Jersey Unreported Judgments

[2004]JRC095

ROYAL COURT

(Samedi Division)

 

3^rd June 2004

 

 

The Attorney General

-v-

Nazma Bibi Yaqoob

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 2^nd April, 2004, 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(2)(b) of the Customs and Excise (Jersey) 1999. Count 1: diamorphine

 

 

Age:     20.

 

 

Details of Offence:

111.28 grams of heroin - a couple of grams under 4 ounces (4 ounces =113.40 grams).  Expert opinion that this quantity would have been sold as 4 ounces of heroin.  On that basis drugs had a street value of between £34,030 - £51,030.00.  Wholesale value of between £17,010.00 - £22,680.00.  Sufficient to make up between 680 and 1,020 individual doses of heroin.  Internal concealment by courier in return for promise of £1,000 reward.

 

Details of Mitigation:

Youth - 19 at time offence committed.  No previous convictions.  Yaqoob was not a drug addict and the debt that had resulted in her undertaking the importation was not drug-related.  Co-operative with the investigating officers and pleaded guilty from the outset - guilty plea inevitable as drugs were concealed internally but the impact of this was mitigated as there was some possibility that the defendant might have mounted a defence on the ground of duress.  Most significantly, harrowing and appalling personal history as detailed in the Social Enquiry and Psychiatric Reports (mental and physical abuse as child, forced marriage abroad during which beaten and raped daily: defendant escaped to British High Commission and was repatriated to UK, continuing family pressure to repay dowry monies including threats to bring "husband" to UK); consequential mental illness (post traumatic stress disorder, generalized anxiety with panic attacks and major depression) requiring treatment and support in the future.  Social Enquiry Report described her as a vulnerable young person who had been exploited by a more powerful individual.  Consultant psychiatrist with expertise working with ethnic minority communities described defendant as a woman who had been a victim all her life.  Ultimately targeted by unscrupulous individual to act as 'mule' in the drugs trade.  Defence put before the Court extensive documentary corroboration of Yaqoob's account of her life and the circumstances leading up to the offence.  Evidence of proactive police intervention on defendant's behalf during her youth.  Evidence accepted at face value by both Crown and Court.

 

Previous Convictions:

None.

 

Conclusions:

 

3 years' youth detention (10 years' starting point).

 

Sentence and Observations of Court:

2 years' Probation to be administered by national Probation Service of England and Wales, local Probation Centre.  Yaqoob to reside at hostel in London; be referred to appropriate service for counselling in relation to post traumatic stress disorder; with the local Probation Service to secure employment, pursue constructive leisure activities and eventually find independent accommodation.

Court observed that an offence of this nature, "invariably leads to a prison sentence".  The starting point suggested by the Crown was right.  This, however, was a truly exceptional case.  The Court referred to the extensive corroboration put forward by the Defence for the defendant's account vis-à-vis her background, the element of duress to which she was subject immediately preceding the offence and to her significant co-operation.  The circumstances were wholly exceptional.  Notwithstanding this, two of the six Jurats considered that commercial drug-trafficking is such a heinous offence that the only appropriate sentence was one of imprisonment and would have followed the Crown's Conclusions.  The other four Jurats, however, considered the case to be so exceptional that the Court should exercise its prerogative of mercy.  Ordered accordingly.

Court ordered forfeiture and destruction of drugs - Article 29 Misuse of Drugs (Jersey) Law 1978.

Confiscation order granted in nominal account of £1.

 

 

A. J. Olsen, Esq., Crown Advocate.

Advocate C.M. Fogarty for the Defendant.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        You imported 111 grams of heroin concealed inside your body and this had a street value of some £34 - £51,000 in Jersey.  Such conduct invariably leads to a prison sentence.  In terms of a prison sentence, the starting point taken by the Crown of 10 years, being the bottom of the applicable Rimmer bracket, is in our judgment correct.

2.        Your advocate has asked that we treat this as an exceptional case.  She is supported in this by the recommendation from the Probation Service.  In particular it is suggested that you would benefit from going to a refuge in London which specialises in offering housing, counselling, practical support, and advice to women who have experienced the abuses of a forced marriage system and domestic abuse within an Asian family setting.

