Jersey Unreported Judgments

[2003]JCA202

COURT OF APPEAL

 

                                                            12^th November, 2003.

 

 

Henry Samuel Evans

-v-

The Attorney General

 

Application of Henry Samuel EVANS for leave to appeal against a total sentence of 5 years' imprisonment passed on him on 10th July, 2003, by the Superior Number of the Royal Court, to which he was remanded by the Inferior Number on 28th May, 2003, following conviction on:

 

1 count of:	supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978 count 2:  cannabis resin, on which count a sentence of  21 months' imprisonment was passed; and
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 3:  cannabis resin, on which count a sentence of 5 years' imprisonment, concurrent,  was passed

 

The application for leave to appeal placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.

[On 28^th May, 2003, the Crown withdrew counts 1 and 4 of the indictment; the remaining counts on the indictment relate to a co-defendant, who has not appealed.]

[On 12^th November, 2003, the appellant abandoned an application for leave to appeal against conviction.]

 

 

Advocate Mrs. S.A. Pearmain for the Appellant;

T.J. Le Cocq, Esq., Crown Advocate.

 

 

JUDGMENT

 

 

VAUGHAN JA:

 

1.        Henry Samuel Evans was convicted on 28^th May 2003 after his trial before the Inferior Number of the Royal Court on two counts.  The first count (Count 2) being for supplying a controlled drug contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 and the second (Count 3) for being in possession of a controlled drug with intent to supply contrary to Article 6(2) of the same Law.  The drug in each case was cannabis resin, on the first count relating to 4 nine bars of cannabis resin and the second count a further 43 nine bars.  Subsequently on 10^th July 2003 he was sentenced by the Superior Number to a term of imprisonment of 21 months on the first count and a term of imprisonment of 5 years on the second count to run concurrently.  The Superior Number also determined that Henry Evans had benefited from drug trafficking in the sum of £47,000 and made a confiscation order in that amount.  Mr. Evans originally sought leave to appeal against his conviction but on 12^th November 2003, just before the application for leave to appeal was called on, he gave notice to the Court that he did not intend to pursue his application for leave to appeal against his conviction.

2.        The basic facts are that Henry Evans was a self-employed builder retained by the States of Jersey Housing Department.  He rents his home at Mon Reve, Victoria Avenue, First Tower and also a builders' yard off Chemin de Gargate in the Parish of St. Peter.  On 24^th June 2003 Mr. Evans, who was subject to police surveillance at the time, drove in his motor vehicle from his home to the builders' yard and, having stopped there for a short while, subsequently drove into St. Helier where at about 11 a.m. he drove into a car park next to Journeaux Court in Journeaux Street.  He parked his car there and then waited.  A little time later he was seen talking into his mobile phone to someone and gave directions as to how to get to the car park.  It subsequently transpired that the telephone call was to a Mr. Le Maistre.  A few minutes later Mr. Le Maistre arrived by car and joined Mr. Evans in the front seat of Mr. Evans' car.  They had a conversation.  Mr. Evans went to the rear of his car and carried a black bin liner from the boot into the car.  The conversation continued and both were seen to be looking at the well of the car where the bin liner was.  Mr. Le Maistre got out of the car with the bin liner and then both were arrested.  The bin liner was found to contain 4 nine bars of cannabis and there was found to be £850 in cash in Mr. Evans' car.  Mr. Evans subsequently admitted the £850 came from Mr. Le Maistre.  A subsequent search of the builder's yard rented by Mr. Evans revealed that in one of the containers occupied by Mr. Evans there were seven complete and one part complete nine bars, which were also in a black plastic bin liner.  A further search revealed an additional 36 nine bars which were hidden under a wheelbarrow in another black plastic bin liner.  The cannabis found in the car park and some of that found in the yard were found to have the same stamp on it, which was a stamp which had not previously been found in Jersey.  The street value of the nine bars supplied to Mr. Le Maistre was approximately £5,760 and the remainder had a street value of approximately £60,000.

3.        Mr. Evans was sentenced by the Superior Number on 10^th July 2003 to a term of imprisonment of 21 months on the first count and 5 years on the second count, both sentences to run concurrently.  It is contended on behalf of Mr. Evans that the sentence of imprisonment was manifestly excessive.  The confiscation order is not challenged.

4.        The counts in relation to which Mr. Evans was found guilty related on the first count to 984.64 grams and 10,852 grams in relation to the second count.  Applying the guidelines in Campbell (1995) JLR 136 the relevant starting point for a quantity of cannabis of over 10 Kg would be a minimum of 6 years, and for a quantity of 1 Kg or over the starting point would be 2 years.  These were the starting points which were in fact adopted by the Court.  There is no express starting point for a quantity (as here in relation to the first count) which fell minimally below 1 Kg, but we see no reason why a starting point of less than 2 years should be appropriate, notwithstanding the contention on behalf of Mr. Evans, that there should be a starting point of less than 2 years.  There can be no strict mathematical correlation or proportionate reduction for every gram under 1 Kg.  In any event the 4 bars were intended to weigh 1 Kg.   Accordingly we do not consider that the starting point on either count can be faulted.

5.        When Mr. Evans was sentenced the Court made it clear that it was proceeding on the basis advocated by the Crown Advocate, and that it considered that it was giving as much credit for mitigation as possible.  The relevant factors which it took into account were his age (he was 52 years old), his working record over that period was exemplary, and his good character.  Accordingly the starting point of 2 years was reduced by a discount for the available mitigation to 21 months, and the starting point of 6 years was reduced to 5 years.  It is contended that the periods of reduction in each case were too small.

6.        It is now contended by Mrs. Pearmain on behalf of Mr. Evans that a greater reduction should have been made and that this Court should additionally take into account his present remorse (which was obviously not available for him to rely on when he was denying his guilt and seeking leave to appeal against his conviction) and the fact that he was to obtain no financial benefit from his dealing in cannabis and that his personal use of cannabis was to counteract the effect of his arthritis.  We do not consider that remorse at this late stage can have any effect on his sentence, and the other matters relied on are wholly unsupported by evidence or medical certificates.

7.        It is no part of the role of this Court to substitute its own view of the appropriate reduction for that allowed by the sentencing Court, unless the resulting sentence is manifestly excessive.  However not only do we consider that such a contention has not been made out in this case, but we consider that the reduction made by the sentencing Court for the mitigating factors was wholly appropriate.  Accordingly we dismiss Mr. Evans' application for leave to appeal against his sentence.

8.        In accordance with the provisions of Article 35(4)(b) of the Court of Appeal (Jersey) Law, 1961, we direct that no part of the time during which the appellant when in custody was specially treated as such in pursuance of prison rules shall be disregarded in computing the term of his sentence.

Authorities.

Campbell & Ors-v-AG [1995] JLR 136.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp.111-114.