Jersey Unreported Judgments

[2003]JRC033

ROYAL COURT

(Samedi Division)

 

13^th February 2003

 

 

The Attorney General

-v-

Reginald Bruce Foster

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10th January, 2003, following a guilty plea to:

 

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:cannabis.

 

Age:     53.

 

Details of Offence:

 

Foster arrived in Jersey at the Harbour in his works van.  He was employed as a lift engineer and stated that he was in Jersey for work purposes.  Following a positive indication given by the Customs Drugs Dog, 11,858.72 grams of Cannabis Resin was discovered.  The seizure had a street value of £69,120 and a wholesale value of £48,000.  Foster was not a drugs user and advised in interview that he did not owe any money nor was he in trouble.  He agreed to undertake the importation for the sum of £1,000.00 plus travelling expenses.  He had been given the cannabis which he then had hidden in his van.

A starting point of 7 years' imprisonment was taken by the Crown. 

A Confiscation Order in the sum of £178.89 was also sought.

 

Details of Mitigation:

 

In the Crown's opinion the relevant mitigation was his guilty plea albeit it was inevitable and therefore not deserving of a full one-third reduction.  Foster initially lied to Customs Officers and produced false documentation to support the lie that he was in Jersey on legitimate business.  He had been more forthcoming during his Record of Interview and whilst he did have a criminal record he had been out of trouble for approximately 30 years and therefore entitled to credit for that factor.

The defence contended that the starting point was too high and that a more appropriate starting point would be one of 6 years.  Those contentions were based upon the quantity of drugs involved and the level of involvement of Foster.

By way of mitigation the defence raised 6 points:

(1)           Level of co-operation.

(2)           Guilty pleas.   It was suggested by the Defence that he was entitled to his full one-third.

(3)           Lack of criminal record.

(4)           Stability of present circumstances including employment.  Same employer for 18 years etc.

(5)           Extensive work in the local community.

(6)           Remorse.

Character references were provided.

 

Previous Convictions:

Six previous convictions all prior to 1973 involving dishonesty, possession of drugs, possession of offensive weapon and assault on Police.

 

Conclusions:

 

Count 1:

4½ years' imprisonment

 

Sentence and Observations of Court:

 

Conclusions granted.

Confiscation Order in the sum of £178.89.  The Royal Court summarised the facts and cited from the case of Rimmer -v- The Attorney General.  The Court noted and summarised the six mitigating factors put forward by the Defence.  Foster was not a young man but rather a mature man.  The Court had regard to the references produced.  The learned Jurats were not in total agreement but the majority were in agreement that the starting point of 7 years was correct and that the Conclusions moved for were correct.

 

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

Advocate J. Bell, for the Defendant.

 

 

JUDGMENT

 

 

THE commissioner:

1.        On the 19^th November, Foster was stopped driving a Citroen work's van as he came off the ferry from Portsmouth.  He denied having drugs even though the drugs dog, Toby, had given a positive reaction.  Six packages of drugs were eventually found behind a panel secreted at the rear of the vehicle.  The packages, on analysis, were found to contain 48 bars of cannabis with a total weight of 11,858.72 grams of cannabis with a street value of £69,120 or a local wholesale value of £48,000.

2.        We have had regard to the Court of Appeal judgment in Campbell & Others -v- A.G. (1995) JLR 136 CofA, which gives a starting point of between 6 to 10 years for 10 - 13 kilograms.  Foster is 53 years old and his record has been clean for 30 years.  It is astonishing that he apparently carried out this drug run for £1,000.

3.        The Crown's starting point is 7 years.  This importation has apparently been made simply for financial greed.  Advocate Bell argues that the starting point is too high.  His two main reasons are centred on the amount of the cannabis and the level of involvement.  If we look at what was said in the case of Rimmer, Lusk  & Bade -v- A.G. [2001/148] CofA it reads at paragraph 23;

"As this Court stated at pp.144-145 in Campbell:

"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."

What the Court in Campbell had in mind here was drug trafficking on a commercial basis.  In the judgment of this Court there is a clear distinction to be drawn between the different levels of involvement in the drugs trade.  For example, to sentence the simple "mule" and the ultimate drugs "baron" identically would be both inappropriate, having regard to the degrees of harm which those at each level inflict on society, and therefore the different degrees of culpability, and plainly unfair to defendants at the lower levels of involvement.  The links in the chain are not of equal strength or significance in the sentencing context."

4.        Advocate Bell has given us basically six grounds of mitigation.  They can be centred on the basic level of co-operation, the guilty plea, the lack of recent convictions, the stability of the defendant, that is his family and employment stability, his work in the community and his remorse.  We take each of those in turn: First, Foster has admitted to the cannabis importation.  He has given some information about his suppliers but none of this, of course, led to any arrests.  At interview he said that he was suffering stress from his work schedule.  Secondly, he entered a guilty plea on his first appearance, and Advocate Bell argues that this was not inevitable, and for that he should be given his full one-third.  Thirdly, his last conviction was 30 years ago and we accept that he comes technically to this Court as a first offender.  Fourthly, he is a family man, supportive of his family with three grown-up sons and he has a very good work record.  Fifthly, he has carried out extensive work in the community and has given his life to boxing.  And sixthly, there is his remorse which is set out in the Social Enquiry Report.

5.        On the distaff side, of course, this is not a young man; this is a mature person in good employment, who for our purposes has no criminal record.  We have read the references, including that of a young boxing champion called Webb.  As a result of Advocate Bell's cogent arguments before us, the Jurats are not in total agreement, some would reduce the starting point but I have to say that the majority will follow the conclusions of the Crown.  Therefore, you are sentenced to 4½ years' imprisonment and we order forfeiture and destruction of the drugs.

Authorities

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

Rimmer, Lusk  & Bade -v- A.G. [2001/148] CofA