ROYAL COURT
(Samedi Division)
16 November 1998
Before: F C Hamon Esq., Deputy Bailiff and
Jurats Le Ruez, Herbert, Rumfitt, de Veulle,
Quérée, Le Brocq, and Bullen
AG
-v-
Mohamed Nafkha
Jason Roger Hurst
Andrew Steven Brown
Gary Grant Stringfellow
Sentencing by the Superior Number of the Royal Court, to which the accused were remanded on 19 June 1998, by the Inferior Number, following guilty pleas to the charges set out below, and following a Newton ‘hearing’ in the case of Mohamed Nafkha, Jason Roger Hurst, and Andrew Steven Brown.
MOHAMED NAFKHA
1 count of supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978
count 1: amphetamine sulphate
1 count of being concerned in an offer to supply a controlled drug contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978
count 2: cannabis; and
2 counts of possession of a controlled drug contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law 1978
count 3: cannabis resin
count 4: amphetamine sulphate
Age:
Details of Offence
Details of Mitigation:
Previous Convictions:
Conclusions:
count 1: 15 months imprisonment;
count 2: 12 months imprisonment concurrent
count 3: 1 month imprisonment, concurrent, but consecutive to sentence sought on count 1.
count 4: 1 month imprisonment, concurrent but consecutive to sentence sought on count 1
TOTAL: 16 months imprisonment
Sentence and Observations of the Court:
3 years Probation, with 100 hours community service, to be completed within 12 months with condition of attendance at the Drug & Alcohol Service for such period as the Probation Officer shall direct.
JASON ROGER HURST:
1 count of supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978
count 5: amphetamine sulphate.
1 count of being concerned in an offer to supply a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978:
count 6: cannabis resin:
1 count of being concerned in the supplying of a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978:
count 7: amphetamine sulphate;
1 count of being concerned in the making of an offer to supply a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978.
count 9: cocaine;’
2 counts of possession of a controlled drug contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law 1978
count 10: cannabis resin
count 11: amphetamine sulphate
Age:
Details of Offence
Details of Mitigation:
Previous Convictions:
Conclusions:
count 5: 18 months imprisonment
count 6: 18 months imprisonment, concurrent
count 7: 18 months imprisonment, concurrent
count 9: 3 years imprisonment concurrent
count 10: 1 month imprisonment concurrent
count 11: 1 month imprisonment concurrent
TOTAL: 3 Years imprisonment
Sentence and Observations of Court:
count 5: 12 months imprisonment
count 6: 12 months imprisonment, concurrent
count 7: 12 months imprisonment, concurrent
count 9: 2 years imprisonment, concurrent
count 10: 1 month imprisonment, concurrent
count 11: 1 month imprisonment, concurrent;
TOTAL: 2 Years imprisonment
ANDREW STEVEN BROWN.
2 counts of being concerned in the supply of a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978
count 12: amphetamine sulphate
count 13: amphetamine sulphate
2 counts of supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978
count 14: cannabis
count 15: cocaine
1 count of being concerned in the making of an offer to supply a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1973
count 16: cocaine
Age:
Details of Offence:
Details of Mitigation:
Previous Convictions:
Conclusions:
count 12: 18 months imprisonment
count 13: 18 months imprisonment, concurrent
count 14: 18 months imprisonment, concurrent
count 15: 5 years imprisonment, concurrent
count 16: 7½ years imprisonment, concurrent
TOTAL: 7½ years imprisonment
Sentence and Observations of Court:
count 12:15 months imprisonment
count 13:15 months imprisonment, concurrent
count 14:15 months imprisonment, concurrent
count 15:5 years imprisonment, concurrent
count 16:5 years imprisonment, concurrent
TOTAL:5 years imprisonment
GARY GRANT STRINGFELLOW.
1 count of being concerned in the making of an offer to supply a controlled drug, contrary to Article 5 (c) of the Misuse of Drugs (Jersey ) Law, 1978;
count 17: cocaine;
1 count of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978
count 18: cannabis resin
1 count of failing to conform to the identification given by a sign, contrary to Article 36(1)(a) of the Road Traffic (Jersey) Law 1956, (count 19);
Second Indictment:
1 count of taking and driving away a motor vehicle without the owners consent or other legal authority ( count 1);
1 count of driving a motor vehicle with alcohol concentration above prescribed limit ( count 2 );
1 count of using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948 ( count 3).
