Morris-v-AG (Royal Court : Appeal (Criminal)) [2025] JRC 022 (22 January 2025)

JUDGMENT THE COMMISSIONER: DECISION 1. On 17 December 2024, we gave a short judgment allowing this appeal. The following are the full reasons for our decision. 2. This was an appeal against a sentence imposed by the Magistrate on 27 November 2024 in relation to one offence of importation of a Class A drug, namely cocaine. The Magistrate imposed a sentence of 6 months' imprisonment. 3. The main grounds of appeal were that the decision to impose a custodial sentence and disregard the alternative non-custodial options was wrong in principle and that the decision to impose the sentence of 6 months imprisonment was manifestly excessive, the Magistrate having given undue weight to the sentences imposed by the Magistrate's Court in two cases where the quantities of drugs were greater. 4. The brief facts of the offence were that the Appellant was stopped by Customs following his arrival in Jersey on the Condor Islander from Portsmouth on 12 November 2024. He was a passenger in a van being driven by another male and was travelling to Jersey to carry out shop-fitting at a local shop. The Appellant's phone was swabbed and gave a positive reading for cocaine. He was arrested and transferred to the custody suite. In custody, a Customs Officer observed some receipts in the Appellant's shoe and upon examination found a self-seal deal bag of white powder concealed in the receipts. We were told that the initial disclosure served prior to the first court hearing referred to this as weighing approximately 1 gram, including the packaging, and that it had field tested positive for cocaine. The disclosure also indicated that an analyst's report, which would have identified the weight of the drug without packaging, would take approximately 6 weeks. 5. The Appellant was interviewed the same day, having declined legal representation. He made full admissions in his interview, accepting that he knowingly imported the cocaine for his personal use. He was candid in the interview in that he informed the interviewing officers that he had purchased the cocaine for £30 in Leicester and had consumed some in a service station prior to bringing it on the ferry. He had placed the self-seal bag in his shoe with some receipts, only remembering it was there when he had been stopped by customs and taken into custody. He provided his pin code for his phone in interview and signed a bank disclosure authority. 6. The defence made a request to the prosecution in advance of the sentencing hearing for Customs to weigh the cocaine without the packaging to confirm the weight. The prosecution confirmed that Customs would not do this, and that an analyst's report could not be obtained for the listed sentencing hearing. In order to avoid any further delay, the Appellant chose not to make an application to adjourn the sentencing hearing. The Appellant was therefore sentenced on the basis that the weight of the drugs was "approximately 1 gram". 7. The analyst's report, which was filed after the sentencing hearing, confirmed that the cocaine in fact weighed 0.631 gram. The analyst was unable to provide a percentage purity due to an "insufficient sample for quantification". The lowest band in the Rimmer guidelines ( Rimmer v AG [2001] JLR 373 ) starts at 1 gram. It had therefore become clear after the Appellant was sentenced that the amount of drugs imported in this case fell below that amount. The Appellant therefore argued before us that this Court should disregard the Rimmer starting point of 7 years. The proceedings in the Magistrate's Court 8. When he first appeared at the Magistrate's Court on 13 November 2024 from custody the Appellant, at that time represented by the Duty Advocate, entered a guilty plea. Bail was refused and the matter was adjourned until 27 November 2024 for sentence. 9. For the purposes of the sentencing hearing a Pre-sentence Report ("PSR") had been prepared. The report noted that the Appellant was a first offender, had a good work ethic and that his use of cocaine arose from his habit of using the drug as a stimulant to keep him awake when asked to work long hours. 10. The Probation Officer stated that he had made enquiries with Leicester Probation (the Appellant's local service) to see if a community service order could be supervised by them. Despite several phone calls and emails, he was unable to confirm the position when he filed his report. The PSR therefore made the following recommendation: "Mr Morris is hopeful that a custodial sentence can be avoided to enable him to return immediately to his family. As mentioned in paragraph 32 I have been unable to contact Leicester Probation to organise for a period of Community Service to be supervised by that Service. Given this is his first period of custody, the court may wish to take this into account and consider binding him over for three years to leave Jersey. Mr Morris would consent to such an Order." 11. At the start of the hearing, the Magistrate asked the Prosecutor whether the Attorney General had issued a new directive regarding how importation cases should be dealt with following the Court of Appeal decision in AG v Le Guillou [2024] JCA 204, as she was of the view there had been an inconsistent approach in recent cases. The Magistrate suggested that the Magistrate's Court should consider issuing its own guidelines. 12. The defence drew to the Magistrate's attention that the Solicitor General had submitted, on the Attorney General's behalf, in the case of AG v Grzegorska [2024] JRC 151 (at para 63) and repeated in AG v Le Guillou (at para 39) the following: "There may ... be a public interest to be served by (a) addressing through a non-custodial disposal purely personal drug use by Jersey residents trafficking for personal consumption and (b) dealing summarily with non-Jersey resident traffickers of small quantities for their personal use while visiting Jersey through a financial penalty imposed by the Magistrate, together with the additional possibility of them being bound over to leave the Island and not to return for a stipulated period." 