Jersey Unreported Judgments

 2002/39

ROYAL COURT

(Samedi Division)

 

12^th February 2002

 

 

The Attorney General

-v-

James O'Brien;

Jonathan David Smith;

Leslie Lynn.

 

Sentencing by the Superior Number of the Royal Court, to which the Defendants were remanded by the Inferior Number on 11th January, 2002, following guilty pleas to the following counts:

 

James O'Brien

 

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: cannabis resin.

 

Age:     37.

 

Details of Offence:

O'Brien was working on a friend's boat.  He took the boat with Smith and travelled to the French coast where they collected 240 bars of cannabis resin having a total weight of 59,728.3 grams.  The cannabis had a street value of £345,600 and a wholesale value of between £240,000 and £264,000.  The vessel returned to Jersey and in the early hours of the morning stopped in Grouville Bay on the shoreline adjacent to the Royal Jersey Golf Course.  The vessel was then met by Lynn.  Smith got off the boat.  Smith and Lynn then carried a holdall each containing the cannabis from the beach onto the golf course.  They were arrested.  O'Brien returned the vessel to St. Aubin's Harbour where he was arrested.  In interview Smith stated that he had been asked by another male to go to France in order to collect the cannabis which was then landed on Grouville beach.  He denied knowing the person on the beach or anybody else on the boat with him.  He claimed that he was to be paid £1,000 for his involvement.  Lynn answered 'no comment' to the questions as did O'Brien in relation to his involvement in the importation.  Data retrieved from the mobile phones recovered from the three accused showed that they had been in contact over the relevant period and data retrieved from the GPS demonstrated the route that the vessel had taken to and from France.  This was the largest consignment of cannabis resin seized to date by the authorities and the Crown took as its starting point a sentence of 13 years.  It was the Crown's case that all three men were equally culpable as the importation could not have been completed without the assistance of all three men.  The Crown contended that the accused were not entitled to the full one-third credit for their guilty pleas, none of the men had been particularly co-operative; none of them were of good character and there was nothing exceptional by way of mitigation revealed in their Social Enquiry Reports.  It was the Crown's recommendation that the starting point in respect of each of the accused be reduced by one-third.  Count 2 on the indictment related to a personal quantity of cannabis valued at £16.97 found at the home address of Smith during a subsequent search.

 

Details of Mitigation:

Defence counsel contended that O'Brien was not heavily involved in this offence.  No drugs were found either on him or on the boat and he should therefore be given full credit for his guilty plea.  Character reference were provided and it was contended that O'Brien was not a professional drug trafficker.  It was contended that the starting point sought by the Crown was excessive and reliance was placed upon the cases of AG-v-Dicker, Driscol and Wakeham and AG-v-Travis, Culkin and Munroe.  Weight was only one of the factors to be taken into account and the Court should have regard to the actual involvement of the individual accused.

 

Previous Convictions:

None for drugs; motoring, larceny and public order offences.

 

Conclusions:

 

Count 1:

8 ½ years' imprisonment (13 years' starting point).

 

Sentence and Observations of Court:

 

Count 1:

8  years' imprisonment (12 years' starting point).

 

This is the largest importation before the Court to date.  O'Brien and Smith went by boat at night and collected the cannabis from a beach in France.  Lynn met the Boat at Grouville where Smith and Lynn then carried the cannabis ashore.  They were both arrested.  O'Brien was arrested when he arrived back at St. Aubin's Harbour with the boat.  All three became involved for reward.  Smith said his payment was £1,000 and Lynn now says his payment was between £500 - £1,000.  O'Brien claims that he was to be paid an unspecified amount.  Little weight can be placed upon such assertions made before the sentencing Court when nothing was said to the police at the time of interview.  The Court was going to sentence on the basis that this was an importation for reward although another person was to be responsible for the distribution of the drugs.  Campbell & Ors-v-AG sets a starting point for 30 plus kilos of Class B drugs at a minimum of 10 years.  The case of AG-v-Dicker & Ors involved 55 kilos which is the closest quantity in weight and the Royal Court took a 12 year starting point in that case.  The Crown suggests 13 years as a starting point based upon the fact that this is the largest amount imported to date.  Defence counsel contend that the starting point should be lower than Dicker as there was a greater degree of pre-planning in that case although the drugs were imported at the behest of someone else in that case as well.  In AG-v-Travis & Ors there was a greater value overall of the drugs imported and the level of involvement was greater.  A 12 year starting point was taken.  There is no material difference on the facts of this case and those in Dicker and the Court is of the view that Dicker fixed the appropriate starting point for such importations.  The starting point in the cases of O'Brien and Smith is therefore 12 years.  Advocate Juste suggested a lower starting point for Lynn as he was simply meeting the boat and carrying the drugs off the boat.  His involvement was therefore less and the Court is taking a starting point of 11 years.  There is mitigation available in the case of each of the accused.  For O'Brien there was his guilty plea and references and a letter from his mother.  He had no previous convictions although he has a past record and in the Court's view the correct reduction is one of four years.  In the case of Smith, he has a guilty plea, references and no previous drug offences, although he is not of previous good character.  When interviewed by the police he was co-operative as to his part and the Court believes that, where an accused person shows immediate co-operation, greater mitigation should be given to that person in contrast to someone who either answers 'no comment' or lies.  The correct reduction in this case is therefore 4½ years.  Lynn has the benefit of a guilty plea with references although he does have previous drug offences.  The appropriate reduction is therefore 4 years.

