Jersey Unreported Judgments

 2001/124

ROYAL COURT

(Samedi Division)

 

30th May 2001

 

 

The Attorney General

-v-

Stuart Alexander Kane

Trevor Moyce

Graeme Alan Speirs

 

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 4th May, 2001, following a guilty plea to the following counts:

 

STUART ALEXANDER KANE

 

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: Count 1: MDMA

 

Age:     22

 

Plea:    Guilty

 

Details of Offence (all three Defendants):

On 1^st March, 2001, all three defendants arrived at Jersey Airport from Edinburgh (via London) carrying controlled drugs concealed internally. 

Kane imported 306 Ecstasy tablets with a street value of between (approximately) £3,600 and £4,600 (approximate wholesale value of between £1,800 and £3,100) (Count 1).

Moyce imported approximately 80 grams of Heroin with an approximate street value of between £24,000 and £36,000 (approximate wholesale value of between £12,000 and £16,200) (Count 2) together with 43 Ecstasy tablets with a street value of between £500 and £650 (based on the now lower street price of Ecstasy of between £12 and £15 per tablet) or a wholesale value of approximately £250-£430 (Count 3).

Speirs imported 365 Ecstasy tablets with an approximate street value of between £4,400 and £5,500 (or wholesale value of between approximately £2,200 and £3,650) (Count 4).

Kane travelled on a ticket in the name of Anderson which was originally issued on 28^th February, 2001.  Moyce travelled on a ticket in his own name issued immediately after the ticket in Anderson's name was issued.  Speirs travelled on a ticket in his own name issued on the morning of travel, viz 1^st March, 2001.

Moyce handed air ticket to Kane at Edinburgh Airport on 1^st March 2001.  Speirs purchased his own ticket on 1^st March, 2001.  All three males were couriers and knew that the others were involved in importing drugs to Jersey.  In terms of hierarchy of involvement, the prosecution stated that Moyce appeared to have a greater involvement than Kane or Speirs and that the involvement of Kane and Speirs was the same.

 

Details of Mitigation:

Youth. Guilty plea. Deprived background.  Two minor previous convictions unrelated to drugs offences.  Never been in prison before.  Travelled at short notice on ticket in name of Anderson.  Took no part in planning of the operation.  Did not know where drugs were going in Jersey.  It was his naivety, anxiety and nervousness which alerted Police/Customs in the first instance.  Co-operated with Customs during the question and answer interview (short of naming supplier).  Good references handed to Court.  Detoxed while in Prison.

 

Previous Convictions:

None relevant.

 

Conclusions:

Count 1:

5 years' imprisonment.  (starting point: 9 years.)

 

 

Sentence and Observations of Court:

Count 1:

4 ½ years' imprisonment.  (starting point reduced to 8 years)

 

TREVOR MOYCE

 

2 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: Count 2: heroin Count 3: MDMA

 

Age:     27

 

Plea:    Guilty

 

Details of Mitigation:

Plea of guilty at very early stage (albeit not earliest stage).  Co-operated with Customs.  Although he has a previous conviction for supply of Class B drug when aged 19 (conviction dated 1994), this is first offence involving Class A drug.  Not ringleader in this episode.  Not much older than the other two accused.  Courier and not major organiser.  Letter of apology.  Remorse.

 

Previous Convictions:

7^th April 1994 - possession and supply of Amphetamine Sulphate; sentenced to two years in a Young Offenders Institution.  Several convictions for serious assaults.

 

Conclusions:

Count 2:	8 years' imprisonment.
Count 3:	8 years' imprisonment, concurrent. (starting point: 12 years.)

 

 

Sentence and Observations of Court:

Count 2:	7 years' imprisonment.
Count 3:	7 years' imprisonment, concurrent. (starting point correct, but greater allowance for mitigation.)

 

GRAEME ALAN SPEIRS

 

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 of the Customs and Excise (Jersey) Law 1999: Count 4: MDMA

 

Age:     21.

 

Plea:    Guilty.