13. Both the prosecution and the defence brought to the attention of the Magistrate the issue by the Attorney General of new guidelines for Centeniers, in October 2024, that enabled them to deal with cases involving importation of personal amounts of cocaine of up to 2 grams at Parish Hall level with the consent of the Attorney General. 14. The Magistrate stated that " This Court is clearly governed by the view of the Court of Appeal, not the Attorney General" . 15. Defence counsel submitted that given the apparent flexibility in sentencing for importation of small amounts the Magistrate should consider a non-custodial sentence, the first of which would have been community service but accepted that as a non-Jersey resident and there being no evidence that it could be supervised in Leicester, this was not an option. Accordingly, she suggested alternatives, being the imposition of a prison sentence equivalent to the time served on remand, a suspended sentence, a binding-over order on condition of leaving the island or a financial penalty. She did however recognise that the Magistrate might not regard a financial penalty as marking sufficiently the seriousness of the offence. 16. Having retired to consider her sentence the Magistrate stated that as the amount was small the starting point was a sentence of seven years' imprisonment. Applying the full one-third credit for a guilty plea would reduce that to four and a half years. A further reduction would be appropriate given that the quantity of cocaine was small and that it was for personal use. She noted that until recently such a case would have been sent to the Royal Court, adding that: "My understanding is that the Royal Court has confirmed that this Court has a considerable discretion when deciding how much to reduce that four and a half years by, and I agree that that is where we should be looking, but we should still be looking at a custodial sentence in my view." 17. In relation to the suggestion of a binding-over order on condition of leaving the island, she expressed the view that this would send "completely the wrong message to other people who might think, as you did, that they can casually come into the island with personal amounts of a Class A drug and then all that is going to happen to them is that they will be sent home at public expense. You will be going home anyway". 18. The Magistrate further suggested that it would be "very unfair on residents to do that, because the argument would be that a local person would suffer considerably. They might go to prison, at least have community service; whereas a non-resident will just be turned round and sent home, and that in my view is not fair" . 19. In respect of a financial penalty, the Magistrate stated that it would "not adequately meet the seriousness of the offence" adding that "In my view, this case remains above what we call the custodial threshold. It is serious enough for custody. The Court would only suspend the sentence where there are really exceptional circumstances - for example if somebody was very ill, or very old. But to say that the sentence should be suspended because you have a young family is not grounds, in my view, to suspend the sentence" . 20. The Magistrate accordingly imposed a custodial sentence of 6 months, noting that she had taken into account the Appellant's early guilty plea, the very small quantity of cocaine, his personal mitigation and the fact that he had no previous convictions. The starting point and custody issue 21. It is clear from the discussion between the Magistrate and counsel that there was some doubt as to the impact of recent Superior Number and Court of Appeal decisions upon the sentencing practice in the Magistrate's Court for offences concerning the importation of small amounts of cocaine for personal use. 22. In Rimmer v AG [2001] JLR 373 , the Court of Appeal had stated that: "We consider that the appropriate course is to give bands of starting points by reference to the weight of drugs, adjustment being made within these bands to take account of the role and involvement of the defendant, and of other less significant factors including street value." 23. In relation to the bands in respect of heroin, cocaine and other Class A drugs carried or sold in powder form, the Court of Appeal identified a band of 1 to 20 grams in respect of which a starting point of 7 to 9 years' imprisonment was appropriate. There was no mention of a specific starting point in respect of amounts that weighed less than 1 gram. 24. In a decision of the Superior Number delivered on 4 July 2024 in AG v Grzegorska [2024] JRC 151 , the Superior Number re-visited the policy of the Courts in respect of sentences of imprisonment imposed in cases concerning the importation of quantities of less than 10 grams. 25. This followed a direction by the Superior Number in AG v Le Guillou [2024] JRC 010 on 15 January 2024 that: " the Attorney General lists the next sentencing case in which trafficking, importation, possession with intent to supply or being involved in the supply of less than 10 grams or 10 units of a Class A drug be listed before the Bailiff or Deputy Bailiff, and no less than 7, preferably 9 Jurats, for a review of the starting points applicable under the Campbell v AG [1995] JLR 136 , Rimmer v AG [2001] JLR 373 and associated guideline cases." 26. In AG v Grzegorska, the Superior Number held that: "We have considered this matter with care, and we have unanimously concluded that for weights of Class A drugs up to 10 grams, the starting point henceforth will be one to seven years The guidelines in Rimmer have been supplemented to this extent only." 27. The Court also noted that - " the guidelines developed in Campbell and Rimmer were principally designed to deal with trafficking on a commercial basis, as the circumstances of the cases before the Court of Appeal in Rimmer and the comments of the Court of Appeal in these cases demonstrate." 28. The Attorney General subsequently referred the Superior Number's decision in AG v Le Guillou to the Court of Appeal, who delivered their judgment on 9 October 2024, three months after the Superior Number's decision in AG v Grzegorska . In that judgment, reported as AG v Le Guillou [2024] JCA 204, the Court of Appeal stated: " ..we indicated that we wanted to be addressed on whether the intention in drug trafficking cases to use the drugs personally or for social supply goes to personal mitigation or should be reflected in the starting point as part of the assessment of the seriousness of the offending. The reason for asking to be so addressed lies firmly in the decision of this Court in Shahnowaz v Attorney General [2007] JLR 221 ." 