 

Jonathan David Smith

 

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: cannabis resin.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 2: cannabis resin.

 

 

Age:     26.

 

Details of Offence:       See O'Brien.

 

Details of Mitigation:

He was the youngest of the three accused and the only one to admit to his involvement.  Allowance should be made for his limited involvement.  He was not involved in the planning nor would he share in any profit from dealing on the street.  He expected to receive one payment of £1,000.  The accused agreed to be involved when approached in a public house when he was drunk.  Had wanted to drop out but was frightened of reprisals.  Had been in regular employment and had a girlfriend but had incurred debts and had seen this escapade as a way of clearing those debts.  A letter of remorse and references from employers and friends were handed to the Court.  It was suggested that a sentence of 8½ years was excessive given his culpability and involvement.  The starting point of 13 years was too high particularly in contrast to the case of AG-v-Dicker & Ors and also having regard to the fact that the maximum sentence was 14 years.  It left insufficient room for future sentencing of more heavily involved drug traffickers.

 

Previous Convictions:

No drug offences; motoring, larceny and public order offences.

 

Conclusions:

 

Count 1:	8 ½ years' imprisonment (13 years' starting point).
Count 2:	2 weeks' imprisonment, concurrent

 

Sentence and Observations of Court:

 

Count 1:	7 ½ years' imprisonment (12 years' starting point).
Count 2:	2 weeks' imprisonment, concurrent

See O'Brien: Observations of Court.

 

Leslie Lynn

 

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: cannabis resin.

 

Admitted Breach of a 1 year probation order made in the Magistrate's Court on 12th August, 1999, on a guilty plea to 1 count of wasting police time.

 

Age:     44.

 

Details of Offence:       See O'Brien.

 

Details of Mitigation:

Lynn's mother had died approximately three weeks prior to offence and he was depressed and drinking excessively.  He had accepted the chance to earn some money whilst at a low ebb and once again it was claimed that he had little involvement.  His understanding was that he was to carry one bag of cannabis onto the beach where it would be left in a bunker to be collected later by somebody else.  He was therefore surprised when another man got off the boat carrying another holdall.  Lynn could be distinguished from the other co-accused as he had not been involved in their journey to collect the cannabis; nor was he involved in the onward sale of the cannabis.  He had entered a guilty plea at the earliest opportunity.  It was contended that the Court should reduce the starting point by two years to reflect his lesser involvement.  Character references were placed before the Court.

 

Previous Convictions:

Possession of amphetamine sulphate and possession with intent to supply same.  Importing cannabis and possession of cannabis (all these offences were at the lower end of the scale and dealt with by the Magistrate's Court).  Motoring and other public order offences.  He was in breach of a probation order and community service order imposed in 1999 by the Magistrate's Court.

 

Conclusions:

 

Count 1:

8 ½ years' imprisonment (13 years' starting point)

 

Probation Order to be discharged.

 

Sentence and Observations of Court:

 

Count 1:

7 years' imprisonment (11 years' starting point)

 

Probation Order to be discharged.

See O'Brien: Observations of Court.

