Jersey Unreported Judgments

[2004]JRC117

ROYAL COURT

(Samedi Division)

 

6^th July, 2004

 

 

The Attorney General

-v-

Mark Grahame Disbury;

Elsa Alexandra Presume;

Jason Paul Bayliss.

 

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded by the Inferior Number following a guilty plea entered by Mark Grahame Disbury on 6^th February, 2004 to counts 1 - 3 set out below; conviction on a not guilty plea of Elsa Alexandra Presume by the Inferior Number, 'en police correctionnelle' on 5^th May, 2004 on counts 4 and 5 set out below; and a guilty plea entered by Jason Paul Bayliss on 6^th February, to counts 8 and 9 and conviction, on a not guilty plea, by the Inferior Number, 'en police correctionnelle' on 5^th May, 2004 on counts 6 and 7 set out below:

 

 

Mark Grahame Disbury

 

2 counts 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. Count 2: cocaine.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978. Count 3: amphetamine sulphate.

 

 

Age:     38.

 

Details of Offence:

(Counts 1 - 8).  On 15^th November, 2003, Disbury arrived at Jersey airport with the drugs concealed internally, in the company of his two children, aged 8 and 12 years.  Following his arrival in Jersey, Disbury checked into the Merton Hotel.  As a result of intelligence received Police Officers were maintaining observations nearby.  A car driven by Bayliss, with Presume the front seat passenger, parked in the nearby coach bay to the Hotel.  Presume met Disbury outside the Hotel.  Disbury placed the heroin and cocaine in the car.  The car then drove off at speed into Don Road.

Upon his arrest, Disbury was found to have in his possession a small amount of amphetamine sulphate (Count 3).  During interview Disbury admitted importing the drugs into the Island and to placing the drugs in Bayliss' car.  During Bayliss' trial Disbury gave evidence that he had been a drug dealer in England for approximately 3½ - 4 years which generated profits of approximately £2,000 a week.  Disbury regarded Jersey as being a highly lucrative new enterprise. 

Police Officers gave chase after Bayliss' car which was driven erratically (Count 8).  Police Officers lost sight of Bayliss' car.  Bayliss car was subsequently stopped and Bayliss and Presume were arrested.

Police dogs undertook a search of the Les Varines area and uncovered a white package containing the heroin and cocaine.  Presume's left palm print was subsequently found to be on the white package.  Subsequent searches of Bayliss' home address, Bayliss' car and Disbury's hotel room uncovered various items of documentary evidence which confirmed that Disbury and Bayliss were in receipt of each others mobile telephone numbers with Bayliss also being in receipt of the telephone number of the Merton Hotel.  Subsequent forensic analysis of the records relating to the Merton public payphones and mobile telephones belonging to Disbury and Bayliss revealed various calls between the two on the morning of 15^th November, 2003.

(Count 9).  On 5^th November, 2003, Police Officers were on patrol in St Helier.  Bayliss was approached and found in possession of a small amount of cannabis resin for his personal use.

 

Details of Mitigation:

A native of England.  Had been a professional drug-dealer for 3½ - 4 years.  This trip was intended to be the first of many.  An aggravating feature was that Disbury was arrested in front of his two innocent children who were placed in the care of the Children's Service until returned to their mother.  Early guilty plea but there was overwhelming evidence against him.  Disbury provided a letter to the Court expressing his remorse over the use of his two children.  Difficult childhood.

 

Previous Convictions:

A number of drug-related offences and offences of dishonesty.

 

Conclusions:

 

Count 1:	9 years' imprisonment.  (Starting point: 13 years).
Count 2:	7 years' imprisonment. (Starting point: 10 years)/
Count 3:	1 month imprisonment, all concurrent.

£210 confiscation Order.

 

Sentence and Observations of Court:

 

There is no doubt that Disbury, as a drugs baron, deserved a long term of imprisonment.  Motivated by greed and the offence made more serious by the use of his children so that he could move more freely through Customs.  An additional penalty is imposed for the cocaine.  Crown's conclusions agreed.

 

 

Elsa Alexandra Presume

 

2 counts of:

Being knowingly concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978. Count 4: diamorphine. Count 5: cocaine.

 

Age:     22.

 

Details of Offence:

See Disbury, above.

 

Details of Mitigation:

A resident of Jersey and a long time heroin addict.  Considered by the Crown to have acted as Bayliss' agent.  Accepted by the Crown that Presume is not a dealer in commercial quantities of drugs.  Refused to co-operate throughout and lied during interview.  A three day trial took place during which Presume gave evidence under oath that it was her intention to collect three £50.00 score bags of heroin from Disbury on Bayliss' behalf.  Only mitigation was residual youth.  References of good character put before the court.  Determined to overcome her addiction.

 

Previous Convictions:

One previous conviction for the importation of a commercial amount of heroin.

