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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Hagin v AG 30-Nov-2020 [2020] JCA 247 (30 November 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_247.html Cite as: [2020] JCA 247 |
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Drugs - application for leave to appeal against sentence.
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Before : |
James McNeill, Q.C., President; |
Benjamin Robert Hagin
-v-
Her Majesty's Attorney General
Application for leave to appeal by Benjamin Robert Hagin against the sentence imposed by the Superior Number of the Royal Court on 4th August 2020 on:
6 counts of: Removing criminal property from Jersey, contrary to Article 31(1)(d) of the Proceeds of Crime (Jersey) Law 1999 (Counts 1 to 4, 6 and 11).
5 counts of: Offering to supply a controlled drug to another, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Counts 5, 7, 8, 9 and 10).
1 count of Possession of criminal property, contrary to Article 30(1)(c) of the Proceeds of Crime (Jersey) Law 1999 (Count 12).
1 count of: Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 13).
Advocate I. C. Jones for the Appellant
C. R. Baglin, Esq., Crown Advocate
JUDGMENT
Storey JA:
1. This is the judgment of the Court.
2. The Appellant applies for leave to appeal against the sentence of four years' imprisonment imposed by the Royal Court on 4 August 2020. The reasons for the sentence were set out in a judgment of 3 September 2020. The sentence accorded with the Conclusions of the prosecution.
3. The Appellant was aged 24 at the time of the offences and is now 26. He had 21 previous convictions including possession of a Class B drug (cannabis) in 2010 and being concerned in the importation of a Class B drug (cannabis) in 2013 for which he received a probation order of six months.
4. The brief circumstances of the Appellant's 13 offences are as follows. On 7 April 2019 States of Jersey police officers searched the Appellant's flat and seized cannabis (55g), cannabis resin (3.8g), £2,690 in cash, £10,000 in a package bearing a Liverpool address, drug grinders, scales, post office receipts, lists and a notebook containing names and figures. It became clear that between December 2018 and April 2019 the Appellant had sent £53,790 cash in six separate packages to the UK. The Appellant's mobile phone records evidenced five offers to supply cannabis during March and April 2019.
5. The seven money laundering offences involved the Appellant, over a four month period, collecting cash (on instructions from UK suppliers) from Jersey drug users/buyers or third parties, minding it, wrapping it and passing it on locally or posting it to those UK suppliers. The Appellant had assumed the money related to the sale of cannabis. His 2½% fee was a reduction in debts the Appellant had accumulated to sustain his own drug habit.
6. The judgment of the Royal Court (AG v Hagin [2020]JRC 176) summarised the matter thus:
7. The Appellant had pleaded guilty to all counts on the indictment on 15 May 2020.
8. Prior to the hearing the Crown served its Summary of Facts and Conclusions on the defence in the usual way.
9. Advocate Baglin invited the Royal Court to consider AG v Goodwin [2016] JRC 165 at paragraphs 4 - 7 when sentencing for money laundering offences:
Sentencing policy had moved on from that in AG v Michel [2007] JRC 120 and AG v Bhojwani [2010] JRC 116 because "the evil of money laundering generally receives an increasing focus in the international community and ... it is right that this Court should reflect that in the sentences which it passes" (18).
10. The Appellant's predicate offence was drug trafficking, probably of cannabis. In Campbell v AG [1995] JLR 136 this Court set out the appropriate starting point for importing or offering to supply 1 - 10kgs of cannabis as 2 - 6 years, which would equate to 42 months' imprisonment for 4.4kgs, the approximate amount of cannabis which could be bought for £66,480, the cumulative amount of money which the Appellant had sent or was about to send to the United Kingdom.
11. In paragraphs 3 and 16 - 18 of the Crown's Conclusions it was contended that the Appellant "was integral to the operation", was "trusted", and "undertook a vital role in an organised crime group that was dealing large amounts of drugs in the Island". The Appellant's role was "pivotal".
12. Advocate Baglin also invited the Royal Court to consider AG v Gilbraith and Rawlinson [2017] JRC 155 when sentencing for the offences of offering to supply cannabis.