 

J. C. Gollop, Esq., Crown Advocate.

Advocate R. Tremoceiro for J. O'Brien;

Advocate C.R.G. Deacon for J.D. Smith;

Advocate R. Juste for L. Lynn.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        This was the largest importation of cannabis resin yet to come before this Court.  O'Brien and Smith went by boat at night to pick of 59.7 kilos of cannabis resin from a beach in France.  They then brought the boat back to Grouville beach where at 4.35 in the morning, they were met by Lynn who was waiting on the beach with a torch.  Lynn and Smith each carried a holdall full of cannabis resin ashore and O'Brien took the boat back to St. Aubin's Harbour.  Lynn and Smith were arrested by waiting police and customs officials.  O'Brien was arrested when he came ashore later at St. Aubin's Harbour.

2.        Each defendant asserts that he was asked to undertake this importation for reward.  Smith asserted at interview that he was to be paid £1,000.  Neither Lynn nor O'Brien said anything in this respect at police interview but Lynn now asserts that he expected to receive some £500 to £1,000 and O'Brien says that he was to be paid an unknown amount.  We have to say that little weight can be placed on assertions made so late in the day when nothing is said at police interview but the Court proceeds on the basis that this was an importation carried out for reward but at the request of another who was to undertake the on-sale of these drugs.

3.        The guideline case of Campbell & Ors-v-AG (1995) JLR 136 CofA suggests a minimum of 10 years starting point for amounts in excess of 30 kilos of cannabis resin.  The closest case to this one is that of AG-v-Dicker & Ors (28^th October, 1998) Jersey Unreported, where 55 kilos of cannabis resin and a small amount of herbal cannabis was imported by boat at Archirondel.  A starting point of 12 years was taken in that case.  The Crown here suggests a starting point of 13 years in view of the slightly larger amount of cannabis resin involved.  Defence counsel, on the other hand, say that the starting point should be less than that in Dicker because the facts of that case, with reference to the purchase of a boat and motorcycles, suggest a greater degree of preplanning, although it is clear that the drug run in that case was also being carried out at the behest of someone else and the defendants were simply being paid fees.  Counsel also referred to the case of AG-v-Travis & Ors (8^th May, 2000) Jersey Unreported where they say that drugs of a greater value were imported and the level of involvement was greater; again a 12 year starting point was taken.

4.        We have concluded that there is no material difference between this case and Dicker and we think that Dicker fixed on the appropriate level.  We therefore conclude that a 12 year starting point is correct for O'Brien and Smith.  Miss Juste has argued that a lesser starting point should be applied in the case or Lynn on the basis that his rôle was limited to meeting the boat on the beach and helping to carry the drugs to a nearby location.  We think, on balance, that the level of Lynn's involvement was sufficiently less to justify a minor alteration to the starting point and we therefore take a starting point of 11 years in his case.

5.        We then turn to consider the mitigation in respect of each defendant.  In the case of O'Brien there is a guilty plea; we have read references supplied on his behalf together with a letter from his mother; it is also the case that he has no previous drug offences, although he does have previous convictions of a different nature.  Taking all the mitigation in the round, we think that the correct reduction in his case is one of 4 years.

6.        Turning to Smith, he has the advantage of a guilty plea.  We have read the references in his case.  He also has no previous drugs convictions, although he has convictions for other offences.  The difference in his case is that when interviewed by the police he was co-operative to the extent that he immediately told the police of the part that he had played in the offence.  The Court believes that those who show immediate co-operation by confessing their part are entitled to greater mitigation than those who say 'no comment' or who lie.  In the circumstances we think that the correct deduction in his case is one of 4½ years.

7.        With Lynn, he again has the advantage of a guilty plea.  We have read the references in his case.  He is younger than the others and that goes to his credit.  As against that he does have previous drugs convictions although they were not of the most serious type.  All in all we think the correct deduction in his case is one of four years.

8.        Stand up, please.  O'Brien, the sentence in your case is one of 8 years' imprisonment.  Smith, in your case it is 7½ years' imprisonment on count1; 2 weeks' imprisonment, concurrent, on count 2.  Lynn, in your case the sentence is 7 years' imprisonment; we discharge the existing probation order and we order the forfeiture and destruction of the drugs.

9.        Finally, we would like to commend the police and customs officers in this case who were clearly on top of the situation and alert at this hour of the night.  We commend them on their success in stopping this substantial quantity of drugs coming onto the streets of the Island.

 

Authorities

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

AG-v-Dicker & Ors (28^th October, 1998) Jersey Unreported; [1998/216].

AG-v-Travis & Ors (8^th May, 2000) Jersey Unreported; [2000/80].