 

Conclusions:

 

Count 4:	6½ years' imprisonment.  (Starting point:  8 years).
Count 5:	4 years' imprisonment, concurrent.  (Starting point:  6 years).

 

£ 1 nominal confiscation order.

 

Sentence and Observations of Court:

I year Probation Order with 240 hours' Community Service Order.

 

Not considered to have been the prime mover in this arrangement.  Accepted Presume's explanation as a go-between.  Noted from the reports that she is trying to reform.  Ordinarily a sentence of two years' imprisonment in respect of Count 4 would be appropriate.  Having regard to all circumstances prepared to give Presume the benefit of any doubt.

 

 

Jason Paul Bayliss

 

2 counts of:	Being knowingly concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978. Count 6: diamorphine. Count 7: cocaine.
1 count of:	Driving without due care and attention, contrary to Article 15(1) of the Road Traffic (Jersey) Law, 1956: Count 8.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 9: cannabis resin.

 

 

Age:     29.

 

 

Details of Offence:

See Disbury, above.

 

Details of Mitigation:

A resident of Jersey and a chronic heroin addict, spending up to £1,000 a week to feed his habit.  Considered by the Crown to have been a vital link in the bringing in and passing on of drugs in the Island, although not considered to be a "major player" in the drugs scene.  His role was, nevertheless significant.  Residual youth and first conviction concerning any commercial quantities of drugs considered to be the only mitigating factors.

 

Previous Convictions:

Previous offences of dishonesty and the possession of drugs.

 

Conclusions:

 

Count 6:	7 years' imprisonment.  (Starting point:  10 years).
Count 7:	5 years' imprisonment.  (Starting point:  7 years).
Count 8:	£200 fine or 14 days' imprisonment, in default of payment.
Count 9:	1 month imprisonment, concurrent.

 

£130 confiscation order.

 

Sentence and Observations of Court:

 

Count 6:	3 years' imprisonment.
Count 7:	2 years' imprisonment.
Count 8:	£200 fine or 14 days' imprisonment, in default of payment.
Count 9:	1 month imprisonment, concurrent.

 

Bayliss was a burden on his parents in their vain attempts to keep him out of trouble.  Not convinced that the Crown's starting point is appropriate.  Telephone records considered relevant as record Bayliss' level of involvement but this was not clearly set out by the Crown.

Forfeiture and destruction of all drugs seized.

 

 

Advocate B.H. Lacey, Crown Advocate

Advocate A.J. Clarke for M.G. Disbury

Advocate J. Bell for E.A. Presume

Advocate C.J. Scholefield for J.P. Bayliss.

 

 

 

 

JUDGMENT

 

 

THE COMMISSSIONER:

1.        We shall deal with Disbury first. 

It is not often that this Court deals with a self-confessed drugs dealer or 'baron' who has been involved in this sordid business for between three and a half to four years and who brought into Jersey 93.99 grams of heroin and 47.71 grams of cocaine.  The heroin had a street value of between £28,000 and £42,000 and the cocaine had a street value of £3,360.

2.        Following the Court of Appeal guidelines in Rimmer Lusk & Bade -v- A.G. [2001]JLR 373, which is the leading judgment on the matter and which sets guidelines for heroin and cocaine of 9 to 11 years for between 50 to 100 grams, the Court of Appeal said as part of its judgment:

"We emphasise that these bands represent only guidelines, and are not to be treated as if embodied in a statute.  The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of the drugs and their rôle and involvement as principal factors, together with other lesser but relevant factors.  There may be exceptional cases in which a particular starting point may be above or below the band otherwise stated". 

3.        We have no doubt that Disbury deserves a long term of imprisonment.  This was, in our view, a cynical exercise, solely motivated by greed and, in our view made more serious by Disbury's using two of his small children as a front to enable him to move more quickly through Customs.  It is perhaps fortunate that the Drugs Squad Officers had already been alerted to his activities, otherwise he might have succeeded.

4.        We also recall that in Valler -v- A.G. [2002]JLR383, the Court of Appeal held that the appropriate starting point could be adjusted to ensure that an appropriate additional penalty be imposed for cocaine where heroin was also being trafficked.

5.        We must examine what mitigation is available to Disbury.  There is a plea of guilty - it is difficult to see how else he could have pleaded but nevertheless he has saved a trial.  There is apparently regret and remorse that he involved his children, aged eight and twelve in this enterprise and in the full knowledge of what he was bringing in to Jersey.  Disbury's interviews with Police were later stated by him in the witness box to have been lies specifically designed to minimise his eventual imprisonment.

6.        Disbury says that when he saw, the Police Officers, although they denied at trial that they were observed, he threw the whole supply of drugs into the car.  He was, at that time, crouching by a two-door car and Miss Presume was already sitting in the passenger seat. 

