ROYAL COURT
(Samedi Division)
2 June 1999
Before: F C Hamon Esq Deputy Bailiff and
Jurats Myles and Le Brocq
AG v Jonathan James Rice
‘Newton’ hearing to establish street value of drugs seized.
1 count of: being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 77(b of the Customs and Excise (General Provisions) (Jersey) Law 1972:
Count 1: amphetamine sulphate.
Court prefers the Crown’s evidence.
Age: 35
Plea: Guilty
Details of Offences:
Rice imported 988 tablets of amphetamine sulphate. Each tablet had an average weight of 255 mg and contained an average of 31.9% by weight of amphetamine. Together the tablets contained 80.36 grams of pure amphetamine sulphate, the equivalent of 58.96 grams of 100% pure amphetamine. Rice was intercepted by customs officers upon arrival at Elizabeth Terminal and during the course of a body search Rice produced from inside his underpants a package containing 988 tablets which he thought were Ecstasy.
During interview under caution, Rice explained that he had planned the present offence whilst he was serving a sentence of 6 months imprisonment following his conviction by the Canterbury Crown Court on 14th September, 1998, relating to six separate counts of smuggling tobacco into the United Kingdom. A fellow prisoner had given him the telephone number of a drugs dealer in Newcastle. Upon his release from prison, Rice travelled to his home address in Devon obtained £2,500 in cash from his savings, drove up to Newcastle, paid the dealer £2,500 for what Rice believed were 1,000 ecstasy tablets. Within 9 days of his release from prison in the United Kingdom, Rice is arrested in Jersey in connection with the present offence. Rice stated that he was to hand the drugs over to a person in a public house in St. Helier and that he was to receive £3,500 in six weeks time.
Details of Mitigation:
Plea of guilty (although inevitable in the circumstances). Limited co-operation with the Police. No previous drug convictions. Vehicle (an ancient Ford Sierra) had been confiscated under the Customs Law. No previous convictions for drugs offences. Naïve. Rice apparently anticipated a profit from the venture of £1,000. Impressive and apparently genuine letter of remorse handed to the Court.
Previous Convictions:
Minor convictions for theft, criminal damage dating back 17 to 19 years ago. Ignored.
14.9.9.98 six counts of being knowingly concerned and fraudulently evading duty chargeable on goods (namely tobacco). Imprisoned for six months.
Conclusions: 3½ years’ imprisonment.
Following the outcome of the Newton Hearing regarding the street value of the drugs (see note below) the Crown took a starting point of 4 years’ and a deduction of six months’ in respect of the plea of guilty and limited co-operation with the Police (but had made no allowance for remorse which was expressed to the Court during mitigation speech made by defence counsel).
Sentence and Observations of the Court: 3¼ years’ imprisonment.
Court adopts a starting point of 4 years’, allows reduction of 6 months’ in relation to plea of guilty and a further reduction of 3 months’ in connection with the remorse expressed in Rice’s letter. Accordingly Rice sentenced to 3 years’ 3 months’ imprisonment and Court orders the confiscation and destruction of the drugs.
Remarks:
There was a mini Newton hearing as there was a dispute between prosecution and defence as to the value of the amphetamine sulphate tablets.
DC TG de la Haye for the prosecution stated that there was no separate market for amphetamine sulphate tablets in Jersey and that they were sold as ‘E’ and that in January 1998, the street value of these tablets would have been £20, the total street value therefore of 988 tablets being £19,760.
William Saunders, Director Drugs and Alcohol Service, contacted the co-ordinator of Jersey Respect (a group of drug users) who made inquiries of 6 or so users. Mr. Saunders stated that the price of amphetamine sulphate tablets was between £7 and £10 per tablet depending on the quality. It was greed that the tablets in this case were reasonable or good quality (DC de la Haye said that the tablets were 8 times as strong as the usual amphetamine sulphate powder wrap). The Court preferred evidence of DC de la Haye.
The 4 year starting point was based on the police officer’s valuation although prosecution emphasised that gravamen of the offence was importation of almost 1,000 tablets = almost 1,000 doses, no question of any further sub-division.
The Crown referred to, but did not hand up to the Court, to the case of A.G. -v- Galante (25th November, 1996) Jersey Unreported. But it informed the Court that in that case, the accused had received a 2 year sentence of imprisonment in relation to the possession with intent to supply 68 amphetamine sulphate tablets.
