Jersey Unreported Judgments

 2002/241

ROYAL COURT

(Samedi Division)

 

16^th December 2002

 

 

The Attorney General

-v-

George Andrew Barr;

Peter Hagen.

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 13th December, 2002, following a guilty plea to the following charges:

 

George Andrew Barr

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999: Count 1: diamorphine.

 

Age:     24.

 

Plea:    Guilty.

 

Details of Offence:

Barr arrived off the ferry from Portsmouth and was stopped by Customs officers.  During a search, paperwork relating to a "catering stove" was found, noting the consignor as being Mr Wilson of Cheshire and the consignee as Mr Singh of Jersey.  When questioned, Barr stated that Mr Wilson and Mr Singh were his uncles.  He said that he had driven from Scotland in a van to deliver an oven to Mr Singh and that he had travelled with a second male.  A search of his person proved negative and he was allowed to proceed.  The following morning the catering stove was examined.  The address in Cheshire of the consignor did not exist.  The top cover of the oven was removed and a black plastic bag was found inside which contained a small grey clay ball.  On cutting the clay ball open, the Customs officer found a Kinder egg containing heroin which had been wrapped in a balloon. 34 similar balls were found, all containing heroin.  The drugs were substituted with Demerara sugar and the oven was allowed to be delivered.  Hagen later arrived to collect the oven, produced a copy of the consignment note, loaded the oven into his van and drove away to a remote gravel track in St Peter's Valley where it was believed the packages were removed from the oven.  Barr and Hagen were arrested.  Hagen permitted DNA samples to be taken which matched blood samples found inside the oven.  Barr was uncooperative at interview and denied his previous conversations with Customs officers.  Hagen declined to answer any questions on legal advice.  The Kinder eggs contained a total of 488.87 grams of heroin with a purity of between 11 and 13%.  The street value was between £146,661 and £219,991.50.  Delay in sentencing was caused by two other co-accuseds, Alexander McLees and William Swanston pleading not guilty and causing a trial date to be fixed for December, but this was vacated after the charge was withdrawn against them.

 

Details of Mitigation:

Barr claimed he did not know the nature of the drugs involved nor the scale of the crime.  Extremely foolish.  Still young, no previous record for drugs.  Guilty plea not inevitable. Remorse.  Small financial reward, not to cancel drug debt.  Impecuniosity because of inability to work following back complaint.  Opportunistic.  Mere courier.    

 

Previous Convictions:

Two non relevant convictions in 1996 and 1998. 

 

Conclusions:

9 years' imprisonment. (14 year starting point)

 

 

Sentence and Observations of Court:

Conclusions granted.

 

 

Peter Hagen

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999: Count 1: diamorphine.

 

Age:     36.

Plea:    Guilty.

 

Details of Offence:

See Barr.

 

Details of Mitigation:

Never previously involved in serious crime.  Devastated to find out drugs were heroin: thought it was cannabis.  At home was a member of "parents against heroin".  Offered apology.  Let down his family and two children aged 6 and 10.  Gambling addict who got into debt.  Debt would be cancelled on doing the drug run.

 

Previous Convictions:

Six previous appearances in Court involving nine offences between 1986 and 2001. One drugs offence.

Conclusions:

9 years' imprisonment. (14 year starting point)

 

 

Sentence and Observations of Court:

Conclusions granted.

 

 

Mrs S. Sharpe, Crown Advocate.

Advocate C.R.G. Deacon for G.A. Barr.

Advocate A.P. Roscouet for P. Hagen.

 

 

JUDGMENT

 

THE commissioner:

1.        We will not repeat what we have said in the previous case of Akers and Green .  We are going to follow the Court of Appeal guidelines in Rimmer, Lusk and Bade -v- AG [2001] JLR 373 CofA, with, of course, the caveat given in that case that they are not to be treated with as if embodied in a staute.  Weight is the guiding factor.  We will also, of course, consider matters such as the level of involvement and what part each accused played in the transport of the oven and whether he is an organiser or a courier.

2.        The Kinder eggs found in the stove contained 488.87 grams with a purity of 11-15% of diamorphine.  That is a significant amount of heroin and falls within the highest level of 14 years' and upwards as set out in the Court of Appeal guidelines.  The fact that the heroin was of low purity can, in our view, be disregarded.  This was a sophisticated and well planned operation and both accused, in our view, played an important part in it. 

3.        Barr is 24 years of age with no relevant criminal convictions.  Advocate Deacon says that he had no idea how serious the offence was and that his motivation is not clear.  We have, of course, read his background reports with some care.  His back complaint and the loss of his partner have no doubt compounded his personal problems.  We also agree that his guilty plea was not inevitable.

4.        Hagen is perhaps a sadder case.  We can accept that he did not realise that the drug was heroin, which he is, apparently, much opposed to.  He was hoping to pay off a drug debt but the fact that he was given £500, and his debt of £5,000 was to be paid off if the run had been successful, should have drawn his attention to the contents of the stove. 

5.        We cannot separate the two accused despite the difference in their ages and their criminal records.  This was a serious and sophisticated drugs operation which, had it succeeded, could have led to death or other violent crime within this island's troubled drugs scene.  Despite counsels' potent arguments we are going to follow the conclusions of the Crown and, in particular the starting points and, therefore, Barr, you are sentenced to nine years' imprisonment and Hagen, you are also sentenced to nine years' imprisonment and we order the forfeiture and destruction of the drugs.     

Authorities

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp. 19-21; 37-40; 133.

Campbell and 2 others [1995] JLR 136 CofA.

Rimmer and 2 others [2001] JLR 373 CofA.

Whitmore -v- AG (4^th April 1995) Jersey Unreported.

AG -v- Oliver (25^th July 1997) Jersey Unreported.