13. The Crown moved for concurrent sentences for the money laundering offences and concurrent sentences for the supply offences, but the latter should be consecutive to the former. The Crown's starting point was five years and it contended for a sentence of three years' imprisonment for money laundering and twelve months consecutive for supply (and no separate penalty for possession of 3.8g of cannabis resin).
14. Advocate Dix appeared for the Appellant and put forward mitigation of guilty pleas, alleged cooperation during interview, a letter of remorse from the Appellant and positive references from family members and others. Advocate Dix accepted that the fact that the Appellant claimed to have acted as he did by reason of threats from his unpaid supplier(s) was not capable of amounting to mitigation (23 and 26). Advocate Dix relied upon a Social Enquiry Report dated 28 July 2020 in which the author recorded that the Appellant did not dispute the Crown's Summary of Facts (apart from a few details). The Appellant was assessed as a "moderate risk of reconviction". It was recorded that the Appellant "is expecting to receive a custodial sentence" but that should the Court feel able to impose Community Service such was available.
15. The Royal Court (at 6, 9, 21, 23, 25, 28, 29 and 30) adopted the Conclusions of the Crown and followed the principles set out in Goodwin (repeated at paragraph 9 above). It fixed a starting point for the money laundering offences at five years' imprisonment, having earlier referred (at 18) to what would have been the starting point for the predicate drug trafficking offence, 2 - 6 years' imprisonment. As to Advocate Dix's contention that a five year starting point was too high, the Court stated that the calculation of an appropriate starting point "was not an exact science" (23 and 28). The sentence had to reflect that the Appellant "was trusted by those higher up the drugs dealing chain with handling substantial amounts of money on their behalf accumulating it and sending it as ordered. He was also involved in the supply of drugs" (25). He therefore had knowledge of the predicate offence and was paying off his own drugs debt. He still had at least £2,500 more to pay off:
"Money launderers encourage and facilitate the supply of drugs and they are an essential part of that trade. The [Appellant] was involved in it for a significant period of time and in substantial sums" (19, 25 and 29).
16. Further, in response to Advocate Dix's contention that the Crown's two year discount for personal mitigation including plea was insufficient, the Court was not satisfied that the Appellant had become free of drugs (24). He was not fully cooperative with the police (13 and 27) and could not be regarded as a victim (25).
17. As to the offering to supply 55g of cannabis, the Court found there to be no comparative cases (22) - although it did refer in passing to Advocate Baglin's citation of Gilbraith where twelve months' imprisonment would have been appropriate, but for special reasons, for an offer to supply cannabis by a defendant of good character. The Court agreed with the Crown's contention of twelve months' imprisonment consecutive (31).
18. The approach in this Court has been set out, comprehensively, in Harrison v Attorney General [2004] JLR 111, by Nutting JA at 31:
19. Advocate Jones, who appeared for the Appellant on the appeal, contends that the sentences of three years and one year imprisonment were manifestly excessive. He also criticised an alleged lack of reasoning for adopting the Crown's suggested starting point of five years, when the starting point under Campbell should have been 18 months less, namely 42 months. Advocate Jones accepted that the sentencing court can, having identified a point of departure, increase the starting point but he maintained that the Court must clearly identify its methodology if it does so. Advocate Jones contended that, even making allowance for the aggravating features in the case, the starting point "should have been no more than four years". He did not quarrel with the two year allowance for personal mitigation, and so his submission was that the sentence for money laundering should have been no more than two years' imprisonment. He also invited this Court to consider the alternative of Community Service.
20. Further, Advocate Jones was critical of any reliance on Gilbraith, a case where the defendant had pleaded guilty to two offences of being concerned in the making of an offer to supply Class A drugs and two offences of offering to supply Class A drugs, as well as one offence of being concerned in the supply of cannabis. Advocate Jones contended that if the Royal Court relied on Gilbraith it did not explain why. Advocate Jones referred us to AG v Price [2019] JRC 211 where the defendant had received from a Magistrate a sentence of eight months' imprisonment for possession of 312g of cannabis with intent to supply (reduced on appeal to Community Service on account of "special circumstances" and exceptional mitigation).
