Jersey Unreported Judgments

 2002/48

ROYAL COURT

(Samedi Division)

 

28^th February 2002

 

 

The Attorney General

-v-

Colin Ernest Valler

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 25th January, 2002, following a guilty plea to the following charges:

 

2 counts 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; Count 2: MDMA.

 

 

Age:     57.

 

Plea:    Guilty.

 

Details of Offence:

The accused was arrested as he drove a car of the car ferry from Poole at Elizabeth Harbour.  Inside the hub of the spare tyre was hidden a package containing 5,007 ecstasy tablets.  They had a street value of between £61,000 and £105,000, and a wholesale value of between £30,000 and £50,000.   Inside the driver's door panel was concealed a further package containing four separate quantities of heroin.  The total quantity of heroin thus seized was 497.78 grams, with a purity of 71.75%, thereby making it available for further dilution.  The street value of the heroin was between £150,000 and £225,000 and the wholesale value was between £75,000 and £100,000.  When interviewed the accused told the customs officers that he had been requested to do a run down to Jersey from Glasgow for a reward of £3,000.  Prior to doing the run he was told to take his car to a location in Glasgow city centre and to leave the car unattended and unlocked for a period of ¾ of an hour.  On his return to the car the accused knew that something had been secreted inside it, but he suspected that it was illegal currency, and did not, so he said, believe it to be drugs.  On the advice of those instructing him he had brought his sister-in-law with him because he had been told that it would look better if he had a woman travelling with him.  From the time he was charged he maintained a not guilty plea.  His defence appeared to be that an innocent belief that the illicit cargo was currency, rather than drugs, entitled him to an acquittal.  Some ten days before his trial was due to commence, he decided to change his plea to guilty.  Thus the guilty plea came very later in the day. 

 

Details of Mitigation:

The accused had no previous drugs convictions although he did have an extensive criminal record dating back some years.  For the purpose of moving sentence, the Crown ignored the previous convictions.  The accused was in ill health.  He had a serious heart condition and was suffering from bowel cancer.  There was a strong possibility that he would die whilst in prison, given his age and his health problems.  He had pleaded guilty, albeit late in the day and had therefore avoided the need for a trial in circumstances where a conviction was not guaranteed.  He had four children, one of whom was seriously mentally handicapped.  He was motivated to do the run so as to generate some income for his family.  His health had prevented him from earning for ten years and instead he had lived off benefits.  He was generally a man who had fallen on hard times after an industrious working life.

 

Previous Convictions:

Extensive but nothing drugs related.

 

Conclusions:

 

Count 1:	11 years' imprisonment;
Count 2:	10 years' imprisonment, concurrent.

 

 

Sentence and Observations of Court:

The Court granted the Crown's conclusions thus sentencing the accused to 11 years' imprisonment on count 1, and 10 years' imprisonment in respect of count 2, both sentences to be served concurrently.  The Court also ordered the forfeiture and destruction of the drugs.  The Court observed that this was an unusual case insofar as a very substantial quantity of two different types of Class A drugs had been seized at the same time.  The Court of Appeal had helpfully laid down guidelines to identify which sentences would be appropriate for certain quantities of Class A drugs.  No guidelines were, however, available for circumstances in which two very substantial quantities of different Class A drugs were imported.  The Court felt that the Crown had not given sufficient or any weight to the fact that there were two very significant quantities of Class A drugs.  On that basis the Court observed there would be no additional penalty to the accused for having brought in over 5,000 ecstasy tablets as well as nearly 500 grams of very pure heroin.  The Court did not consider that to be a satisfactory situation and suggested that in those unusual circumstances the only appropriate thing to do was to move outside of the guidelines and to establish a different sentencing starting point to reflect the combination of a significant quantity of two different types of Class A drugs.  Whereas the starting point for this quantity of heroin was a sentence of 14 plus years, and the starting point of the importation of this quantity of ecstasy tablets was between 11 and 14 years, the Court reasoned that the appropriate starting point to reflect a combination of such high quantities of two Class A drugs was one of 16 years.  From that starting point the Court allowed discount for the guilty plea and the particular personal circumstances of the accused, making a total discount of five years, thus arriving at the sentence moved for by the Crown, albeit for different reasons, of 11 years for count 1.  As regards count 2, the Court also granted the Crown's conclusions by sentencing the accused to 10 years' imprisonment, both sentences to be served concurrently, making a total sentence of 11 years' imprisonment.

 

 

M. St.J. O'Connell, Esq., Crown Advocate.

Advocate L.J. Kerruish for the Defendant.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        This defendant imported 5,007 ecstasy tablets with a street value of between £60,000 and £105,000 and 497 grams of heroin with a street value of between £149,000 and £224,000.  The drugs were brought into Jersey by car.  Fortunately he was stopped at Elizabeth Harbour by customs officials.  They discovered ecstasy concealed in the spare tyre and heroin concealed behind the driver's door panel.  According to the defendant he was paid some £3,000 for the trip.  He had left the car unlocked upon instructions.  The car was removed and returned to him some 45 minutes later during which time, no doubt, the drugs had been inserted and hidden in the car.  The defendant asserted that he did not know exactly what was in the car.  However, the fee of £3,000 was a large one and he must have appreciated that whatever he was carrying was something of substantial value.

2.        Our first task is to consider the starting point for these offences.  The Crown has referred us to the case of Rimmer, Lusk and Bade-v-AG [2001 JLR 373] in relation to heroin.  That case provides that, for 400 grams and over, a starting point of 14 years upwards is appropriate.  In view of the amount in this case and having regard to the defendant's rôle the Crown takes a starting point of 14 years.

3.        In relation to the ecstasy the Crown has referred us to the case of Bonnar & Noon-v-AG (26^th October, 2001) Jersey Unreported CofA; [2001/212], where a band of 11 to 14 years as a starting point was suggested for amounts of between 4,000 and 5,500 tablets.  Again, taking into account the amount and the defendant's rôle, the Crown suggests a starting point of 13 years.

4.        This approach gave rise to an issue which the Court raised with Mr. O'Connell and with defence counsel during the course of the hearing.  Mr. O'Connell accepted that he had taken each count separately.  In other words he would have moved for the same starting point and the same sentence in relation to the heroin charge even if there had been no ecstasy charge.  The result is that the Crown is not moving for any extra punishment for bringing in some 5,000 ecstasy tablets.  The defendant would have received the same sentence even had he brought in no ecstasy tablets, or had brought in 1,000 or 5,000.  In our judgment that cannot be right.  The Court must sentence having regard to the total quantity of drugs which are involved in the particular case, whether those drugs are of the same type, or are a mix of different types.  A person who brings in 497 grams of heroin and 5,000 ecstasy tablets should receive a heavier sentence than a person who just brings in 497 grams of heroin.  We accept that the guideline cases of Rimmer and Bonnar do not deal with this particular issue but that is not surprising because the matter was not before them.  The Court of Appeal did, however, emphasise in both those cases that the bands which were suggested were only guidelines.  On occasions it would be necessary to exceed them; on other occasions a lesser band would be appropriate.

5.        The only logical solution, in our judgment, is to take a starting point for the more serious offence which takes account of the fact that there are additional drugs of a different type which are the subject of another charge but arise out of the same incident.  We emphasise that on many occasions it will not be necessary to do this; it will only be appropriate where there is a significant quantity of another drug.

6.        We would also emphasise that we are wary of the exact level of the starting point in this case being taken as any form of precedent.  Because of the way in which the Crown structured its submissions we have not had adversarial argument and we have not had considered submissions from either the Crown or the defence on the correct approach.  Normally, of course, the Court is greatly assisted by considered adversarial argument.  Nevertheless, for the reasons we have given, we do not think we can take a starting point which simply ignores the existence of the 5,000 ecstasy tablets.  Doing the best we can, in the absence of considered advice from the Crown and the defence, we think a starting point of 16 years is appropriate for an importation of this quantity of heroin and this quantity of ecstasy.

7.        However, we must of course then consider the mitigating factors.  There is the guilty plea.  This was undoubtedly something of value, although it was made late in the day and it follows that the credit given for that cannot be the same as it would have been had the defendant accepted his guilt from the outset.  The defendant has no previous drugs convictions and although he has a record for offences of dishonesty, these were comparatively minor and were a long time ago, most of them in the 70's and the last one in 1988.  He has accordingly, therefore, been out of trouble for a considerable period and we pay little or no attention to his previous record.

8.        There are two powerful additional matters of mitigation in this case.  The first is his age, he is nearly 57, but, more importantly, there is the state of his health.  We have seen this in the social enquiry report, also in a medical report, and it is clear that there is serious risk to this defendant's life expectancy because of his medical condition.

9.        In all the circumstances, therefore, we think that a greater amount can be allowed from the starting point than was originally allowed by the Crown from its starting point.  From a starting point of 16 years we think the appropriate discount is five years with the result that the conclusions will be granted.  Stand up, please, on count one, the sentence is 11 years; on count 2, the sentence is 10 years, both of those to be concurrent, and we order the forfeiture and destruction of the drugs.

 

Authorities

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

Rimmer, Lusk and Bade-v-AG (19^th July, 2001) Jersey Unreported CofA; [2001/148]; [2001] JLR 373 CofA.

Bonnar and Noon-v-AG (26^th October, 2001) Jersey Unreported CofA; [2001/212].