Age:
Details of Offence:
Details of Mitigation:
Previous Convictions:
Conclusions:
count 17: 6 years imprisonment
count 18: 1 month imprisonment, concurrent
count 19: £100 fine or 7 days imprisonment, concurrent
Second Indictment:
count 1: 4 months imprisonment, consecutive, 12 months disqualification from driving.
count 2: £20 fine; or 7 days imprisonment (concurrent); 12 months disqualification from driving;
count 3: 4 months imprisonment concurrent with 12 months disqualification from driving;
Sentence & Observations of the Court:
count 17: 4 years imprisonment;
count 18: 1 month imprisonment
count 19: £100 fine or 7 days imprisonment, concurrent.
Second indictment:
count 1: 4 months imprisonment; 12 months disqualification from driving
count 2: £200 fine or 7 days imprisonment, (consecutive); 12 months disqualification from driving.
count 3: 4 months imprisonment; concurrent: 2 years disqualification from driving.
Sentence of imprisonment imposed on Second Indictment, to follow consecutively those imposed on the first indictment.
TOTAL: 4 years 4 months imprisonment, 2 years disqualification from driving.
Miss S E Fitz, Crown Advocate
Advocate D M C Sowden for M Nafkha
Advocate A D J Winchester for J R Hurst
Advocate N J Chapman for A S Brown
Advocate N F Journeaux for G G Stringfellow
JUDGMENT
THE DEPUTY BAILIFF: These four defendants are before us today because, between Monday, 8 September and Saturday, 20 September, the States of Jersey Police Force, in conjunction with officers from the Strathclyde Police, mounted an undercover drugs operation in Jersey. In the Newton hearing we have had the opportunity to hear the five officers from the Strathclyde Police Force and the three accused; Nafkha, Hurst and Brown.
It is, perhaps, a sad indictment of this Islands drugs scene that - within ten minutes of being in the ‘Allsports’ - D C McCann, who was with D I Ferguson, only to act as babysitters watching over and protecting WPC’s Goligher with McNeil and Cochrane were, to their surprise, being propositioned about drugs by Nafkha. It was not a conversation about drugs that led D C McCann to say that he was into cannabis and which led Nafkha to state that he, Hurst and Brown, could supply him with any drugs that he wanted.
Later on, in the ‘Babylon’ public house, when drugs had been supplied, further conversations took place and that eventually led to D C McCann telling Hurst that the girls did not approve but he would like a bit of coke and could he, Hurst, point him in the right direction. It was then that Hurst motioned towards Brown and Brown set in train a series of arrangements that eventually led to all the defendants, including Stringfellow, being before us today.
We must recall here that time and again, D C McGann gave Stringfellow the opportunity to resile from the proposed deal. We have to say that the Court takes the view that the officers behaved with scrupulous fairness in the light of the difficult task that they were called upon to perform and we do not believe that they breached the instructions which were read to them by D I Cowie in words that are used, apparently, throughout the United Kingdom, including Northern Ireland and, we presume, in operations often far more dangerous and covert than were these.
We have to consider whether the police officers acted unprofessionally. It is the test in Underhill (1979) 1Cr. App.R.(S)270 that we consider appropriate and in that case the Court said,
"It has been said by Judges of high authority that, of course, police officers must not in the course of investigating and infiltrating cross the dividing line between that which is proper and that which is improper. A line which, unhappily in practice, is sometimes not very easy to draw. In some cases there can be no doubt that a police officer, we instance a case in giving the Judgment of this Court in Sang, involved in terrorist activities may, in the course of those activities, involve himself without impropriety in the commission of the crime which would not but for these activities have been committed. Where the line is drawn must always depend on the circumstances of a particular case. Again this Court pointed out in Sang, and the House of Lords seemingly agreed, that a police officer must not of course act unfairly or do anything which, for example, would lead to an improper extraction of admission from an accused person or a suspect. The only question we have to consider is whether, in the light of the three statements which the Secretary of State has invited this Court to consider; the police officer concerned crossed the line between that which is legitimate infiltration and that which can be fairly condemned as illegitimate instigation."
With regard to Nafkha, nobody in our view could have been said to have incited him. He was proactive and he made all the offers to supply.
Brown, in our view, was actively working with Hurst to supply drugs. He had drugs on him and he dealt in them at the ‘Babylon’.
