Jersey Unreported Judgments

2002/73

COURT OF APPEAL

4^th April, 2002.

Tracey Jayne CONQUER

-v-

The Attorney General

Appeal against sentence of 5 years' imprisonment passed on 10^th January, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 14^th December, 2001, following a guilty plea to:

Leave to appeal was granted by the Deputy Bailiff on 14^th February, 2002.

Advocate C.R.G. Deacon for the Appellant.

A.D. Robinson, Esq., Crown Advocate.

JUDGMENT

CAREY JA

1.        This is the judgment of the Court in respect of an appeal by Tracey Jayne Conquer ("the Appellant") who on the 14^th February, 2002, was given leave by the learned Deputy Bailiff to appeal against the sentence imposed on her by the Superior Number of the Royal Court on the 10^th January, 2002.  She earlier pleaded guilty before the Inferior Number to an indictment containing a single count of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug of Class A namely heroin.

2.        The circumstances of this case are found in the summary of facts outlined by Crown Advocate Santos Costa. They follow a pattern with which courts in these islands are all too familiar.  On the morning of the 24^th October, 2001, the Condor Express arrived from Weymouth and was met by two customs officers.  One of these had occasion to speak to the Appellant and asked her to produce her ticket.  She gave a somewhat unusual account of herself.  She said that she was intending to visit the island initially on a day trip but because of the poor weather the return sailing had been cancelled.  However, she had decided to come in any event to look for some work.  The customs officers maintained their interest in her.

3.        After not finding anything of interest in her bag they indicated that they wanted to conduct a search of her person.  As she was entitled, she asked to appear before a Jurat so he could consider her representations to the effect that this search should not take place.  That was done.  The Jurat authorised a search to take place and again nothing was found.  She was asked if she would agree to have an internal examination.  She was arrested and taken to a doctor's surgery where she refused to participate.  She went to the X-ray Department and as a result of further questioning from another customs officer at 3.55 pm she volunteered the information that she was concealing in her vagina what she thought was heroin.  An x-ray showed that she had a number of foreign objects inside her abdomen.  The result of the continued investigation was the recovery of an importation comprising firstly 16.41 grams of heroin with an average of 52 per cent by weight of diamorphine and secondly 740 milligrams of heroin with an average of 25 per cent by weight of diamorphine.  It was claimed that the street value was between £5,000 and £7,000 so the Court is concerned with what was described by the Crown as "a small commercial quantity".

4.        The Appellant's explanation for coming to Jersey had been that she was looking for work, but on being searched she only had £2.94 on her.  The Crown Advocate reported that she had not been very helpful in the answers to questions from the customs officer responding on occasions with replies such as "mind your own business". The Court has had the opportunity of looking at the Questions and Answers in more detail - (they and the antecedents were not in the bundles sent in advance of the hearing). From these we draw out a picture of an interviewee, who was not being unduly uncooperative except when the questioning turned to the sensitive issues of where she got her supplies from and how she obtained funds to pay for them. More than once her answers were to the effect that as an addict, as long she had enough heroin to support her, other problems such as how she was going to live were of no concern to her. The heroin was for her use - she had a sister to turn to if "she got stuck". She had given no thought as to what she was going to do in Jersey. She said "I came over to get away. There was no purpose".

5.        The Crown did not accept that this was an importation for personal use only on the basis that the Appellant had no other means of sustaining herself while in Jersey other than by obtaining payment for the drugs imported.  The Crown did not deny that she may have used a small amount of the importation for her own purposes and presented its conclusions that six years was the appropriate sentence with a starting point of eight years being the middle point of the first band identified in the case of Rimmer, Lusk and Bade (19^th July, 2001) Jersey Unreported; [2001/148]. 

6.        Advocate Winchester mitigated on her behalf and emphasised that the case was in the lowest band identified by that judgment.  He drew out the point that the Appellant had been a long-term heroin addict and had had a very tragic background including the surrender of her child to persons who were better able to look after it.  He claimed she used 1.7 grams of heroin a day and asked the Jurats to consider to what extent it was plausible to suggest that some of the drugs were for her personal use.  Mr. Spiegel's letter was produced which detailed her previous heavy drug use and the tragic way in which she funded her needs.  The Commissioner challenged the Advocate's submissions by pointing out that she had very little money with her and was allegedly looking for work.  The Commissioner also referred to an apparently incriminating comment that someone else may have been involved, for which an innocent explanation was tendered and accepted.  Advocate Winchester drew attention to every other point that could rightly be made in mitigation, save that he does not seem to have made anything of an injury the Applicant had received a few months previously although this was dealt with in paragraph 3 of the social inquiry report. We will come back to this.

7.        There was a conflict between what the Crown was saying and what the Appellant was saying. The Appellant in her Questions and Answers and in her instructions to her Advocate was not admitting that the heroin was anything other than for her own use. The Crown was pointing to the quantity and value of the importation and the personal circumstances and apparent impecuniosity of the Appellant to negate the suggestion that this was an importation for personal use. The Crown Advocate highlighted as a fact that she had no means of sustaining herself in Jersey other than by selling or obtaining payment for the heroin she imported. The problem about putting the case that way is that the sentencing court is led on to infer a degree of commercial activity on her part.