 

Details of Mitigation:

Plea of guilty. Youth.  Difficult upbringing.  Drug addict.  Miscarriage of Fiancée's child too much for 21 year old to deal with.  Whilst shocked and vulnerable, was summonsed by drug dealers to whom he owed drug debt, to import drugs to Jersey.  Speirs was the last person to purchase ticket.  Classic courier with no previous involvement.  Did not attempt to dump drugs that he had concealed internally whilst at Airport.  Has previous convictions but most predate 1997 when he was 17/18 years of age.  No previous convictions, but for drug offences.  Not received previous custodial sentence.  Remorse.  Voluntarily withdrawn from drugs during time spent on remand in custody.

 

Previous Convictions:

No previous drugs convictions.  Two offences of attempting to pervert the course of Justice, for which he was fined.

 

Conclusions:

Count 4:

6 years' imprisonment. (starting point: 9 years.)

 

 

Sentence and Observations of Court:

Count 4:

5 years' imprisonment.  (starting point reduced to 8 years.)

 

 

P. Matthews, Esq., Crown Advocate;

Advocate A. Messervy for S.A. Kane;

Advocate N.J. Chapman for T. Moyce;

Advocate A. Clarke for G.A. Speirs.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.     These three defendants all came to Jersey by aeroplane carrying controlled drugs concealed internally.  Each was aware that the other was travelling and indeed they were all carrying drugs for the same supplier.  Kane had on him 306  ecstasy tablets, Speirs 365 ecstasy tablets, and Moyce had 43 ecstasy tablets and 80grams of heroin.

2.     Before we come to give our decision we must deal with certain submissions which the Crown has made to us.  It has asked us to review the principles used to fix on the starting point for offences in relation to Class A drugs.  In particular it wished to assert that the starting point should be fixed entirely by reference to the quantity of drugs, and that this quantity should be measured as is set out in the English case of R -v- Aranguren (1994) 16 Cr. App.R (S).211, where the weight taken is calculated by reference to the amount of the relevant drug calculated at 100% purity.

3.     Mr Matthews has accepted quite properly that it is of course not in fact open to us to change the relevant principles upon which we act.  That is because this matter was dealt with authoritatively by a special sitting of the Court of Appeal in the case of Campbell & Ors -v- A.G (1995) JLR 136 CofA, where 5 Judges sat to consider the principles, and the key passage read as follows, at page 144:

"In our judgement, the appropriate starting point for a case of drug trafficking of that nature would now be one of 12 years imprisonment.  If the involvement of a defendant in drug trafficking is less than that of  Fogg, the appropriate starting point will be lower.  If the involvement of a defendant in drug trafficking is greater than that of Fogg, the appropriate starting point would clearly be higher.  Much will depend upon the amount and value of the drugs involved, the nature and scale of the activity, and of course any other factors showing the degree to which the defendant was concerned in drug trafficking"

 As we say, only the Court of Appeal can vary that policy if it wishes.  The Crown has however asked us for our views on the submission which it wishes to make to the Court of Appeal.

4.     As to the first of its points, namely that the starting point should be fixed almost entirely by reference to the quantity of drugs, we have no doubt that the amount of the drug involved is one of the most important factors.  This has always been the case and continues to be treated as the case by this Court, but we think that the Campbell guidelines are helpful in making it clear that there are other factors which may also influence the starting point, and that one is concerned with the degree to which the defendant is concerned in drug trafficking, and that will not necessarily arise solely by reference to the amount of the drug.

5.     Indeed, we think a mathematical, or rigid, approach could lead to a minor player receiving much the same sentence as a major player in respect of the same amount of the drug.  One can imagine an occasion where a courier, who has no other involvement, is persuaded to bring across a quantity of drugs and then hands them to the person in Jersey who has organised the importation and will then set about arranging the sale.  The courier is perhaps going to receive a small fee, whereas the importer in Jersey is going to make a healthy profit from the sale of these drugs.  If the charges arose in relation to exactly the same quantity of drugs, which the courier had delivered to the importer, it is suggested by the Crown, as we understand it, that the starting point should be the same.  We think that would be wrong because the nature and scale of the involvement in drug trafficking in each case would not be the same notwithstanding that the charges related to the same amount of the drug.

