Jersey Unreported Judgments

 [2004]JRC016

ROYAL COURT

(Samedi Division)

 

23^rd January, 2004

 

 

The Attorney General

-v-

Danielle Nadia Kathleen Finnigan

 

1 count 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.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 count 2: cannabis resin.

 

 

Age:     20.

 

Plea:    Guilty.

 

Details of Offence:

An envelope addressed to the Defendant's home (but using a false name) was intercepted and found to contain heroin weighing 7.03 grams with eight percent by weight of diamorphine (count 1).  An identical envelope containing a harmless substitute powder was subsequently sent and immediately after delivery, a Drugs warrant executed.

 

The Defendant, who had opened the envelope, was arrested and during a subsequent search of her room, she handed to the Police a lump of brown resin consisting of 6.41 grams of cannabis resin (count 2).

 

During interview she admitted being a regular user of cannabis but denied to be the person destined to receive the heroin in the envelope.  However, she later pleaded guilty to both counts, and admitted to having carried out a dummy run several weeks earlier to see whether the importation would have been possible.

 

The heroin had a street value in Jersey of between £2.109.00 and £3.163.00 and a wholesale value of between £1.054.00 and £1.406.00.  In Devon, from where it had been sent, 7 grams would cost approximately £350.00 to £385.00.  The cannabis resin has an estimated street value of £36.00 and a wholesale value of £25.00.

 

Details of Mitigation:

Guilty plea, youth, low quantity and quality of drugs, imported for personal consumption, remorse, no previous drug convictions, had tried to address her addiction.

 

Defence counsel also argued that the guidelines in Rimmer should not apply.

 

Previous Convictions:

Three previous convictions, two involving offences against the person and one concerning being drunk and disorderly.  Record also showed failure to respond to non-custodial penalties.

 

Conclusions:

Starting point: 7 years

 

Count 1:	2½ years' Youth Detention
Count 2:	2 months' Youth Detention, concurrent

 

Sentence and Observations of Court:

The Court noted that despite the mitigation, the offence was a serious one that had clearly been planned, and the Defendant had failed to respond to previous non-custodial sentences.  A custodial sentence must follow.  Following Rimmer and Conquer, 7 year starting point correct, but mitigation very strong.  Accordingly, the Court felt able to reduce the Crown's conclusions: -

 

Count 1:	18 months' Youth Detention
Count 2:	1 month Youth Detention (concurrent)

 

Court also ordered forfeiture and destruction of the drugs.

 

 

C.M.M. Yates, Crown Advocate.

Advocate C.M. Fogarty for the Defendant.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        Now, Miss Finnigan, you imported 7 grams of heroin by post in order to feed your heroin habit and you did that because it was much cheaper to buy in England.  The question for this Court is whether we can proceed by way of a non-custodial sentence as your Advocate has urged upon us.  We take into account the points she has mentioned.  These include your age - you are only 20, the fact that you have no previous drug convictions, and that the Social Enquiry Report and the Drug and Alcohol Report have both recommended that you should undergo treatment in a non-custodial environment, and the voluntary steps that you have taken since your arrest to try and deal with your dependency.  We also, of course, take into account your guilty plea and the other matters urged upon us. 

2.        As you have seen, the Court has considered this carefully and has not found it easy but we are satisfied that this was a serious offence.  It involved a degree of planning, using the postal service, a false name, and a dummy run.  It also involved a not insubstantial amount of heroin; the 7 grams had a retail street value in Jersey of between £2,000 and £3,000.  The Court is satisfied that you have shown a failure to respond to previous non-custodial sentences and the offending is so serious that a non-custodial sentence cannot be justified.  Therefore we have decided we must proceed by way of a custodial sentence. 

3.        The next question is the length of sentence.  We must first consider the starting point.  Miss Fogarty has urged that the Rimmer [2001]JLR373 guidelines do not apply.  The Court is in a difficult position.  In Gregory [1997]JLR1, the Court of Appeal suggested that the Campbell [1995]JLR136 starting points, which are now reflected in Rimmer, do not apply in cases of personal importation.  But the recent Court of Appeal decision of Conquer (4^th April, 2002) Jersey Unreported; [2002/75], which was concerned with the personal importation, said specifically that in cases of all importation one must take the Rimmer starting point and then allow for the fact that it was a personal importation by way of mitigation.  We think that we must follow the clear recent decision of the Court of Appeal in Conquer and if there is a conflict between Conquer and Gregory, it is for the Court of Appeal to resolve in due course. 

4.        We therefore must take a starting point of 7 years but we emphasise there is very strong mitigation which we have summarised.  Taking all the mitigation into account that appears from the papers before us, we think the right sentence is one of 18 months and therefore you are sentenced to 18 months Youth Detention on count 1, one month concurrent on count 2, making 18 months in all and we order the forfeiture and destruction of the drugs.

Authorities

Rimmer, Lusk & Bade [2001] JLR373

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

Gregory -v- A.G. [1997] JLR1.