8.        The Appellant clearly discussed the matter with Advocate Winchester. He has been asked to comment on the advice that he gave to the Appellant and somewhat surprisingly he appears to have failed to respond.  It seems that he was displaying some concern about the wisdom of calling the Appellant to give evidence to rebut any inference the Court might properly make as to the likely destination of a consignment of this size. He had a telephone conversation with her in prison. She did not concede that the drugs were for other than personal use but chose not to jeopardise any discount to which she might otherwise be entitled by offering to amplify on oath what she told the Customs. We have some doubts, despite what appears to be the ratio in Gregory-v-AG (15^th January, 1997) Jersey Unreported CofA, as to the appropriateness of the Court when sentencing for importation holding investigations with a view to deciding whether a particular importer is going to hoard his importation for his own future use, share it with a few friends or stand on the corner of King Street selling it in small quantities to all comers.

9.        However this is not the point in issue here. The Royal Court reached this conclusion:

"We must say that we do not believe she was coming to Jersey to look for work. She was, in our view carrying drugs for reward and this was a commercial importation. Because of her drug addiction the Court accepts that a small amount of the drug may have been for her own use."

There was, as Advocate Robinson submitted in his careful analysis of what transpired below, no factual basis for concluding that she was not coming looking for work, that she was carrying drugs for reward or that only a small part of the consignment would be consumed by the Appellant. There was no factual basis upon which the Court could conclude what part if any of the consignment would have landed up in hands other than those of the Appellant. Having identified this error in the Court's reasoning we are reluctant to be drawn into further speculation. We know that the Appellant declined to enter into a factual contest, though she may not have entirely appreciated the significance of her decision. We decline proffering a view as to whether this was a case for a Newton Hearing.

10.      The offence under Article 61 of the Customs and Excise (Jersey) Law, 1999 is one of simple importation.  The gravity of the offence depends on the quantity and value of the drugs which are imported and the class to which they relate.  The larger the quantity that is imported the less likely that it will be that the Court can infer that the drugs will be used by the importer alone.  These principles can be elicited from the judgment in Gregory to which we have already referred. However, as that case showed, there does appear to be a relatively narrow class of cases where the facts are not sufficiently clear for the Court to elevate the level of criminality to that of "an offence of trafficking of [Class A] drugs on a commercial basis" to follow the words adopted by the Court in Campbell & Ors-v-AG (1995) JLR 136 CofA. We say "relatively narrow" adopting the remarks of this Court in Gregory where the Court said this:

"Mr. Clyde Smith submitted that this was going to place the Crown in great difficulty because the intention with which drugs were imported is something purely within the knowledge of the defendant and it would be very difficult, if not impossible, for the Crown to prove it.  We do not accept this comment.  It is clear from the passage which we have cited from the judgment in R. v. Dolgin that the quantity of the drug imported is a critical consideration.  If, in all the circumstances of the case, it is a relatively small amount that may show that the intention of the defendant was to put it to his own personal use.  Once the amount goes beyond a relatively small amount as it increases so it becomes increasingly suggestive of an intent to put the drugs to commercial use and it becomes increasingly difficult to regard the defendant's version as in any way plausible.  This evidence derived from the quantity of the drug is objective evidence not in any way dependent on the defendant's own account of what he intended."

When one analyses that paragraph one sees that as soon as the consignment grows to any substantial size i.e. "beyond a relatively small amount" the suggestion that there is an intent to put the drugs to commercial use becomes more compelling.  The real evidence which is going to weigh with the Court is the quantity of the drugs and not what the importer says about his intentions, which anyway might change if the circumstances of the importer change.

11.      Despite the failure of Counsel fully to alert the Court to the material differences in the prosecution and defence versions of the nature of the importation, we consider that the Court fell into error by not picking up the point and not seeking to clarify the factual basis. In the light of this error some review and downwards adjustment of the sentence is essential. However we are still left with the offence of importing a valuable consignment which apparently represented almost all the Appellant's worldly possessions. We have concluded that she is now entitled to be sentenced on the basis that the drugs were her own - they were the last thing she was going to part with and she was confident of financing her other needs from other resources, thus obviating the need for onward disposal of any part of the consignment. No one can say whether this objective would have been achieved.

12.      We repeat the fact that her offence to which she pleaded guilty was that of importing over 17 grams of heroin. After anxious consideration we have concluded that the bands in Rimmer should still apply as starting points in the case of all importation offences - to do otherwise may lead to artificial and subjective tests being introduced in situations where no such complications need arise. We regard the points arising in this case as essentially matters of mitigation personal to the Appellant.

13.      Further we are of the view that the deterioration in her condition and her increased level of consumption of heroin must have been caused in part by the horrific attack on her as described in the 'Bournemouth Echo' of 15^th February 2002. This report came out a month after her trial and was not available to the Court. Her name appears in the report, and looking back, the fact that the trial of her attacker was overhanging her life in Bournemouth does lend some credence to the claim that this importation was the unpremeditated act of a woman anxious to get away from her surroundings. We can also appreciate that she might have been a little reluctant to emphasise at her trial the fact that for some time she had worked as a prostitute, and that the attack occurred when she was engaged in that activity. Taking all the circumstances of the case we regard them as exceptional, entitling us to increase the discount and reduce the sentence to one of four years. 

Authorities

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

Gregory-v-AG (15^th January, 1997) Jersey Unreported CofA.

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

AG-v-Bailey (10^th January, 2002) Jersey Unreported; [2002/4].

Costley (1989) 11 Cr. App. R. (S) 357.