Jersey Unreported Judgments

 [2003]JRC215

ROYAL COURT

(Samedi Division)

 

24^th November, 2003

 

 

The Attorney General

-v-

Graham Frazer

 

First Indictment

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded by the Inferior Number on 24^th October, 2003 following a guilty plea to:

 

1 count of:

being knowingly concerned with 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.

 

Second Indictment

 

1 count of:

grave and criminal assault (Count 1).

 

Age:     36.

 

Plea:    Second Indictment: Count 1: guilty.

 

Details of Offence:

The defendant, a Jerseyman, was stopped as he disembarked from Condor at Elizabeth Terminal.  He was found to have 10.41 grams of heroin concealed internally.  He stated that he had purchased the drug on the boat from a contact who had sold it to him for the English price of £500.  The Crown accepted that it was for his personal use.

 

The defendant was released on bail.  The following day he was drunk and became involved in an incident during which he threw a glass into the face of his best friend.  The impact caused a laceration.  Although initially reported to the police, his friend forgave him for the attack.

 

Details of Mitigation:

Guilty plea, co-operation, suffered from paranoid psychosis for 15 years, depression caused by death of mother, no previous drug convictions, drugs for personal use.

 

Previous Convictions:

Various previous convictions including several for violence, although none for drugs offences.

 

Conclusions:

 

1st Indictment:	Count 1: 5 years' imprisonment (7 year starting point)
2nd Indictment:	Count 1: 1 year's imprisonment, consecutive

 

 

Sentence and Observations of Court:

 

1st Indictment:	Count 1: 3 years' imprisonment
2nd Indictment:	Count 1: 1 year's imprisonment, concurrent

 

The Court felt able to adopt a starting point of 7 years in relation to the importation.  The Court also took into specific account the defendant's psychiatric condition, which it noted was very powerful and unusual mitigation.

 

C.M.M. Yates, Esq., Crown Advocate.

Advocate J. Bell for Defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        You are before the Court for two offences.  In August you imported 10 grams of heroin.  The Court accepts this was for your own use.  In October, whilst on bail for the importation offence, you threw a glass at your friend Mr Goguelin, whilst in his home, striking him on the forehead and causing a laceration.  But fortunately he was not seriously injured.

2.        Turning to the importation offence, we must first consider the starting point.  Here we face a difficulty.  In the case of Gregory -v- A.G. [1997] JLR 1, the Court of Appeal said that the Campbell guidelines did not apply to cases of importation where drugs were imported for the personal use of the importer.  But in the recent case of Conquer -v- A.G. (4^th April 2002) Jersey Unreported; [2002/73], the Court of Appeal said that the bands in Rimmer & Ors [2001] JLR 373, which is the successor guideline case to Campbell [1995] JLR 136, should still apply as the starting point in all cases of importation because to do otherwise might lead to artificial and subjective tests being introduced into situations where no such complications need arise.

3.        Faced with this apparent difference of view we believe we should follow Conquer.  First it is the more recent decision; secondly we agree that Gregory can lead to difficulties because the facts are usually solely within the knowledge of the defendant and can only realistically be gainsaid by reference to the amount of the drug.  However we understand Conquer to be saying that the fact that the drugs are for the personal use of the importer may be a mitigating factor, but clearly the force of that will depend upon the amount.  If the amount is small it may well be a powerful mitigating factor.  As the amounts get larger it will reduce and eventually disappear altogether.

4.        In this case the Crown has asked for a starting point of eight years.  Mr Bell has submitted that we should move below the Rimmer guidelines.  He accepts that those guidelines are applicable but says that this is one of those exceptional cases where we should go below it.  We do not think there is anything exceptional in that sense, but on the other hand we think that the minimum starting point of seven years correctly reflects the defendant's involvement in this case.

5.        As to the assault, it is worth noting that the victim, who is a friend of the defendant, has forgiven him for what occurred and it is clearly something which happened on the spur of the moment when the defendant was under the influence of alcohol.

6.        Mr Bell submits that this is an exceptional case and that we should proceed by way of a non-custodial sentence.  The Court has carefully considered those submissions but has decided on balance that it cannot proceed in that way.  These two offences, taken in the aggregate, are too serious to be dealt with by way of a non-custodial sentence.

7.        There is however very powerful and unusual mitigation.  There are the commonplace mitigating factors of the guilty plea and considerable cooperation in this case; the fact that he has no previous drugs convictions - although he does have some others - and his obvious remorse.  But what is particularly significant in this case is that the defendant suffers from a psychiatric condition.  We have had the benefit of a psychiatric report.  It is clear that that condition is exacerbated by his drinking problem and, in recent times, his heroin problem. 

8.        The defendant has however shown that he can conquer these because, as we have seen from the reports, he managed to stop drinking for some six years when in a relationship with a woman who was a Jehovah's Witness.  We have read carefully the reports which suggest that there is much to be said for this man.  In all the circumstances we think that we can considerably reduce the conclusions and we think the right aggregate sentence for both offences is a total of three years' imprisonment.

9.        On the first indictment, the sentence is three years' imprisonment, on the second indictment, one year's imprisonment.  That would normally be consecutive because it was nothing to do with the first, but taking into account the totality principle and our assessment of what is reasonable for you as an individual to be punished in this case we think, unusually, we can make it concurrent.

10.      We would finish by saying that it is clearly very important, whilst in prison, that the defendant receives treatment and takes his medication and we urge the prison authorities to do what they can to give him every possible assistance in this respect.

11.      We order the forfeiture and destruction of the drugs.

Authorities

Rimmer & Ors [2001] JLR 373.

A.G. -v- Muat (16^th March 1998) Jersey Unreported; [1998/52].

Conquer -v- A.G. (4^th April 2002) Jersey Unreported; [2002/73].

Mallet -v- A.G. [2000] JLR 256.

A.G. -v- Harrison [2003] JRC 161.

A.G. -v- Godfrey [2003] JRC 083B.

Gregory -v- A.G. [1997] JLR 1.

A.G. -v- Taylor (29^th July 1994) Jersey Unreported; [1994/159].

Campbell [1995] JLR 136.