It was after the initial events that things, however, took a different turn. We cannot, in any way, blame D C McCann for the way in which he acted in raising the stakes to introduce cocaine, but we shall return to that aspect later.
Nafkha was described in the course of this trial as a ‘chancer’ and we see no reason to depart from that description. However, he is to be separated from the others as regards culpability. Stand up, Nafkha, please.
We have read very carefully all the reports about you and we are taking a different view to that of the Crown. We are going to sentence you to 3 years’ probation and 100 hours’ Community Service, but it is on condition that you seek counselling from the Alcohol and Drugs Service for such a period as the Probation Service may require. You may leave the Court.
Hurst, we note, in Campbell, Molloy, and MacKenzie -v- A.G. (1995) JLR 136 CofA, that the starting point for any offence of trafficking in a Class A Drug on a commercial basis cannot be less than a term of 7 years. However, looking at the facts of this case, we cannot regard this as trafficking on a commercial basis and Miss Fitz herself told us that this case was unusual. She said that a better approach was to look at the crimes in general. We have had some regard to the way that Hurst behaved as an intermediary contact between D C McCann and Brown and W D S Ferguson and Brown, but, other than passing the tablets under the table at some stage, he in fact did nothing more. He was of previous good character, had no criminal record, and produced some good references; therefore we are going to lower his sentence a little. Stand up, Hurst, please. On count 5, you are sentenced to 12 months imprisonment; on count 6, you are sentenced to 12 months imprisonment; on count 7, you are sentenced to 12 months imprisonment; on count 9, you are sentenced to 2 years imprisonment; on count 10, you are sentenced to 1 month imprisonment; and on count 11, you are sentenced to 1 month imprisonment, all to run concurrently, making a total of 2 years’ imprisonment.
We turn to Brown. We regard Browns involvement in this case as serious. At one stage he made some outrageous suggestions about the officers, which we do not accept in any way, but of course that has not affected our judgment. He supplied cannabis, cocaine and was concerned in the supply of amphetamine sulphate. However, we feel that in the absence of any other evidence of drug dealing - and there was none - 7 years is the correct starting point. We feel that some discretion is available with regard to the fact that he has made a serious attempt to lead a form of law abiding life, despite his record. We must remember, however, that the Jurats took the view that he was dealing and intending to deal in Class B drugs in the ‘Babylon’. Again, we are going to reduce the sentence slightly. Brown, stand up, please. On counts 12, 13 and 14, you are sentenced to 15 months imprisonment on each count, concurrent. On counts 15 and 16, you are sentenced to 5 years’ imprisonment on each count, concurrent, making a total of 5 years imprisonment.
We now turn to Stringfellow and here we need to consider entrapment which, of course, is not a defence in law, but which could be a substantial mitigating factor, see R. -v- Sang (1979) 69 Cr. App.R.282, Mr Journeaux has, quite rightly, not criticised the police and we think that his approach was correct. We are satisfied, on the evidence - and we heard them giving evidence before us - that the Strathclyde police did not breach the terms of engagement. However, if we look at the cases cited to us such as AG -v- Martin (1 September 1997) Jersey Unreported and AG -v- Spencer (13 June 1997) Jersey Unreported, we believe that the starting point should be 7 years. The mitigating factors which can be taken into account are the guilty plea and also the fact that Stringfellow was not involved in the Newton hearing and has therefore the benefit of his guilty plea and has not been in any trouble for 10 years. Stringfellow, stand up, please. On count 17, you are sentenced to 4 years imprisonment; on count 18, you are sentenced to 1 months imprisonment; and, on count 19, you are fined £100 or 7 days imprisonment, concurrent. On the second indictment, on count 1, you are sentenced to 4 months imprisonment, consecutive; with 12 months disqualification from driving; on count 2, you are fined £200 or 7 days imprisonment, consecutive, with 12 months disqualification from driving; on count 3, you are sentenced to 4 months imprisonment, AG -v- Nafkha, Hurst, Brown and Stringfellow
Court in an exemplary manner and, Miss Fitz, perhaps you would notify the Attorney General of our views on that so that he can contact the Strathclyde police.
Authorities
R -v- Underhill (1979) 1Cr App R (S) 270
R. -v- Sang (1979) 69 Cr App R 282
AG -v- Martin (1 September 1997) Jersey Unreported
AG -v- Spencer (13 June 1997) Jersey Unreported
Campbell, MacKenzie, Molloy (1995) JLR 136 CofA