Guernsey Legal Resources

On Monday of this week the court dismissed the appeal of Jamie Russell Ingram against a sentence of 6 years’ imprisonment imposed by the Royal Court on September 3rd, 2004 for the fraudulent evasion of the prohibition on importation of heroin. We said then that we would give our reasons later. They now follow.

2 In April 2004, the appellant was living at Flat 2, Block 1, Millmount, La Charroterie, St. Peter Port. At that time he was 25 years of age. He had a number of criminal convictions. His last two, in 2001, had been for supplying cannabis and possessing cannabis with intent to supply. For those offences he had received a total sentence of 4 years’ imprisonment.

3 On Thursday, April 29th, 2004, customs officers intercepted a postal package which was on its way from South Wales to a near neighbour of the appellants. It was found to contain 13.1 grams of heroin, or, rather, a powder consisting of one part heroin and two parts cutting agent. The customs officers replaced the contents with an innocuous but similar looking powder and sent the package on its way. Having previously arranged for the delivery and recognising the package by its distinctive markings, the appellant collected the package from his neighbour’s post box and took it into his own flat where he was surprised a little later by customs officers armed with a search warrant. His attempts to flush the package down the lavatory were only partially successful. The appellant’s companion in crime, a young man called Nathan, was arrested, as was the appellant. Scales and a significant amount of cash were found, and there was also evidence of payments into a South Wales bank account.

4 In the interview, the appellant made no secret of having arranged the importation but he was at pains to minimize the role of Nathan.

5 Both the appellant and Nathan pleaded guilty to the importation of heroin at the first opportunity. The Royal Court said that they would each receive full credit for their pleas. Having set the starting point for the appellant at 9 years’ imprisonment and for Nathan at 7 years’, the court proceeded to sentence the appellant to 6 years’ imprisonment and Nathan to 4.

6 The appeal is brought with the leave of Southwell, J.A. The appellant has been represented—as he was before—by Advocate White. The

7 As to the first, Advocate White has rightly referred us to the guideline decision of this court in Richards v. Law Officers (4). Although of high authority, being that of a five-judge court presided over by the President, as the court itself explained, it was not attempting to lay down some sort of inflexible code and that sentencing remained ultimately a matter for the court’s discretion. Having said that, the case offers valuable assistance to sentencers, who will seldom need to look beyond Richards in arriving at the correct tariff for drugs offences.

8 The first principle to be extracted is that the starting point should be based primarily on weight, regardless of the degree of adulteration. In that respect, the approach differs from the approach adopted in England. Thus, in the present appeal, and adopting the bands proposed by the court in Richards, the starting point should have been in the range of 7–9 years. The Royal Court settled on 9. It took into account as aggravating features the involvement of the postal services and the previous convictions for drugs offences.

9 It has been argued that the previous convictions bear only upon the personal mitigation and should not influence the selection of the starting point. We do not agree: they serve to aggravate the seriousness of the offence and, unless reflected in the starting point, could never be more than a neutral factor. Looked at in isolation, therefore, and to borrow an expression from another jurisdiction, we cannot say that a starting point of 9 years was either wrong in principle or manifestly excessive. Indeed, we are entirely satisfied that 9 years was the correct point at which to begin.

10 It is here that Advocate White throws her curve ball. She says: “Look what happened only the day before in the same court for the same offence and three times the amount of heroin when the starting point was set at 9 years also. Can that be fair?” she asks rhetorically, in advancing what is, in reality, a disparity argument which involves contrasting two quite discrete cases, however proximate they may have been in point of time. The problem with that approach was well explained in the English case of R. v. Large (3 Cr. App. R. (S.) at 82). We quote:

    “This Court declines to entertain such a submission. By reason of the appeals which constantly come before it the Court is aware of the general level of sentencing throughout the country. If, when individual sentences are being considered, it was permissible for counsel to analyse sentences passed by other judges on other occasions for other offences the work of this Court would come to a standstill. It would occupy the time of the Court to an inordinate extent and

11 To that there may be an exception where the court is seised of consolidated appeals and is fully apprised of all relevant matters (see Clarkin v. Att. Gen. (2) and also Bond v. Law Officers (1)). Otherwise, we are firmly of the view that, in the accepted sense, disparity will not run as an argument as between unrelated cases where, as here, this court is not fully apprised of all relevant matters concerning the case with which comparison is sought to be made.

12 We turn to the second ground of appeal, which relates to the personal mitigation available to the appellant, which, it is asserted, was given no weight at all by the sentencing court.

13 We note that the appellant was accorded the full one-third discount for his plea, which might be regarded as generous, considering he had been caught red-handed. Even so, it is said, the court having acknowledged that the appellant was entitled to some credit on account of his age, an even more generous concession was appropriate. Given that he was 25 and had involved a younger and less experienced confederate, we cannot agree.

14 It is fair to say that this matter initially concerned the court. However, it is not for this court to mark the steps by which the sentencing court arrived at its sentence, save insofar that it may give rise to a warranted sense of injustice if, in the end, the sentence arrived at is a proper one, as it was here.