McCann v AG [2008] JCA 081 (22 May 2008)

COURT OF APPEAL nd May 2008 Before : Dame Heather Steel, DBE, President; M. S. Jones, Esq., Q. C.; and J. W. McNeill, Esq., Q. C. Richard McCann v The Attorney General Application for leave to appeal against the conviction at Assize on 12 th October, 2007, and sentence passed by the Superior Number of the Royal Court on 17 th December, 2007 on a not guilty plea to: 1 count: Conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999 . Applicant in person - Advocate D. S. Steenson as Amicus Curiae. Crown Advocate S. M. Baker Esq. JUDGMENT McNEILL ja : This is the Judgment of the Court. THE APPLICATION 1. Between 8 and 11 October 2007 Richard McCann was tried at a criminal assize presided over by Mr. Clyde-Smith, Commissioner. The indictment consisted of a single count of conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999 by conspiring with certain others to import some 268.73 grams of cocaine into Jersey from England. 2. McCann was one of three persons charged with that offence under the indictment. One, Gocoul, pleaded guilty immediately on indictment on 8 December 2006. McCann and the third, Gallichan, pleaded not guilty and were given bail. A trial was set for 5 March 2007 but re-arranged for 24 April 2007. That date was in turn re-arranged for 9 July 2007. On 6 July 2007 Gallichan changed his plea and gave a statement. On 9 July 2007, the morning of the trial, counsel for McCann withdrew on the grounds of professional embarrassment, McCann's bail was withdrawn and he was remanded in custody, where he remained until October 2007 when the trial took place. McCann was found guilty by the unanimous decision of the jury and remanded with Gallichan for sentencing by the Superior Number on 17 December 2007. 3. On that date in the Royal Court (Samedi Division) Mr. Clyde-Smith, Commissioner, sitting with Jurats sentenced the applicant to 8 years' imprisonment, sentenced Gocoul to 5 years' imprisonment and sentenced Gallichan to 240 hours' community service or 18 months' imprisonment in default. 4. The applicant now applies for leave to appeal conviction and sentence. LEAVE TO APPEAL CONVICTION 5. The grounds of appeal were presented by the applicant and Advocate Steenson appeared as amicus curiae. We wish particularly to state our thanks to Mr Steenson for the clarity and precision with which he presented the arguments for the applicant. The grounds of appeal can be summarised as follows: (i) A failure on the part of McCann's trial advocate to follow instructions to obtain evidence in relation to telephone calls; (ii) A failure by the trial advocate to cross examine in respect of certain evidence relating to telephone calls; (iii) A failure to put complete evidence to the jury in respect of a mobile telephone on which fingerprints as well the applicant's DNA had been found; (iv) A failure to obtain expert opinion in relation to handwriting; and (v) A failure to call and properly cross examine witnesses in respect of allegations of threats made to the applicant. 6. We are not persuaded that these are grounds upon which we would be justified in granting leave to appeal against the conviction. 7. As in the great majority of such cases, there was no direct evidence of criminal conspiracy and the Crown relied on circumstantial evidence to prove the guilt of the applicant. The applicant gave evidence and was treated by the Crown as a person of good character. For present purposes there was evidence of a conspiracy to import the cocaine between Gallichan and Gocoul, because Gallichan and Gocoul had pleaded guilty to it. Gallichan had given evidence of the applicant's being a party to the conspiracy but, as the learned commissioner reminded the jury, they required to look for corroboration on the issue of the applicant's complicity unless they were sure that Gallichan was telling the truth, always bearing in mind the danger of convicting without any independent confirmation of such evidence. 8. The applicant admitted that he had had an involvement with Gallichan and Gocoul, but not as part of a conspiracy to import cocaine. His case was that a third party had been involved in the conspiracy but that he, the applicant, was not prepared to name that person out of fear for the safety of his partner and children. Whilst he accepted that he had gone to Gallichan's house immediately after what was thought to have been the consignment had arrived, he said that he had simply been asked by this unnamed person to collect a package from Gallichan's house and had been told that it contained valium and Viagra. He indicated that he was to receive a fee of £350. 9. As the Crown presented the matters, and as the learned commissioner accepted, a key issue for the jury was likely to be the use of a mobile phone found on the applicant. The applicant accepted that the mobile phone contained information personal to him but indicated that he had borrowed the phone in 2005 from the same unnamed third party. On the applicant's evidence the unnamed third party had lent the phone to the applicant in 2005, taken it back and then lent it to him again in 2006. The applicant was very clear that he was only given the phone after 5.22 pm on 3 August. 