29. The Court of Appeal noted that in Shahnowaz v AG the Court had concluded that: "i) The Rimmer guidelines applied to all cases of importation, whether for personal use or otherwise). ii) Nonetheless, where the importation was for personal use, that could be personal mitigation taken into account in reducing the sentence from the starting point identified by the guidelines." 30. The Court of Appeal went on to note that in AG v Gzregorska , the Superior Number considered the purpose for which the drugs were imported to be a factor going to starting point rather than to mitigation and had also sought to reduce the prospective starting points in some cases where the importation was up to ten grams of a Class A drug. In this respect the Court of Appeal held that: "It seems to us in short, with respect to the Royal Court, that where the importation was for personal use only, it was quite unnecessary to reduce the starting point. That mitigation could be taken into account and give rise to a sentence as the Royal Court (or perhaps, as may be settled in guidelines issued by the Magistrate in consultation with the Royal Court, the Magistrate's Court) thought appropriate in all the circumstances, subject of course always to the ability of the defendant, or the Attorney General on a reference, to appeal to this Court. The flexibility which the Royal Court clearly desires, as expressed in Grzegorska, already existed and we would therefore not endorse the variation in the Rimmer guidelines as proposed by the Superior Number. In so saying, we recognise the view of a majority of the Jurats of the Royal Court that where there is an importation of Class A drugs for personal use there should be sufficient flexibility that might enable the court to impose a low custodial or even a non-custodial sentence. In our judgment, while it follows from leaving the Rimmer guidelines undisturbed that the custodial threshold is undoubtedly passed in all these offences, the mitigation for personal use is capable in principle, in an appropriate case, of enabling a non-custodial outcome by a reduction from the Rimmer starting point that other sentencing options become possible." 31. The result of the Court of Appeal's decision in AG v Le Guillou is that in a case such as the present in respect of the importation of a small quantity of Class A drugs for personal use the 7 year starting will apply and in the event of a guilty plea the sentence would be in the region of 4½ years' imprisonment before further mitigation is considered. It may seem curious that such further mitigation could have the effect of reducing the actual sentence passed from 4½ years to a custodial sentence which is within the Magistrate's sentencing powers or even a non-custodial penalty. However, we understand the Court of Appeal to be saying no more than that in such circumstances, whilst the custodial threshold will have been passed, there is a far greater degree of flexibility available in terms of the nature and length of the sentence imposed than in the case of the importation of larger amounts or of drugs intended for supply. Factors personal to the defendant may well have a more significant effect at the lower end of the Rimmer bands. Application of the guidelines to the present case 32. In the light of the above, we find that the Magistrate correctly identified the starting point as being one of 7 years and that accordingly the custodial threshold had been passed. Given the limited non-custodial options that were available to her we cannot say that a sentence of 6 months' imprisonment was wrong in principle or manifestly excessive. Ordinarily, that would have resulted in our dismissing the appeal. However, there are further factors which caused us to decide to vary the sentence passed. Change in circumstances 33. Subsequent to the sentencing hearing, and before the hearing of the appeal, two new factors emerged. 34. First, the analyst's report showed that the actual weight of drugs was 0.631 grams. This was proportionately significantly less than the approximation of 1 gram that had been considered by the Magistrate. 35. Second, the Jersey Probation Service received a communication from the Leicester Probation Service confirming that they would be able to "caretake" a community service order in Leicester, to report back on compliance to the Jersey Probation Service, albeit that "the order would remain within the jurisdiction of Jersey with compliance issues being dealt with through the Jersey Courts". 36. The position taken by the Respondent in relation to these changed circumstances was, quite properly in our view, that if this Court were minded to allow the appeal on the basis that these were fresh matters that ought to be taken into account, and to impose either a non-custodial penalty or a community service order as a direct alternative to custody or reduce the sentence, the Respondent would not seek to dissuade it from doing so (having regard to the Appellant's plea, good character and personal mitigation). 37. We have already noted that the Magistrate found her sentencing options limited, in particular as a result of the inability to impose an order for community service. Given that the Magistrate clearly took the view that the custodial threshold had been passed it is likely that she might well have made such an order had it been an available option, particularly in the light of the now reduced weight of the cocaine. 38. In the circumstances we set aside the sentence of 6 months' imprisonment and, considering the time already spent on remand, substituted an order for 90 hours' community service, being the equivalent of a 3 month sentence of imprisonment, to be supervised by the Leicester Probation Service. Authorities Rimmer v AG [2001] JLR 373 AG v Le Guillou [2024] JCA 204. AG v Grzegorska [2024] JRC 151 AG v Le Guillou [2024] JRC 010 Shahnowaz v AG [2007] JLR 221 Page Last Updated: 05 Mar 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII