Jersey Unreported Judgments

[2003]JRC137A

ROYAL COURT

(Samedi Division)

 

30^th July, 2003

 

 

The Attorney General

-v-

Michael O'Brien

Yvonne Katina Edmond-O'Brien

Michael Joseph Dunne

David Jarman Lloyd

Carol Ann Lloyd

 

Sentencing by the Superior Number of the Royal Court, to which the Defendants, with the exception of Michael O'Brien, were remanded for sentence, following conviction by the Inferior Number on 5th June, 2003, as follows (Michael O'Brien was remanded for sentence following a guilty plea entered on 13^th December, 2002:

 

Michael O'Brien (on a separate indictment)

 

2 counts of:

Transferring the proceeds of criminal conduct, contrary to Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988 (counts 1 and 2).

 

Age:     56.

 

Plea:    Guilty.

 

Details of Offence: 

 

One count relating to the deposit of the proceeds of Michael O'Brien's drug trafficking into a number of clearing banks in Jersey in sums in excess of £1.6 million.

 

A second count relating to the payment of the proceeds of Michael O'Brien's drug trafficking from a number of clearing banks in Jersey by Michael O'Brien to Michael Joseph Dunne, David Jarman Lloyd and Carol Ann Lloyd by way of cheque in sums in excess of £1.6 million.

 

Details of Mitigation:

 

Michael O'Brien had previously pleaded guilty to the charges of drug trafficking in the United Kingdom and been sentenced to a six year prison sentence.  Michael O'Brien had served the required portion of that sentence.  Confiscation proceedings had failed in the United Kingdom.  The failure of those proceedings had been the trigger for the prosecution in Jersey.  The Crown only wished to prosecute Michael O'Brien in order to confiscate his assets.  Michael O'Brien had previously served a term of imprisonment for the drug trafficking and should not be sentenced to a further term.  Michael O'Brien had pleaded guilty to the charges against him.  He was a 56 year old father of one child who before becoming involved in drug trafficking had been of positive good character.

 

Previous Convictions:

 

19/11/99 Portsmouth Crown Court

 

i) Conspiracy to supply a Class A Drug, MDMA, between 01.01.97 - 31.09.98.  Misuse of Drugs Act 1971 s.4(3)(a).	Imprisonment 6 years.
ii)  Conspiracy to supply a Class B Drug, Cannabis Resin, between 01.01.97 - 31.08.98.  Misuse of Drugs Act 1971 s.4(3)(a).	Imprisonment 3 years, concurrent.
iii)  Conspiracy to supply a Class B Drug, Amphetamine, between 01.01.97 - 31.08.98.  Misuse of Drugs (Jersey) Law 1978 of Drugs Act 1971 s.4(3)(a).	Imprisonment 3 years, concurrent.
iv)  Conspiracy to supply a Class A Drug, MDMA, between 01.01.96 - 31.12.97.  Misuse of Drugs (Jersey) Law 1978 of Drugs Act 1971 s.4(3)(a).	Imprisonment 6 years, concurrent.
v)  Conspiracy to supply a Class B Drug, Cannabis Resin, between 01.01.96 - 31.12.97.  Misuse of Drugs Act 1971 s.4(3)(a).	Imprisonment 3 years, concurrent.
vi)  Conspiracy to supply a Class B Drug Amphetamine between 01.01.96 - 31.12.97.  Misuse of Drugs (Jersey) Law 1978 of Drugs Act 1971 s.4(3)(a).	Imprisonment 3 years, concurrent.
vii)  Possession with intent to supply a Class A Drug, Diamorphine between 01.01.97 - 31.08.98.  Misuse of Drugs Act 1971 s.5(3).	Imprisonment 6 years, concurrent.
viii)  Possession with intent to supply a Class B Drug, Cannabis Resin between 01.01.97 - 31.08.98.  Misuse of Drugs Act 1971 s.5(3).	Imprisonment 3 years, concurrent.

 

Conclusions:

 

Count 1:	3 years' Probation Order.
Count 2:	3 years' Probation Order.

 

Confiscation Order: £2,703,129 or 10 years' imprisonment in default of payment.

 

Sentence and Observations of Court:

 

Count 1:	4 years' imprisonment.
Count 2:	4 years' imprisonment, concurrent.

 

Confiscation Order: £2,703,129 or 10 years' imprisonment in default of payment.

 

Yvonne Katina Edmond-O'Brien.

 

1 count of:

Assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 1).

 

Age:     54.

 

Plea:    Convicted on 5^th June, 2003, on a Not Guilty plea.

 

Details of Offence:

One count relating to the deposit of the proceeds of Michael O'Brien's drug trafficking into a number of clearing banks in Jersey in sums in excess of £1.6 million.

 

Details of Mitigation:

Yvonne Edmond-O'Brien was of previous good character.  She was the wife of Michael O'Brien and the mother of their one child.  The investigation into her husband's drug trafficking and later into her money laundering had taken place over a very long time and as such had taken a considerable toll on the mental and physical health of both her and her daughter.

 

Previous Convictions:

None.

 

Conclusions:

12 year starting point.

 

Count 1:

9 years' imprisonment.

Confiscation Order: £505,028 or 5 years' imprisonment in default of payment.

 

Sentence and Observations of Court:

 

Count 1:

7 years' imprisonment.

Confiscation Order: £505,028 or 5 years' imprisonment in default of payment.

 

 

Michael Joseph Dunne

 

1 count of:	Assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 2).
2 counts of:	Assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (counts 5 & 6).

 

Age:     56.

 

Plea:    Convicted on 5^th June 2003 on a Not Guilty plea.

 

Details of Offence:

One count relating to the receipt of the proceeds of Michael O'Brien's drug trafficking from a number of clearing banks in Jersey by way of cheque in sums in excess of £1.3 million.  Two counts relating to the investment of the proceeds into two separate properties.  The first related to the purchase of an apartment in Andorra.  The second related to the purchase of The Pelican Inn, upon which David and Carol Lloyd were also charged.

 

Details of Mitigation:

 

Upon his arrest Michael Dunne voluntarily returned from Andorra to face trial in Jersey.  He had spent 12 months' remanded into custody awaiting trial.  Given the Crown's conclusion in relation to Michael O'Brien the starting point against Michael Dunne was too high and should be lowered.

 

Previous Convictions:

 

1)  27.04.59.   Birmingham Juvenile Court. i)  Theft.  Theft Act 1968 s.1.  1 Offence TIC.	Probation Order 1 year.
ii)  Burglary with intent to steal.  Theft Act 1968 s.9(1)(a).	Absolute Discharge.
2)  23.05.60.  Birmingham Juvenile Court. Theft.  Theft Act 1968 s.1.	Probation Order 1 year.
3)  05.12.62.  Birmingham Magistrates' Court. Loitering.  Vagrancy Act 1824 s.4.	Fine £5.00.
4)  23.12.63.  Birmingham Juvenile Court. Dangerous Driving. Road Traffic Act 1962 s.2.	Fine £10.00 disqualified, 6 months.
5)  11.02.65.  Hereford City Quarter Sessions. i)  Burglary and theft.  Theft Act 1968 s.9(1)(b). ii)  Possessing a Firearm whilst committing a Schedule 1 Offence.  Firearms Act 1968 s.17(2).	Borstal Training.
iii)  Taking a conveyance.  Theft Act 1968 s.12(1). 17 offences TIC	Borstal Training. Disqualified, 3 years
6)  08.01.68.  Birmingham City Quarter Sessions. Burglary and Theft.  Theft Act 1968 s.9(1)(b).  1 offence TIC.	Borstal Training.
7)  13.02.70.  Birmingham Assizes. Wounding with intent.  Offences Against the Person Act 1861 s.18.	Imprisonment 30 Months.
8)  28.10.74.  Birmingham Magistrates' Court. Wounding, Offences Against the Person Act 1861 s.20.	Conditional discharge 12 months.
9)  08.10.78.  Birmingham Crown. i)  Criminal Damage.  Criminal Damage Act 1971 s.1 (1)	Imprisonment 6 months' suspended 2 years.
ii)  Wounding.  Offences Against the Person Act 1861 s.20.	Imprisonment 9 months' concurrent.  Suspended 2 years, compensation £62.50,

 

Conclusions:

12 year starting point.

 

Count 2:	11 ½ years' imprisonment.
Count 5:	11 ½ years' imprisonment.
Count 6:	11 ½ years' imprisonment.

All concurrent.

Confiscation Order: £468,028 or 5 years' imprisonment in default of payment.

 

Sentence and Observations of Court:

 

Count 2:	9 years' imprisonment.
Count 5:	9 years' imprisonment.
Count 6:	9 years' imprisonment.

All concurrent.

Confiscation Order: £468,028 or 5 years' imprisonment in default of payment.

 

David Jarman Lloyd

 

1 count of:	Assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 4).
1 count of:	Assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (count 6).

 

Age:     60.

 

Plea:    Convicted on 5^th June, 2003, following a Not Guilty plea.

 

Details of Offence:

One count relating to the receipt of the proceeds of Michael O'Brien's drug trafficking from a number of clearing banks in Jersey by way of cheque in sums in excess of £1.3 million.  A second count relating to the investment of the proceeds by way of the purchase of The Pelican Inn, upon which Michael Dunne and Carol Lloyd were also charged.

 

Details of Mitigation:

Not yet sentenced.

 

Previous Convictions:

 

1)  16.07.63.  Shropshire Assizes.  Receiving Stolen Goods.   Common Law.	Borstal Training.
2)  05.08.65.  Ringwood & Fordingbridge Magistrates.  Burglary and Theft.  Theft Act 1968 s.9(1)(b). 1 offence TIC.	Probation Order 3 years. Restitution 12.1S.1D.
3)  17.04.70.  Jersey Magistrates' Court.  i)  Defective tyre. ii)  Driving without due care.	Fined £5.00. Fined £10.
4)  29.06.79.  Jersey Magistrates' Court.  Exceeding the speed limit.	Fined £11.00.
5)  03.07.86.  Royal Court of Jersey.  i)  Forgery.  Common Law. ii)  Uttering/obtaining. Common Law	Imprisonment 4 years. (12 counts). Imprisonment 4 years, concurrent (12 counts).
6)  22.10.02.  Cambridge Magistrates' Court.  Driving with Excess Alcohol Road Traffic Act 1988 s.5(1)(a).	Fine £450.  Disqualified, 24 months.

 

Conclusions:

12 year starting point.

 

Count 4:	11 years' imprisonment.
Count 6:	11 years' imprisonment, concurrent.

Confiscation Order: £68,000 or 1 year's imprisonment in default of payment.

 

Sentence and Observations of Court:

 

Count 4:	Sentencing adjourned.
Count 6:	Sentencing adjourned.

Confiscation Order: £68,000 or 1 year's imprisonment in default of payment.

 

Carol Ann Lloyd

 

1 count of:	Assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 3).
1 count of:	Assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (count 6).

 

Age:     53.

 

Plea:    Convicted on 5^th June, 2003, following a Not Guilty plea.

 

Details of Offence:

One count relating to the receipt of the proceeds of Michael O'Brien's drug trafficking from a number of clearing banks in Jersey by way of cheque in sums in excess of £1.3 million.  A second count relating to the investment of the proceeds by way of the purchase of The Pelican Inn, upon which Michael Dunne and David Lloyd were also charged.

 

Details of Mitigation:

Not yet sentenced.

 

Previous Convictions:

None.

 

Conclusions:

12 year starting point.

 

Count 3:	9 years' imprisonment.
Count 6:	9 years' imprisonment, concurrent.

Confiscation Order: £20,000 or 6 months' imprisonment in default of payment.

 

Sentence and Observations of Court:

 

Count 3:	Sentencing adjourned.
Count 6:	Sentencing adjourned.

Confiscation Order: £20,000 or 6 months' imprisonment in default of payment.

 

 

S.M. Baker, Esq.,  Crown Advocate;

Advocate R. Tremoceiro for Michael O'Brien;

Advocate D. Gilbert for Yvonne Katina Edmond-O'Brien;

Advocate M.L. Preston for Michael Joseph Dunne;

Advocate R. Juste for David Jarman Lloyd and Carol Ann Lloyd.

 

 

 

JUDGMENT

 

 

 

THE commissioner:

1.        The Defendant David Jarman Lloyd is suffering from a serious and possibly terminal medical condition which necessitates him attending an appointment with a consultant in London today, the date originally fixed for sentencing.  As an act of humanity to him and to his wife, Carol Ann Lloyd, the Court has agreed to postpone sentence on those two defendants until a firmer prognosis can be obtained, without giving any indication of the sentences likely to be imposed.

2.        The Court now proceeds to sentence the remaining defendants for their participation in disposing of the proceeds of the importation and dealing in drugs by the First Defendant, Michael O'Brien.  The Court does so on the basis that the dealings and the monies resulting from it were on a large scale.  When Michael O'Brien entered his plea of guilty, he purported to do so on the basis that he benefited from his dealings only to the extent of £180,000.00.  He gave evidence to this effect in the trial of his co-defendants, three of whom based their defences on his evidence. 

3.        The Jurats forming the Inferior Number trying the Defendants, carefully considered this evidence, but rejected it.  They accepted the evidence of the prosecution that this was an extensive money laundering operation, involving upwards of £1,500,000.  On the basis of what has been presented to them, the Superior Number agrees with that conclusion.  They accordingly sentence the Defendants on the basis that the extent of Michael O'Brien's dealing and the amount of monies laundered by all of the Defendants far exceeded the sum mentioned by Michael O'Brien and amounted to a total sum in the region of £1,500,000.  This is reflected in the amounts agreed to by all Counsel in the confiscation proceedings as the proceeds of drug trafficking, albeit they are appealing their convictions and at least some of them reserve the right to dispute in the Court of Appeal the amounts involved. 

4.        The Defendants are all mature people in middle-age.  Mr and Mrs O'Brien are of previous good character and the Court bears that in mind.  None of them have any previous drug-related convictions.  The Court has read all the reports placed before it including Social Enquiry reports and medical reports.  It is noted the excellent testimonials and references in the cases of Mr and Mrs O'Brien. 

