no apparent need to earn £1,000 by bringing drugs to Jersey.  So often this Court is faced with applications from persons who are in debt, are drug addicts or who have felt under tremendous pressure to engage in smuggling drugs into this Island in a desperate attempt to get out of their dire personal circumstances.  If the Courts feel that there are limits on the amount of credit that can be given in such circumstances, likewise there must be a limit on the amount of credit that a person like the Applicant should receive.  The Applicant admitted an earlier importation. Whilst he is not to be punished for his candour, that admission precludes any suggestion that this was a one off act of extreme folly. We find the approach of the sentencing Court in an unusual and sad case impeccable. Any greater leniency would have breached the guidelines this Court has laid down. The Application for leave to appeal against sentence is refused.  A direction is made under Article 35(4)(b) of the Court of Appeal (Jersey) Law 1961, in respect of the full period of six weeks.

Authorities

Rimmer, Lusk & Bade v AG (2001) JLR 373.

AG-v-Le Maistre (2^nd May, 2000) Jersey Unreported; [2000/77].

AG-v-Simmons (24^th November, 2000) Jersey Unreported; [2000/233].

Wright-v-AG (12^th July, 1999) Jersey Unreported; [1999/125].