10. In addition, there were transcripts of recordings taken from a listening device placed in the wooden box which had been delivered to Gallichan's house on 3 August. One transcript was prepared by the prosecution and was not an agreed document; another had been prepared on behalf of the defence showing where they agreed and where they differed from the prosecution version. The jury had the opportunity to listen to the tapes themselves with the transcripts before them. 11. Whilst the grounds of appeal against conviction address the possibility that different inflections might be placed upon the applicant's association with the mobile phone, his association with the cheque and the issue of threats, no criticism is made of the learned commissioner's summing up the of the evidence. 12. As amicus, Mr Steenson took us through a number of the records available at trial relating to telephone calls and mobile phone usage. The thrust of the applicant's case was that, contrary to the Crown evidence, there was material to support his assertion that more than two SIM cards could have been used in the relevant (that is the 'dirty') mobile phone and that the presentation of this evidence would bolster the applicant's credibility as to having borrowed the phone in 2005, and potentially underlining the evidence of Sanders, the Crown expert witness, as to information which could be gathered as to the use of mobile phones. In short, however, the evidence which the applicant considers could have been led would also (a) have emphasised his own connection with the phone and (b) have emphasised his partner's connection with the phone prior to 2003. There is nothing which would go to enhance the credibility of the applicant's contention that on 3 August 2006 he did not have access to the phone until 5.22 pm; whereas the fact would remain that moments after a text message at 5.06 pm to McCann on McCann's clean phone suggesting an urgent call to a particular individual, the dirty phone was used to contact that individual. Whilst the applicant's contention was that he was expecting a quite different delivery of drugs (Valium and Viagra) his attendance at the scene of the anticipated importation and the content of the transcript, all as referred to in the summing up, would have been ample potential corroboration for the jury. 13. As regards the possibility of additional DNA evidence, McCann accepts that there may be DNA evidence linking him to the inside of the dirty phone. Indeed his contention is of his having used the phone at least in 2005. Evidence that the finger prints of others might have been found inside the phone would do nothing to enhance the credibility of the applicant's contention that on 3 August 2006 he did not have access to the phone until 5.22 pm. 14. Turning to the possibility of handwriting analysis to demonstrate that McCann did not write anything on the cheque in question, this would be of no assistance in refuting inferences which could have been drawn from the applicant's attendance at the scene of the anticipated importation and the content of the transcript of the meeting which then took place. 15. Finally, as regards the allegations of a failure to call and properly cross examine witnesses in respect of alleged threats we have had the advantage of an Affidavit from the trial Advocate and can find no fault in his appraisal of the helpfulness or otherwise of the three potential witnesses to whom the applicant has referred. 16. In the whole circumstances, leave to appeal against conviction is refused. LEAVE TO APPEAL AGAINST SENTENCE 17. The applicant raised a number of issues in respect of the length of his sentence, the essence of which was that Gallichan had received unduly preferential treatment. 18. Taken on its own, there is, at first sight, nothing within the judgment of the Royal Court in respect of McCann which immediately identifies an instance of the Royal Court having misdirected itself. The guidelines set out in Rimmer, Lusk and Bade v AG [2001] JLR 373 give a starting point band of 11 to 14 years for the weight band of 250 - 400 grams of cocaine. As the Royal Court noted, weight is not the only factor and account must be taken of the nature and level of involvement of each defendant. 19. The Crown indicated that, because of the organising and coordinating role of McCann, they would take a starting point for him of 13 years; but moved for a sentence of 11 years because of his good character. 20. The Royal Court noted that McCann did not have the benefit of a guilty plea but did have the benefit of good character and, taking into account all letters and references and submissions, concluded that sentence should be 8 years' imprisonment. 