5.        The Court made it plain before commencing the sentencing hearing that it did not regard itself as bound by the Crown's conclusions as to sentencing, particularly in the case of Michael O'Brien, and that it reserved the right to increase that conclusion if it felt it right to do so and to impose a custodial sentence.  The Court adopts a starting point of twelve years as proposed by the Crown.  It then looks at the position of each Defendant taking into account their individual mitigation. 

6.        The position of Michael O'Brien has given the Court special cause for concern.  First, he alone of the Defendants has pleaded guilty and is entitled to credit for doing so by a reduction in sentence.  Second, he has already received a sentence of six years' imprisonment imposed by the Portsmouth Crown Court in November, 1999, of which he served three years.  That sentence was for offences of supplying class A and B drugs.  The sentencing judge referred to the fact that Michael O'Brien had given assistance to the Police.  That is something which this Court is asked to bear in mind, although it seems that credit for it has already been given.  Nevertheless he may still face recrimination.  There is a third and, in the view of this Court, important factor which the Court bears in mind and that concerns the reason for instituting the present proceedings against Michael O'Brien.  Although he was sentenced by the English Court, that Court was unable to take confiscation proceedings against him because of an unfortunate failure to observe the time limits which govern such proceedings.  So, unless something was done, Michael O'Brien would be left with all the benefits of his criminal activities when released from prison. 

7.        Having heard submissions from Counsel and having seen certain correspondence, the Court is satisfied that the view taken by the Crown Counsel, who at the relevant time had conduct of the prosecution, was that the main objective of the prosecution was to obtain a confiscation order, rather than to seek a custodial sentence.  It was her view that, if the confiscation proceedings had been dealt with properly by the Crown Court, Michael O'Brien would not have been the subject of the present prosecution, although the other Defendants would have been prosecuted in any event.  Counsel so advised the Attorney General who accepted her advice. 

8.        It appears from emails sent by the Crown Counsel to Michael O'Brien's counsel that the Crown agreed that Michael O'Brien had the legitimate expectation that no further sentence of imprisonment would follow.  This explains the wholly exceptional conclusion of the Crown that the sentence in Michael O'Brien's case should be non-custodial.  In the Crown's narrative summary, Crown Counsel said that despite the course of the evidence heard, the Crown does not seek to resile from it.  However, the Court is not bound by that conclusion and does not agree with it.  These factors, and in particular the third of them, are peculiar to Michael O'Brien and clearly distinguish his case from that of the other Defendants.  The Court is well aware of the principals relating to disparity of sentence, but nevertheless concludes that it can and ought to pass a more lenient sentence on Michael O'Brien without offending those principals.  Nevertheless, he was the originator of these offences.  But for him, none of the other defendants would be involved or sitting where they now are. 

9.        Yvonne O'Brien does not have those advantages, that is to say of a plea of guilty or, if it be an advantage, of a previous prison sentence.  She is, of course, a woman of previous good character and we have read and taken account of the testimonials furnished on her behalf.  She was a loving mother and wife.  She has suffered a degree of punishment already.  She has suffered emotional trauma, some of which no doubt results from the delay which has occurred.  She has lost her family and her home.  Nevertheless, she played a vital role at the first and important stage of the laundering process by persistently paying large sums of money into the banking system of Jersey. 

10.      Michael Dunne cannot call in aid either a plea of guilty or a previous good character.  He played a pivotal role in removing the drugs money from Jersey and distributing and investing it outside the jurisdiction.  He has already been in custody on remand for twelve months or more which will count towards his sentence.  The Court regards his role as more far-reaching and sophisticated than that of Mrs O'Brien. 

11.      Mr O'Brien, will you stand up please.  The Court's sentence on you is one of four years' imprisonment.  Mrs O'Brien please.  The Court's sentence on you is one of seven years' imprisonment.  In O'Brien's case the sentences will be concurrent on each count.  You were convicted on only one count Mrs O'Brien.  Michael Dunne, the sentence on you is one of nine years' imprisonment on each of three counts, concurrent.  The Court orders forfeiture and destruction of the drugs seized by the Police.

(Discussion with counsel followed, concerning the application for bail pending appeal by Michael O'Brien and Yvonne Edmond-O'Brien.)

12.      The Court has made it clear on more than one occasion that it has very great sympathy for Holly O'Brien's position and that continues to be the case and, in so far as these applications are based on her welfare, we have sympathy with them.  Nevertheless, the Court cannot, we regret, act out of sympathy.  The Court is bound by legal procedures and having read the authority on this subject we cannot say that an appeal is likely to be successful.  It may or may not be successful, but the Court cannot conscientiously say that it is likely to be successful.  Therefore though we regret having to do so but, for the reasons I have explained, these applications are refused.

No Authorities