6.     Accordingly, we think that the Campbell guidelines are helpful, but we emphasise that the quantity of the drug will usually be the key factor influencing the starting point, and this is sensible because the degree of damage and degradation caused by the accused's activities is related directly to the amount of drug with which he is concerned. 

7.     The second area  where the Crown has asked us to express our view is in relation to the adoption of the test in R -v- Aranguren.  We can understand why that was done in England, where the Courts are sometimes concerned with very substantial amounts of drugs, which are then going to be diluted by 'cutting', in order to sell them onwards.  In Jersey, we are, on the whole, dealing with much smaller quantities and the Court has not had any evidence presented to it that 'cutting' of drugs is commonplace.  In those circumstances it does not seem to us that the concentration of heroin or other drugs is particularly significant.  Accordingly, for our own part, we would be content to remain with the present sentencing policy in relation to quantity.  We emphasise that price is usually not very significant because we accept that the retail price of drugs can fluctuate and this should not lead to a fluctuation in sentencing policy.  But we are of the view that the Court's present policy of sentencing on the amount of drug in gross terms is adequate.

8.     With those comments on the Crown's submissions of principle, we now turn to consider the three cases before us.  We consider first the case of Moyce.  He imported some 80 grams of heroin and 43 ecstasy tablets.  The 80 grams would be sufficient to produce something in the region of 1,600 to 2,400 individual doses of heroin. If one reverts to Campbell & Ors-v-A.G. (1995) JLR 136 CofA and the case of Fogg, referred to in that judgment, Fogg had set about dealing in 1,000 doses of L.S.D. and a quantity of class B drugs.  In our judgment, the nature and involvement in drug trafficking of Moyce is broadly similar to that of Fogg, where a starting point of twelve years was said to be correct, and we therefore agree with the Crown that the correct starting point in this case is 12 years.  Mr. Chapman has referred to a number of matters in mitigation such as the early guilty plea, and the fact that he was intimidated into coming here, although the Court has repeatedly said that those who become involved in drugs should not be surprised if this occurs and it is not a mitigating factor.  We have had regard to all the mitigation as it appears from the papers before us, to the fact that Moyce is no longer an addict, and that he is remorseful and indeed we have seen the references and the papers. In the circumstances we think that we can deduct slightly more than the Crown, by way of mitigation.  So Moyce, the sentence of the Court in your case is one of 7 years' imprisonment, concurrent on each count.
 

9.     Turning now to Kane, we have had regard to the cases cited to us, including in particular,  those of A.G-v-Mitchell (1^st May 1997)  Jersey Unreported and A.G-v-Cabot (4^th December 1995), where starting points of 9 years were taken for amounts of ecstasy which were greater than the amounts in this case.  Similarly, we have considered those cases where starting points of 7 years were taken, where the amounts were rather less.  On balance having regard to the quantity of drugs in this case, we think that the correct starting point is one of 8 years.  Having regard to the mitigating factors, such as youth, guilty plea and the various letters and documents handed to us, we think that the correct deduction for that is one of 3 ½ years.  So Kane, the sentence of the Court in your case is one of 4 ½ years' imprisonment.
 

10.    In relation to Speirs, the involvement and mitigation is fairly similar, in terms of guilty plea, youth and so forth.  The Crown sought to distinguish by a year from Kane because of the lack of initial co-operation by Speirs and the fact that his record, although not involving drugs, was worse than that that of Kane.  We agree that those two factors merit a difference, but we think that they merit a difference of a slightly lesser amount. So Speirs, the sentence of the Court in your case is one of 5 years' imprisonment. We order the forfeiture and destruction of all the drugs.

 

Authorities

 

Campbell & Ors-v-A.G. (1995) JLR 136 CofA.

AG-v-Moss, Bade (3^rd May 2001) Jersey Unreported; [2001/97]

AG-v-Batchelor (3^rd May 2001) Jersey Unreported; [2001/96]

A.G-v-Mitchell (1^st May 1997)  Jersey Unreported;

A.G-v-Cabot (4^th December 1995) Jersey Unreported;

A.G-v-Ingham (9^th February 1996) Jersey Unreported.

R -v- Aranguren (1994) 16 Cr App.R. (S) 211