Jersey Unreported Judgments

2000/21

6 pages

ROYAL COURT

(Samedi Division)

 

3^rd February, 2000

 

Before:    F.C. Hamon, Esq., Deputy Bailiff, and

                                                      Jurats Myles, de Veulle, Le Ruez, Rumfitt,

                                                      Le Brocq, Tibbo, Bullen, Le Breton,

                                                      Georgelin and Allo.

 

 

The Attorney General

 

-v-

 

John Alan Welsh

 

 

Sentencing by the Superior Number of the Royal Court to which the accused was remanded by the Inferior Number on 5^th November, 1999, following a guilty plea to:

 

3 counts of:  possession of a controlled drug with intent to supply contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978:

                  Count 1: diamorphine

                  Count 3: cocaine

                  Count 5: cannabis resin

 

1 count of  possession of  a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law (1978):

                  Count 7: cannabis resin.

 

[On 5^th November, 1999, the Court, at the request of the Attorney General and with the consent of the accused's advocate, directed that the accused should plead to counts 1, 3, 5, and 7 only, and that proceedings in respect of counts 2, 4, and 6 (possession of diamorphine, cocaine, and cannabis resin, respectively, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978) be stayed until further Order]

 

Age:    34.

 

Plea:   Guilty.

 

Details of Offence:

 

Found with heroin (845g. street value £253k.  Wholesale value £126-152k. 8% purity).

Cocaine (351g. street value £28k.  Wholesale value £22k. 82% purity).

Cannabis (1,768g. (62 oz.) street value £9,900.  Wholesale value £6,900).

Accused was 'minding' the drugs overnight in return for a 9 oz. bar of cannabis for personal consumption.  Believed that all of the drugs were cannabis.  Largest seizures of heroin and cocaine in Jersey to date.

 

Details of Mitigation:

 

Guilty plea; residual youth; had exonerated his female partner at whose premises the drugs had been stored.

 

Previous Convictions:

 

Extensive.  Two previous for drugs offences, one of which was importation of Class 'A' drugs.

 

Conclusions:               Count 1:                            12 ½ years' imprisonment.

                      Count 3:   10 years' imprisonment.

                      Count 5:   3 years' imprisonment.

                      Count 7:   3 months' imprisonment.

                      All concurrent.

                                                                                                   

Sentence & Observations of Court:    Conclusions granted.

 

Neither the purity of the heroin nor the mistaken belief that it was cannabis would be taken as mitigation.  Moreover, 'minders' could play a part of major significance in the process by which dangerous drugs were disseminated.

 

 

                                                                          

                                             C.E. Whelan, Esq., Crown Advocate;

                                           Advocate D.C. Sowden for the accused.

 

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:   This was, by local standards, a massive seizure.  On Monday, 31^st May, 1999, Drugs Squad Officers entered the 'Wet and Wild' beach concession at Longbeach, Grouville.

 

The concession is owned and operated by a lady not involved in this matter, other than through her relationship with Welsh.  That relationship at the time of the raid was strained, and they no longer live together, however, Welsh still helped out at the concession, the keys were available to him and he had unlimited access to it.  

 

In the premises carrier bags containing packages were found and because we have described this as a massive seizure, it may be useful to analyse the contents.  There were 845.7grams of heroin, with a street value of £253,000, and a wholesale value of between £126,000 and £152,000.  Its purity however was 8%, as opposed to the national police average of 34%.  That probably only means that it would have been unlikely to have been "bulked out".  This is the largest seizure of heroin in Jersey to date.

 

There was also the largest seizure of cocaine.  351grams, with a street value of £28,136, and a wholesale value of £22,320.  In this case the purity was well above the police national average of 62%, it was in fact 82%.  There were also 998grams of cannabis with a street value of £9,900, and a wholesale value of £6,900.  There was sufficient cannabis to supply some 500 people.

 

So the total combined street value of the drugs seized was £291,000, and the wholesale value between £150,000 and £181,000.

 

Welsh has pleaded that he was minding the drugs, and he thought that what he was minding was cannabis.  He told police officers that he had not touched any of the packages inside the carrier bags which contained them, however his fingerprints were found on one of the packages of cocaine and on one of the packages of cannabis.

 

Miss Sowden was instructed to say that for a time Welsh had put this very valuable stash in a public litter bin under cover of darkness, but that he moved it later into the concession.  It was apparently in the darkness, according to Miss Sowden's instructions, that his hand had slipped inadvertently on to the packages while helping himself to his anticipated reward.

 

His story was that he had received a call from the owner at about half past ten in the evening previously to hide the drugs overnight.  He had hidden them at the beach concession.  He said that had the search warrant been executed five minutes later the drugs would not have been in situ.  He did not know what payment he would have received, but the impression was that he would get a nine bar of cannabis as a reward, worth about £1,400.

 

We have considered the law, and are of the opinion that the Court of Appeal in Harris [1998] 1 Cr.App.R.(S) 38 takes a view which this Court is well able to support.  It said this:

 

"...it was argued before the sentencing judge that the appellant should be treated as a minder, or somebody simply holding the drugs for a short space of time and therefore not in the most serious category of those charged with possession with intent to supply.

 

In his sentencing remarks this very experienced judge made it clear that in his view, with which we agree, a minder performs an essential service to the dealer, in that the dealer is often prepared, as in this case, to entrust him with substantial quantities of drugs.  That, as a result, carries with it the corollary that the minder is often close to the dealer.  The judge went so far as to say that the offence of possession with intent to supply as a minder is not far short, on the scale of seriousness, of the dealer himself.  That was his justification for imposing the sentence which he did.