The Court were advised that Galante had appealed but only in relation to the sentence imposed for Class A drugs. There was no appeal in relation to the sentence of 2 years imposed for the possession with intent to supply of 68 amphetamine sulphate tablets. The Crown did not seek to rely on Galante as a sentencing authority because each case essentially turns on its own facts. The Class B element was not at the forefront of the Court’s mind, which would have been concerned with the sentence to be imposed for the Class A drugs offences.
P Matthews Esq Crown Advocate
Advocate D J Petit for the accused
JUDGMENT
THE DEPUTY BAILIFF: During the evening of Sunday, 20th December, 1998, the accused was stopped by Customs Officers as he disembarked from the Poole car ferry. His nervousness betrayed him. While he was being searched within the customs search area, he handed over a bag concealed in his underpants. The bag contained what clearly appeared to be ecstasy tablets. They had a musical notation embossed on them and were called ‘Melody’ by Rice. He said that he had 1,000 tablets.
Rice was interviewed. He had £1,260 in his wallet. He claimed it was his savings. He had been released after serving three months of a prison sentence of six months in the United Kingdom for six separate counts of smuggling tobacco and freely admitted that the drug deal was planned initially whilst he was in prison.
After a consultation with Advocate Journeaux Rice gave further limited information. After his release from prison he had travelled to Devon then to Newcastle to purchase these drugs. He had been given a mobile number to telephone. He says that he paid £2,500 of his own savings for those drugs, but of course he gave no more information and he had been unemployed for eighteen months. Before that he had been a builder.
He was given a Jersey number to telephone by the dealer in Newcastle. He states that he has lost that number. He was, he says, to have received £3,000 six weeks after delivery of the drugs. He was to deliver the drugs during the evening to a man in the ‘Oxford’ public house. He did not know the man. He had a mobile telephone on him when arrested. It was given to him, he says, by his wife so that he could keep in contact with her. He had actually missed the boat on the Saturday but he had telephoned his contact in Jersey on the number which he said he had lost.
The 988 tablets when analysed looked precisely like ecstasy tablets but contained amphetamine sulphate. Each tablet had an average weight of 255 mg and contained an average of 31.9% by weight of amphetamine. The tablets contained 80.37 grams of pure amphetamine sulphate which is equivalent to 58.96 grams of pure amphetamine. Amphetamine of course is a Class B drug. Ecstasy is a Class A drug.
This morning we have, of necessity, held a ‘Newton’ hearing and we have heard evidence from D.C. de la Haye and from Mr. Saunders, a director of the Alcohol and Drug Service as to the commercial value of the drugs.
D.C. de la Haye gave his expert opinion and stated that amphetamine tablets are normally sold as ecstasy tablets on the street and reflect the same price per tablet which he thought was £20. In his expert opinion the amphetamine sulphate tablets would have had a street value locally of £19,760 and it goes without saying that D.C. de la Haye considered that 988 tablets were a significant commercial value of this illicit drug. He said he would regard the range of £15 to £20 per tablet as appropriate for the retail price and the divergence of opinion came about because Mr. Saunders had stated in a letter to Advocate Petit that amphetamine tabs are currently retailing at £7 although it was thought that good quality tabs could go up to £10. Therefore on that basis, according to Mr. Saunders, the street value of these 988 amphetamine sulphate tablets would be between £6,916 and £9,880.
We have been greatly helped by both experts but we preferred the evidence of D.C. de la Haye. In our view his evidence is drawn from a much wider range of contacts because he deals not only with users but also with undercover police officers of several forces in England and Scotland and also of course with registered local informers.
Mr. Saunders took advice from the Jersey drug users group and enquiries were made on his behalf by the co-ordinator over three days. Some six local users were consulted and advice was taken from a research project in Manchester. Mr. Saunders said that sets of friends would buy from a particular dealer usually in the privacy of their home. This, he informed us, was a section of the community that the police could never penetrate and the price in clubs and pubs would inevitably be higher than this close knit community of drug users who would normally, according to Mr. Saunders, take their drugs before setting out for an evening’s entertainment. We cannot accept that this would have dictated the price. We have no evidence as to the destiny of these particular drugs except we heard from D.C. de la Haye that an organised dealer could have disposed of this large number over one weekend - and we have to remember, of course, that Rice missed the Saturday boat and perhaps the intention of these dealers was to rid themselves of this large quantity of drugs over that weekend as quickly as possible. However, although we prefer the evidence of D.C. de la Haye for those reasons, there is no doubt - and both experts would have agreed - that 988 tablets represents wholesale trafficking in drugs.
