Jersey Unreported Judgments

Criminal - application for leave to appeal sentence imposed by the Inferior Number on 5th July, 2013.

[2013]JRC233

Royal Court

(Samedi)

(Exercising the appellate jurisdiction conferred on it by Article 22 of the Court of Appeal (Jersey) Law 1961.

25 November 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher, Kerley, Nicolle, Crill and Liston.

Philip James Brian McFeat

-v-

The Attorney General

Application for leave to appeal to the Superior Number of the Royal Court against the sentence passed by the Inferior Number on 5^th July, 2013, following a guilty plea to the following charge:

1 count of:

Assisting another to retain the benefit of drug trafficking, contrary to Article 37 of the Drugs Trafficking (Jersey) Law 1988 (Count 1).

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

Advocate T. V. R. Hanson for the Appellant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an appeal against sentence of 18 months' imprisonment imposed by the Royal Court on 5^th July, 2013, on one count of assisting another to retain the benefit of drug trafficking, contrary to Article 37 of the Drugs Trafficking Offences (Jersey) Law 1988. 

2.        The circumstances of the offending were said by the Crown at the time of sentence to be these.  Money laundering effected by the appellant was done in two ways.  The first method was the exchange of sterling and Euros at various post offices through the Island.  On each occasion the three defendants, that is the appellant and his two co-accused, ensured that the amount of cash that they were changing was below the threshold which might have prompted a suspicious transaction report.  This sometimes necessitated many visits to different post offices over the course of a day in order to exchange all of the money that they had been given.  The second method involved the loading of money onto prepaid travel cards.  These cards enable the movement of cash between countries; they are issued in an individual's name and the applicant must provide identification when the card is set up. However, as along as the person has the appropriate multi-digit number cash can be loaded onto a card that is in the hands of a third party in another jurisdiction who, in turn, can withdraw the money from the card.  The appellant had set up one card in his name.  The Crown alleged that over a 34 month period the appellant had exchanged over £74,000 into Euros and loaded over £5,500 onto the prepaid card in his name. 

3.        The defence submissions before the Royal Court were, in so far as material, these.  Advocate Harrison, who was then acting for the appellant, said

"As to the amount of money involved it is accepted that it was a significant amount of money.  However, I would ask the Court to note that Mr McFeat did not initially suspect the money to be the proceeds of drug trafficking.  In addition Sir I would draw your attention to his comments at interview, summarised in the Crown's summary to the effect that he had been on a number of trips to Amsterdam over the years on the Indictment and that he had changed numbers of sterling to euros for his own use Sir.  That would be up to approximately £9,000." 

The social enquiry report also referred to the appellant's contention that the amount involved was not as high as £79,000.  When the Court passed sentence the Bailiff said this:-

"5 With those introductory remarks we turn to each defendant in turn and we first of all turn to McFeat.  You changed money into euros and loaded cash cards to a total of £79,853.  You did this over a 2½ year period.  There were regular payments and you have admitted that you realised that it was all very suspicious.

6. We have taken into account the mitigation which your advocate has put forward; you pleaded guilty; you do have previous convictions but most of them were when you were a teenager and the offences since then are of a different nature.  We accept you did it for a friend, Liam Norris, we have read the references and your letter of remorse and we have read the contents of the background report.  But in our judgment, particularly given the level of involvement and the amount involved and the period involved, there can be no alternative to imprisonment."

4.        The criticism which is now made before us is that the lower court did not refer to a difference between the two sums of £79,853 and what is contended by Advocate Hanson to be the correct sum of approximately £70,000, and that therefore the sentencing court proceeded on the basis of an incorrect statement of facts.  Accordingly it is said that this Court should not interfere, if it does, with the sentence by way of tinkering but instead by recognising that where a sentence has been imposed on a basis of fact which is not correct, there can be a genuine sense of grievance, which the defendant suffers, and therefore it is right to reflect that in making an appropriate adjustment to the sentence. 

5.        Advocate Hanson, who has said everything that could properly be said on this appeal, accepts that the test we should apply is that of materiality.  The sentencing court did not refer to the difference.  But if the same sentence would have been imposed, whatever total figure had been laundered, the fact that the sentencing court did not refer to it is, in our judgment, neither here nor there.  And indeed, the Court thinks that the difference was not at all significant or material in this case. 

6.        First of all the Indictment itself does not mention a figure.  The charge is simply that of drug trafficking and no amount is quantified.  Secondly, defence counsel himself accepted that the amount was "significant".  Thirdly, the fact that there was no defence request to resolve the difference between the appellant's contention and the Crown contention shows that the defence, in our judgment, did not consider that difference was material.  And fourthly, if one looks at the case in its totality before the sentencing court it is clear that the co-accused, Mr Smyth, was sentenced to 12 months' imprisonment for laundering £33,611.  The offence of drug trafficking, in our judgment, does not call for a sentence which is mathematically calculated but the sentence imposed on Smyth was broadly proportionate to the sentence which was imposed on this appellant, and indeed, it could be said, that this appellant did rather well by receiving a sentence of only 18 months' imprisonment for an amount involved which was very nearly twice the amount which was involved in the offences committed by Smyth. 

7.        In our judgment, the lower court was right to look at the offending upon the basis that it was committed over a period of some 2½ years and involved a significant sum of money.  There was an amount of detailed material and analysis put before us by counsel.  We are grateful for that but we do not seek to resolve the differences between the two approaches.  For the purposes of considering this appeal we have assumed that in favour of the appellant, and therefore we have assumed that the amount laundered was £70,000 and not £79,000 and we assume that without deciding it.  Even so, for the reasons I have given, the appeal is dismissed. 

Authorities

Drugs Trafficking Offences (Jersey) Law 1988.

AG-v-McFeat Smyth and Howard [2013] JRC 137.