7.        He has previous convictions for drug possession but nothing of this seriousness.  He is 38 years old.  We believe that you were of paramount importance in this enterprise.  It was carried out, as I have said, to supply for commercial greed, and if you had succeeded, the misery and even death that these drugs might have brought can only be envisaged.  You have already shown - in the way you used your two young children, who must have been traumatised to see their father arrested in the way that he was - that you have no regard for anyone that might be harmed as a result of your activities.

8.        Despite Mr Clarke's most interesting analysis of the case of Valler, we feel that with large amounts of two different drugs - albeit not the large amount spoken of in Valler, - an increase is both necessary and desirable and we agree with the Crown that, we can start at 13 years. 

9.        We must now look at what there is in mitigation.  We have, of course, read the details of your upbringing, which is horrific and your plea of guilty is, as I have said, of some value but certainly does not warrant a full one-third reduction.

10.      You have previous offences but nothing of this nature and we have, of course, read all the reports most carefully and your letter to the Court.  A majority of the learned Jurats feel that, despite the arguments of Mr Clarke, which were most clearly put, 4 years' mitigation given by the Crown is surprising.  But, by a majority, the Crown's conclusions are followed.

11.      You are sentenced to 9 years' on count 1, 7 years' on count 2, concurrent, and 1 month on count 3, also concurrent.

12.      I turn now to Bayliss. 

Mr Scholefield, using Mr Bell's argument, put to us the case of McDonough (28^th September, 1994) Jersey Unreported; [1994/193].  This was a Court of Appeal judgment where the accused was also charged with being concerned in the supply.  The Court said this, and I quote:

"...the guilt of a person who is concerned with the supplying of a controlled drug is by no means necessarily to be equiparated with the guilt of the principal offender who supplies the drug.  There are many cases where conduct of a peripheral nature, although falling within the words "concerned in the supplying" and so on, falls very far short of the gravity of the conduct of the supplier himself.  For example A, at the request of B may lend B a small sum of money knowing that B intends to apply it to the purchase and then to the supply of a controlled drug..."

The Court of Appeal also went on to say this:

"The statutory phrase 'to be concerned in', which is an ingredient of the offence, embraces so wide a spectrum of turpitude as to render a benchmark inapposite, as Mr Whelan for the Crown conceded.  What we do think it proper to state is that normally a custodial sentence should be passed, tailored to the facts of the particular case and to the mitigation available to the accused.  There may, however, be wholly exceptional cases where, having regard to the peripheral nature of the involvement of the accused, a non-custodial sentence would be justified.  At the other end of the scale his involvement may be so gross as to match or even exceed in blameworthiness that of the actual supplier, so that a sentence appropriate to supplying would be fully justified."

As the Crown has said, Bayliss is not a major player.  His real tragedy is the way that his parents have striven so hard and with such sacrifice to avoid the very matter in which he is now involved.  We have had regard to the carefully prepared report of Mr Gafoor and of course to the other reports.  Although not a major player, we still feel that he was very much involved in this matter and we are not convinced that starting points are appropriate. 

13.      This is not, of course, a case of supply but the number of telephone calls made on that day is significant.  On the information supplied by the Crown, we are satisfied that there was a real level of involvement.  I have to say that the level of involvement has not been clearly set out by the Crown and we have had some difficulty in reaching our conclusions, but we feel that although a term of imprisonment is inevitable, we are not going to follow completely the conclusions of the Crown.

14.      So, stand up please.  We sentence you to 3 years on count 6, and 2 years on count 7, concurrent with a fine of £200 or 14 days on count 8, and 1 month concurrent to 6 on count 9.

15.      And lastly we deal with Miss Presume.  

We have had similar problems in dealing with the detailed facts as set out by the Crown, but we have most carefully considered this particular case and again we cannot accept that she is a prime mover.

16.      Miss Presume has a record and has spent time in Youth Custody but we accept Mr Bell's explanation of her as a go-between. 

17.      She has youth very much on her side, and the reports that we have read most carefully show that she is making attempts to reform.

18.      In this particular case we would have given you a 2 year sentence on count 4 and 1 year concurrent on count 5, but we are going to give you the benefit of the doubt. 

19.      You are going to serve 240 hours' of Community Service with a 12 month Order of Probation.  That will have a condition of treatment from the Alcohol and Drugs Service and, also there will be random urine testing.  The probation supervision, as has been said by the Probation Officer, will focus on helping you to learn alternative strategies to cope with stresses and problems that you encounter in more constructive ways, and you will be undertaking the 'Twenty Session - Offending is not the Only Choice' programme.  That is your sentence.  You will see your Probation Officer.  You can leave the Court.

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

Authorities

AG -v- Antunes and Ors [2003]JRC072.

AG -v- Shahnowaz and Anor [2003]JRC121.

Campbell and Ors [1995]JLR 136.

Rimmer and Ors [2001]JLR 373.

Valler [2002]JLR383.

McDonough (28^th September, 1994) Jersey Unreported; [1994/193].

Prentice [2004]JCA008.

AG -v- Presume (1^st November 2000) Jersey Unreported; [2000/213 ].