Returning to our scenario, the importation was planned by Rice while he was in prison. He contacted the drug dealer in Newcastle, travelled from Devon to Newcastle to pick up the drugs; used his own money; made his own travel arrangements and paid his own travel costs. He was also using his own car for a visit which he said was for just one day.
We must also remember that D.C. de la Haye told us that, from his experience, he had never known amphetamine to be sold as such in tablet form and we were supplied with case histories from 1991 to 1997 where ecstasy tablets turned out to contain other substances. According to D.C. de la Haye amphetamine is normally sold as powder in wraps. The end result had all gone well for Rice and if he had not been stopped by vigilant customs officers the gullible persons who might have purchased these tablets in darkened night-clubs in Jersey would have thought that they were paying for ecstasy tablets but were in fact purchasing amphetamines. However the thought must occur to us that they might well have been purchasing something quite different and infinitely more dangerous and that is the true nature of this filthy trade. The Appeal Court in the case of Campbell Molloy and MacKenzie -v- AG (1995) JLR 136 CofA must always guide this Court and in that seminal case the Court said this:
"…the Attorney General asked us to consider whether the test laid down by the English Court of Appeal in R. -v- Aranguren (1994) 16 Cr.App.R.(S) 211 for gauging the gravity of an offence was apt for adoption in Jersey. In Aranguren the court held that reference to the street value of the drug should be abandoned in favour of a formula related to weight and purity. This case was considered by the Royal Court in the case of Campbell (1994 JLR N-13) Crill, Bailiff stated:
"It has never been the practice of this court to have regard solely to one or the other. This court has had regard to both the weight and the street value; it has never been disjunctive. It has been conjunctive and the court takes both into account. The court cannot sentence purely on the market principle alone and it must be stressed, as I said at the opening, that the effect on Jersey of importing even a small amount is far greater in proportion than it would be in England."
This approach appears to us to be entirely satisfactory having regard to the nature of drugs cases coming before the courts in this jurisdiction. Both the street value and the weight of the drugs are relevant factors for the court to know in assessing the level of involvement of the defendant in drug trafficking."
That approach has been approved in Guernsey in the recent case of Scragg -v- AG . (16th March 1999) Court of Appeal of Guernsey. As we have said the gravamen of this offence is the importation of 988 separate tablets which equates to 988 doses. The street value is £19,760 which in fact relates and correlates to the figures that Rice mentioned in his interview regarding the payment that he had received and the profit that he was likely to make. We have a letter from Rice which expresses his remorse and he has, of course, of necessity pleaded guilty. He has no previous drug convictions and as part of the scenario he has had his car confiscated.
As Mr. Petit in his excellent address to us states, everything turns on the starting point that we are likely to take.
The sentencing approach for Class B drugs in Campbell was as follows: over 30 kg: £168,000 +: 10 years plus; 10-30 kg: £56,000-168,000: 6-10 years; 1-10 kg: £5,600-56,000: 2-6 years. The Court of Appeal stated in the Campbell case:
"The guidelines set out above apply equally to all cases involving the trafficking of Class B drugs on a commercial basis. We accept that analysis by the weights described in the bands above will not be appropriate for offences involving amphetamines. The approximate street values will, however, afford some guidance to the Royal Court in dealing with such offences on a case by case basis."
Mr. Petit relies strongly on that passage. He said that we can juxtapose amphetamines with cannabis and on that basis the starting point would fall - on our analysis - at about £31,000 and therefore we could set a starting point at 3 years. With respect to Mr. Petit we cannot accept that that numerical exercise is appropriate. The better way, we feel, to look at the case is to say that this was trafficking on a large scale: 988 separate doses with a purity of 31% with all the attendant problems that drug dealing on this scale brings to what is still a small community. We therefore feel that 4 years is the appropriate starting point and after allowing for the plea of guilty, the very limited co-operation, and now the letter of remorse, which we believe to be genuine, we will slightly alter the conclusions of the Crown.
Stand up, please, Rice. You are sentenced to 3¼ years’ imprisonment and we order the forfeiture and destruction of the drugs.
Authorities.
R -v- Wijs [1998] Crim.LR 587 CA.
Campbell Molloy and MacKenzie -v- AG (1995) JLR 136 CofA.
Scragg -v- AG (16th March 1999) Court of Appeal of Guernsey.
AG -v- Bateman (8th May, 1996) Jersey Unreported.
R -v- Aranguren (1994) 16 Cr.App.R.(S) 211.
Whyte -v- AG (17th March, 1999) Jersey Unreported CofA.