 

We have great sympathy with that view.  There is no doubt that this judge will have had to deal on a regular basis with this offence and with those who put forward this account of how it was that they came to be in possession of the drugs in question.  We can readily understand why he would wish to send out the message which clearly he intended to send out in this particular case.

 

Mr. Harris, appearing before us on behalf of the appellant, has however submitted that in so doing, the learned judge fell into error because he failed to take properly into account the guidance from this Court relating to possession of drugs as a minder.  He referred us to Arif [1994] 15 Cr.App.R.(S) 895, in which Holland J. giving the judgment of the Court stated that a minder was not to be treated as being in the same position as a courier, but fell somehow lower down the scale of criminality.  That sentiment was echoed in Spalding [199]) 16 Cr.App.R.(S) 803.

 

In the opinion of this Court those remarks need to be considered with caution, because the position of the minder in any given case will depend upon the amount of drugs involved and what inferences can properly be drawn from the surrounding circumstances as to the part he was playing in the overall supply of the drugs.  There may well be circumstances in which the position of the minder is one which justifies the conclusion that he is more seriously involved in the drug trade than the courier".

 

Now, the supplier who asked Welsh to mind these drugs for him was prepared to trust him with a very substantial quantity with a very considerable street value, and this we must recall was a minder who knew his supplier well.  He even knew the precise time that the drugs were to be collected, and we would say in passing that Welsh is not a newcomer to the drugs scene; he is not, of course, being sentenced on his record, but we note that he received 3 years' imprisonment for importing controlled drugs in 1992, and six weeks for possession of controlled drugs in September, 1996.  He was clearly trusted by his supplier, and he was assisting in the dissemination of  some £291,000 worth of highly dangerous drugs on to the streets of this Island.

 

The supplier was content to entrust him with this considerable stash of illegal drugs that in our view goes far beyond the position of a courier moving drugs from one place to another.  Welsh was close to a source of supply fulfilling a function of fundamental importance in the chain of drug trafficking in this Island.

 

The learned Crown Advocate cited to us the case of Campbell, Molloy, and Mackenzie -v- AG (1995) JLR 136 CofA, where the Court said at page 145:

 

"In our judgment, a courier who knowingly transports illegal drugs must be taken to accept the consequences of his actions.  As the Attorney General put it, the moral blameworthiness is the same, whatever the nature of the drugs transported.  Furthermore, viewed from the perspective of the community, the evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug.  There may be very exceptional circumstances in which a genuine belief that a different drug was being carried might be relevant to sentence.  But in general we endorse the Royal Court's view in the case of Campbell that an erroneous belief as to the type of drug being carried is not a mitigating factor".

 

There are in our view no very exceptional circumstances which might give rise in this Court to any disquiet, and that would mean a departure from the clearly defined general principle.  Miss Sowden, however, has stressed the mistaken belief, but in our view that has been more than comprehensively dealt with by the Court in Campbell, a decision which was critically upheld by the Court of Appeal as recently as the 27^th January 2000 in Bray -v- AG (27^th January, 2000) Jersey Unreported CofA.  Nor can we see any value in the argument that the 8% purity should reduce the conclusions on heroin to bring it on to a parity level for sentencing with the cocaine.

 

We have looked at the cases of AG -v- Perchard & McConnachie (22^nd November, 1995) Jersey Unreported; AG -v- Le Tarouilly (2^nd December, 1996) Jersey Unreported; AG  -v- Dowse and Heys (20^th January, 1997) Jersey Unreported, and AG -v- Lunt (22^nd June, 1998) Jersey Unreported, with a view to seeing whether we consider that the starting point is correct, and we believe - with no hesitation - that the correct starting point for a crime of this magnitude is 16 years.  However we look at it, we cannot see that the conclusions of the Crown, bearing in mind particularly the age of the defendant, his plea of guilty, his desire not to implicate in any way his partner and his remorse, provide anything other than a substantial allowance for all the mitigation that is available.

 

Welsh, you are sentenced on Count 1, to 12 years and 6 months' imprisonment; on count 3, to 10 years' imprisonment, concurrent; on count 5, to 3 years' imprisonment, concurrent; on count 7, to 3 months' imprisonment, concurrent, making a total of 12 years and 6 months' imprisonment, and we order the forfeiture and destruction of the drugs.

 

Authorities

 

Neild -v- AG (28^th September, 1994) Jersey Unreported CofA.

 

Arif [1994] 15 Cr.App.R.(S) 895.

 

Harris [1998] 1 Cr.App.R.(S) 38.

 

Spalding [1995] 16 Cr.App.R.(S) 803.

 

Campbell, Molloy and Mackenzie -v- AG (1995) JLR 136 CofA.

 

AG -v- Le Tarouilly (2^nd December, 1996) Jersey Unreported.

 

AG -v- Dowse & Heys (20^th January, 1997) Jersey Unreported.

 

AG -v- Lunt (22^nd June, 1998) Jersey Unreported.

 

AG -v- Perchard & McConnachie (22^nd November, 1995) Jersey Unreported.

 

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (1994-95) Noter Up: pp.21 et seq.

 

AG's References Nos. 64 & 65 of 1997 (1999) 1 Cr.App.R.(S) 237.