21. We are grateful to both Advocates for their helpful written and oral contentions.
22. We have not been persuaded that the sentences of three years or one year's imprisonment were manifestly excessive. The overall sentence of four years "falls well within the range open to the sentencing court". It is in line with AG v Rae and Spinola [2017] JRC 080 and Rae v AG [2017] JCA 197.
(i) Money laundering
23. The Royal Court was right to have regard to the factors listed in Goodwin in 2016 to reflect a change in sentencing policy for money laundering offences. This Appellant was not being sentenced for drug trafficking offences although the Court had to "have regard" to the predicate offences. A starting point of 42 months would have reflected no more than the relevant commercial quantity of cannabis. As was stated in Price at 27, the quantity of drugs is important but sentencing is not calculated on a linear basis according to the amount of drugs. The sentencing court has to assess a defendant's involvement in drug trafficking, and the weight of the drugs is one factor, though an important one, in that assessment. Advocate Jones accepted this. According to Campbell the sentencing policy for drug trafficking cases "is that offenders will receive condign punishment" (page 144 lines 14 - 16).
24. In the light of the aggravating features (the Appellant's pivotal role in a significant money laundering operation, his knowledge, the amount of money laundered, the duration, the Appellant's record and the need for deterrence), an uplift to a five year starting point for seven money laundering offences can be justified. The Appellant's role as a banker was integral to the continuing success of some UK drug suppliers maintaining a foothold in the lucrative drugs market in Jersey and receiving payment for cannabis supplied to dealers and users in the Island. As the two year discount for personal mitigation is no longer criticised, Advocate Jones conceded that if a five year starting point was appropriate, then the appeal would not get off the ground.
25. By reading the judgment of the Royal Court alongside the Crown's Conclusions it is possible to discern the reasoning behind a starting point of five years (see paragraph 15 above), so we are satisfied that the Appellant and his Advocate would be able to understand the rationale behind his sentence of three years' imprisonment for money laundering. In any event, Advocate Jones accepted that even if the Royal Court's reasoning was inadequate or incomplete, this Court could only allow the appeal if in fact the sentence was manifestly excessive.
26. However, best practice requires the Royal Court to incorporate into its own sentencing remarks any of the Crown's Conclusions or Summary of Facts it adopts because these two documents are not available to the public, media or legal practitioners. We appreciate this adds to the length of those remarks and increases the burden on sentencers, but it is necessary for the sound administration of justice in the Island's criminal courts.
(ii) Offering to supply cannabis
27. No criticism is made of the sentences being consecutive to those imposed for money laundering.
28. On a proper reading of paragraph 22 of the judgment, the Royal Court's reference to Gilbraith was not as a truly comparative case. There the defendant was convicted of being concerned in the making of an offer to supply Class A drugs but the prosecution accepted that the relevant circumstances were not akin to drug trafficking (see paragraph 3 and McDonough v AG [1994] JLR N7a). The offer to supply Class A drugs related to 25 tabs of LSD which were known to be dried out. The remaining offence of being concerned in the supply of an unknown quantity of cannabis received a sentence of Community Service "as an act of mercy" but a sentence of twelve months' imprisonment would have been correct in view of the defendant's good character and guilty plea.
29. The Appellant was convicted of five separate offences of offering to supply cannabis over a period of less than four weeks. With his previous conviction for being concerned in the importation of a Class B drug a sentence of twelve months' imprisonment cannot be described as manifestly excessive.
30. The sentence of four years' imprisonment was not so manifestly excessive that it was wrong in the circumstances of the case.
31. On 24 November 2020 we refused the Appellant leave to appeal against the sentence passed by the Royal Court under Article 24(1)(c) of the Court of Appeal (Jersey) Law 1961. The application for leave being dismissed the Appellant's sentence in the Royal Court stands undisturbed.