3.        You have no previous convictions, you have never been involved in drugs and you are only 20.  Sadly this is not unique in the case of persons who import drugs into Jersey.  What is said to be exceptional in your case is your background and the history of events which, we have heard, has been independently verified from a large number of sources, including the police, the British High Commission and various hostels.  We, therefore, have considerable confidence that what we are being told is correct whereas this is not always the case.

4.        We have to say it is only if one has had the opportunity of reading all the papers put before us that one can understand the full horror of what you have been subjected to during your life.  Just to give a flavour of it, we would summarise what the psychiatric report says as follows:

"Nazma Yaqoob is a twenty-year old woman who has been a victim all her life, having grown up in a Muslim household intent on upholding traditional values whilst living in a culture which also offers the possibility of a different way of life.

In order to enforce their way of life her family subjected Nazma to physical and mental cruelty from her early childhood.  She became so unhappy at home and at school that she took an overdose of her father's tablets at the age of 10 and again at 17 after her parents had stopped her from continuing an apprenticeship in administration. 

Her family exerted extreme control over her life to the extent that they tricked her into a forced marriage - we would interpose that this was in Pakistan - to which she was taken under a trick and in which she suffered repeated rape and beatings.  She was threatened at gun point before her marriage".

5.        Furthermore the psychiatric report shows that you were suffering from a variety of illnesses which have affected your mental state, including post traumatic disorder, general anxiety and major depression and that you were suffering from these at the time of the offence.

6.        The clear evidence is that this rendered you particularly vulnerable to threats and intimidation, and what happened in relation to this offence was that someone who befriended you and whom you trusted then threatened you into undertaking this drug's run and made it clear that you would be physically assaulted if you did not.  We would emphasise that there was no question of a drug debt here which gave rise to the threats, as is so often the case.

7.        It was also the case that you had been put under pressure by your family; your mother had taken your passport and had said that unless you came up with the sum of £2,000 within two weeks in order to repay jewellery which had been provided by your husband's family, she would ensure that your husband came across to England with the result that the beatings and the raping would continue.

8.        For all of these reasons your advocate considered running the defence of duress and it is clear from the evidence that this could have been a defence which you could properly have run.  However, the medical evidence also makes it clear that it would be detrimental to your mental health if you were to undergo the court process and, in particular, cross-examination about your history.  Therefore, the defence have felt unable to bring forward the defence of duress.

9.        The Jurats are unanimous in finding that all of these circumstances are exceptional.  However, two Jurats are of the view that, despite this, the quanitity of the drugs and the harm and suffering that this amount of heroin would have caused to young people in Jersey means that, notwithstanding the very powerful mitigation, a sentence of imprisonment cannot be avoided.  However, four Jurats take the view that this combination of circumstances is so exceptional that, as an act of mercy, they can see their way not to imposing a custodial sentence. 

10.      You should realise how fortunate you are.  This Court has never before, so far as we are aware, imposed a non-custodial sentence for an offence of this gravity.  Therefore the sentence is going to be that you are placed under a probation order for 2 years and the intention is to achieve the objective set out in paragraph 33 of the Social Enquiry Report; in particular your residence at the hostel, your referral to the appropriate service for counselling in relation to your post traumatic stress disorder and working with the probation service to secure employment and eventually independent accommodation.

11.      If you breach the order, - if, for example, you commit any further offences; if you do not do exactly what you are told by your probation officer; if you do not respond fully to the refuge where you are being sent and co-operate fully, and work to try and overcome your difficulties then you can be brought back here at any time and at that stage I have to tell you would inevitably go to prison.  The forfeiture and destruction of the drugs is ordered.

Authorities

Criminal Justice (Young Offenders) Jersey) Law 1994: L'94: Articles 3 and 4.

Rimmer & Ors. -v- A.G. [2001]JLR373.

Whitehouse -v- A.G. (18^th July, 2002) Jersey Unreported; [2002/134].

A.G. -v- Sweeney [2003]JRC122.

Misuse of Drugs (Jersey) Law 1978: Article 29.