21. As to starting points for Gocoul and Gallichan, the Royal Court found it very difficult to distinguish between McCann and Gocoul and set a starting point for Gocoul at 11 years also. In relation to Gallichan, the court regarded his as an exceptional case in which there could be a departure from the band because of the facts upon which he had pleaded guilty and fixed a starting point of 10 years. 22. We are perfectly content that the appropriate approach was adopted in relation to fixing the starting points by reference to the Rimmer guidelines and agree that it is always open to the sentencing court to identify that there are exceptional circumstances which entitle that court to depart from the band set in a guideline case. 23. Turning to mitigation, the court noted that Gocoul had the benefit of an early plea of guilty and had a criminal record which, whilst not entirely to his credit, was not extensive and without previous convictions for involvement in controlled drugs. A sentence of 5 years was fixed. 24. The court noted that Gallichan had a clean record and had pleaded guilty, albeit on the eve of trial. The court indicated, however, that it proposed to deal with Gallichan on a wholly exceptional basis because he not only made a statement of importance for the prosecution but had courage, in the face of threats, to give evidence at the trial in open court. The court indicated that it wished to make clear that those who were prepared to act in a courageous way, exposing themselves and their families to the risk of harm, would be rewarded by the Courts as part of the attempt to combat the drugs trade. Gallichan was sentenced to serve 240 hours community service, indicated as the equivalent of 18 months' imprisonment. The court observed that, had the new Law, allowing a far greater number of hours service to be imposed, been in force, the court might have been inclined to impose a higher sentence of community service. 25. As to mitigation, both McCann and Gocoul have young families and the court referred to the pleas as " very powerful ". Indeed, a noteworthy aspect of their circumstances is that both had gainful employment and particularly stable families. Neither had financial difficulties or drug induced problems. 26. Looking to the approach below as between McCann and Gocoul, the principal characteristics identified for mitigation, apart from family circumstances, letters and references, were that McCann did not have the benefit of a guilty plea but did have the benefit of a good character whereas Gocoul, whilst having a record not entirely to his credit, had the benefit of an early guilty plea. 27. The principal difference is, therefore, the early guilty plea. Subject to individual circumstances, a normal deduction for a plea of guilty will be in the order of one-third: see Carter v Attorney General CA (September 28 th , 1994 unreported); Campbell (AT) v Attorney General [1995] JLR 136 . Given the starting point of 11 years, Gocoul might have expected a deduction of, say, 3½ years had this been the only factor. Clearly there were other factors and the ultimate reduction was 6 years. The difference between McCann and Gocoul in the final analysis was 3 years and this might be thought reasonably fairly to reflect the difference between an early guilty plea and requiring the trial to proceed. 28. It is, perhaps, more difficult to understand the non-custodial sentence for Gallichan; particularly where the Royal Court itself notes that, had the new law been in place, a higher sentence of community service would have been imposed. 29. In matters of mitigation, however, this court is always reluctant to interfere with the determination of the court below because it is that court which has heard the complete trial and submissions and, within that ambit, considered all the submissions in relation to mitigation. In the present case we see nothing perverse in the respective results in the sentences for McCann and Gocoul. As regards Gallichan the court below has made it perfectly plain that the reason for such a significant discount and indeed a non-custodial sentence was based upon what they perceived as the courage of such an individual in being prepared not only to plead guilty, albeit on the eve of trial, but to give a statement and to give evidence. Such an approach was entirely open to the court below and serves to explain the significant distinction between, on the one hand, Gallichan's sentence and, on the other hand, the sentences for the applicant and Gocoul. There is nothing, therefore, in the approach of the court below to sentencing Gallichan which could cause this court to disturb the sentence in respect of the applicant. 30. The application for leave to appeal against sentence is therefore refused. Authorities Customs and Excise (Jersey) Law 1999. Rimmer, Lusk and Bade v AG [2001] JLR 373 . Carter v Attorney General CA (September 28th, 1994 unreported). Campbell (AT) v Attorney General [1995] JLR 136 . Page Last Updated: 22 Jul 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII