Jersey Unreported Judgments

[2004]JRC163

ROYAL COURT

(Samedi Division)

 

13^th September 2004

 

 

The Attorney General

-v-

Lawrence Anthony Durkin;

Rodney Julian Bevis;

Jeremy Edwin Howard;

Gavin David Norman Hartley.

 

Sentencing by the Superior Number of the Royal Court, to which the defendants were remanded by the Inferior Number on 18^th August, 2004 as follows:

 

 

Lawrence Anthony Durkin

 

1 count of:	conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999 Count 1: heroin
6 counts of:	possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978 Count 3: heroin Count 5: heroin Count 7: heroin Count 9: heroin Count 12: cannabis resin Count 15: diazepam
2 counts of:	supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 Count 4: heroin Count 8: heroin
3 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 22: heroin Count 23: heroin Count 24: heroin

 

Age:     27.

 

Plea:    Count 1: Guilty, following conviction at Assize trial on 18th August, 2004.

Count 4, 5, 7, 8, 9, 12, 15, 22, 23, 24: Guilty.

The Crown accepted Not Guilty pleas to Count 2, 6, 10, 11, 13, 14 and 16.

 

Details of Offence:

The Police undertook a covert surveillance operation at Durkin's home address.  Technical equipment was deployed at Durkin's home address which allowed the Police to monitor and evidence persons frequenting the premises and to monitor and evidentially record the conversations that took place within Durkin's flat.  Therefore, the evidence against the accused was essentially the words coming from the mouths of the accused.  It was the Crown's contention that the evidence was not realistically open to challenge by the accused.

Count 1 involved Durkin and Howard and related to a conspiracy entered into by the accused to import into Jersey a kilo of heroin and the importation was to be facilitated by an individual known as "Tony" who was based in Liverpool.  The conspiracy was not brought to fruition simply because of the unavailability of a suitable consignment of heroin from Liverpool.  The transcripts contained recordings of Durkin and Howard discussing large sums of money and the sending of sums of money to the United Kingdom.  The transcripts also revealed Durkin and Howard endeavouring to collect in money and there were references to monies belonging to them having been "buried" and numerous references to them being owed sums of money by a variety of people.  Those sums varied from £100s to £1,000s.  The purchase price of the kilo of heroin from the United Kingdom was to be between £18,000 and £20,000 and the expert evidence provided at trial by the Prosecution was that, had that quantity of heroin been imported and sold on the streets of Jersey in its usual form as "£50 bags", then the potential profit would have been between £306,180 and £459,270.  The wholesale price of a kilo of heroin in Jersey was between £153,090 and £204,120.

Durkin and Howard pleaded not guilty to this count, but following an Assize trial, were found guilty.  Neither gave evidence on their own behalf.  The verdict of the Jury was unanimous.

Counts 3 and 4 on the indictment related to the possession of 4 grams of Thai white heroin which Durkin had brought with him back from Thailand, and upon his return, he supplied some of the heroin to Bevis.  Durkin also brought back with him a quantity of diazepam tablets and, at the time of his arrest, a total of 426 tablets and these facts gave rise to Count 15 of the indictment.

Durkin and Howard travelled to the United Kingdom on 3^rd March, 2003.  Upon his return Durkin had imported 1.5 grams of heroin by concealing the same in his mouth.  Durkin was heard to discuss that a postal importation had also been organised for the following day.  Durkin was heard to make a telephone call to Hartley requesting his assistance on the next day.  On the next day a postal importation of 3.16 grams of heroin was received into the Island and delivered to an address.  Durkin and Hartley, who were under observation by the Police, were seen to approach the address and following the arrival of the postman, Hartley collected a package which he then handed to Durkin.  The package contained 3.16 grams of heroin which had a local street price of between £948 and £1,422.  The wholesale value was between £474 and £632.  These facts gave rise to Counts 19, 22 and 23 on the indictment.  When detained by the Police, Durkin was also found to be in possession of 542 milligrams of heroin and the sum of £181.91 in cash.  The heroin had a street price of £150 to £222 (wholesale £55 to £100).  This quantity of heroin gave rise to Count 5 on the indictment.

On the same day, i.e. 4^th March 2003, a second postal package containing 3.26 grams of heroin was intercepted at an address in the Parish of St John.  This quantity had a street value of between £978 and £1,476 and a wholesale value of between £489 and £652.  The package had the same post mark as the package found in possession of Durkin and also contained the same packaging and the same handwriting.  Both postal packages contained heroin with a purity of 44% by weight of diamorphine.  A forensic examination of the two packages was undertaken and Howard's fingerprints were revealed on both packages.  These facts gave rise to Count 25 on the indictment.

On 7^th March, 2003 Durkin and Howard once again travelled to England and the travel was funded by Bevis.  Durkin returned having imported 2.1 grams of heroin.  This had a street value of between £650 and £1,000 and a wholesale value of between £350 and £500.  These facts gave rise to Counts 7, 8 and 24 on the indictment.

Durkin was arrested in the street on 11^th April, 2003 and was found to be in possession of 1.39 grams of heroin.  It was divided into 10 individual bags which had a street value of £500 or a wholesale value of between £200 and £278.  These facts gave rise to Count 9.

Following his arrest, a search warrant was undertaken at Durkin's home address and 2.73 grams of cannabis resin were discovered.  This had a street value of £15 (wholesale value £11 to £13).  These facts gave rise to Count 12.  At this search the 426 diazepam tablets were located.  A set of electronic scales were also found and they were subject to a forensic analysis which revealed traces of diamorphine.

In relation to Count 21, Bevis made admissions to the effect that he had supplied heroin to a number of unidentified persons towards the end of March, 2003.  He had purchased 3.4 grams of heroin from Durkin for the sum of £550 and, whilst he had used the majority of that heroin for himself, he had sold a small amount to friends who were already heroin users so as to raise funds to repay Durkin.  Durkin was not the subject of any charge in relation to the allegations made by Bevis.

Count 17 related to the larceny of a mobile phone, valued at £200, by Howard whilst he was in custody at H.M. Prison, La Moye.  The phone was recovered and Howard apologised for his actions.

At the time of Howard's arrest, a search of his premises was undertaken and the sum of £5,970 in cash was discovered under the mattress in his bedroom.  Two sets of scales were also located and, once analysed, they were found to contain traces of diamorphine.  Bevis, at the time of his arrest, had the sum of £2,015, which the Crown subsequently accepted, was from legitimate sources.

All four accused were interviewed.  Durkin and Howard were not particularly co-operative.  Both denied any involvement with "Tony" and denied any conspiracy.  Both claimed that what was said on the transcripts was simply "empty talk".  Bevis was initially un-cooperative but became more co-operative after the transcripts were read to him and admitted his involvement in some of the other offences, but denied any involvement in the conspiracy.  Hartley answered all questions "No comment".

The Crown, in relation to Count 1, took as its starting point a sentence of 18 years' imprisonment.  This was the first occasion upon which the Royal Court had been called upon to sentence defendants involved in the drug trafficking of a kilo of heroin.  It was the Crown's view that the fact that the conspiracy had not been completed was of no significance for the purposes of sentencing.  It was not something which mitigated or reduced the culpability of Durkin and Howard.  For the purpose of the guidelines this case was outside the specific scope of the Rimmer and Ors. -v- AG [2001] JLR 373 guidelines.

In relation to Counts 19, 22, 23, 24 and 25 on the indictment the Crown took, as a starting point, a sentence of 7 years' imprisonment on each of those counts.

 

Details of Mitigation:

It was the Crown's contention that Durkin had some residual mitigation because of his age.  He did not have the benefit of the substantial mitigation available for a guilty plea on Count 1.  He was entitled to some credit in relation to the other guilty pleas on the other counts but not a one third reduction, given the strength of the evidence against him, on those counts.  He did not have the benefit of good character and had previous offences involving drugs.  In the Crown's view, he was not co-operative with the Police.  He did not have the benefit of remorse.  Character references had been produced and the Crown gave credit for those references and, in particular, the information contained within the various reports.

The Defence contended that some reduction should be made from the Crown's starting point because the conspiracy had not been completed.  By analogy, a person who withdrew from a conspiracy was entitled to some reduction in sentence as compared to someone who remained in the conspiracy.  It was also contended that this was not a sophisticated conspiracy as no practical arrangements for its importation had been made.  It was contended that the starting point should be less than 16 years and that, in relation to the other offences, regard should be had to the totality principle.  It was emphasised that the offences of supply were social supply and involved very small quantities of drugs being supplied to Bevis with no gain.  In relation to some offences, there were offences of personal possession, e.g. Counts 7 and 8, which overlapped with Count 24 and it was suggested that there should be no separate penalties for each of those offences.  Durkin should be given credit for those other counts and suggested that he was co-operative in interview.  He had been on remand for the equivalent of 2 years and 26 days.  It was noted that he had only been out of prison for a previous offence for a matter of months before he had become involved in these offences.  Extracts from the Social Enquiry Report etc. were highlighted in relation to his difficult background.  It was suggested that Durkin was ready for a fresh start and that, in order to achieve this, he would need to leave the jurisdiction to break his ties with his friends etc.  The intention would be that he would return to his family in Wales.

 

Previous Convictions:

Numerous previous offences, including 18 for fraud and like offences, 3 for theft and like offences, and 14 previous drug offences.

 

Conclusions:

 

Count 1:	15 years' imprisonment (18 year starting point)
Count 3:	18 months' imprisonment, concurrent
Count 4:	2 years' imprisonment, concurrent
Count 5:	18 months' imprisonment, concurrent
Count 7:	18 months' imprisonment, concurrent
Count 8:	2 years' imprisonment, concurrent
Count 9:	18 months' imprisonment, concurrent
Count 12:	1 month's imprisonment, concurrent
Count 15:	2 months' imprisonment, concurrent
Count 22:	5 years' imprisonment, concurrent (7 year starting point)
Count 23:	5 years' imprisonment, concurrent (7 year starting point)
Count 24:	5 years' imprisonment, concurrent (7 year starting point)
TOTAL	15 years' imprisonment

 

 

Sentence and Observations of Court:

It is recognised throughout the world that heroin is a dangerous and addictive drug which has the effect of inducing a craving and which can produce an existence of misery, degradation and crime.  Facilities are available to help rid those of their addiction if they are willing to take help.  The Courts in civilised countries are aware of the dangers and impose sentences, which it is hoped, will deter those becoming involved in drug trafficking etc.  Those persons who are involved in conspiracies or importation are dealt with by severe sentences of imprisonment.  The level of a sentence is dependant upon a number of factors:

1.  Prevalence of use as recognised by the local Courts and damage to society.  The Court of Appeal in Jersey has established guidelines which are significantly higher than those in the United Kingdom.

2.  Weight and value of the drugs involved and the level of purity and level of involvement of the individual.

3.  Extent of the financial profit expected.

4.  Was the individual involved in importation or whether there was a conspiracy, or the supply of drugs or simple possession of the same?

5.  The level of market transaction.  This ranges from social supply to large importations.  The top end of the scale is wholesale importation which is intended for distribution purely for financial gain.

6.  The level of planning, sophistication and experience which lay behind a conspiracy.

The Court has taken into account all of these matters.

The Court has had regard to the ages of the Defendants and also the length of time that they spent on remand, which equates to periods of 2 years or more.  The Court has also had regard to all the material placed before it, both by the Crown and by the Defendants.  The Court has read the reports and the various letters, some of which were very moving.

Durkin and Howard

In relation to Count 1, the Court did not distinguish between Durkin and Howard.  The Crown did not seek to distinguish between them at trial and neither has Defence Counsel.  Therefore, the sentence on both accused will be the same.  There was no plea of guilty and therefore no discount.  In the Court's view very little of any mitigation was available to them.  It was correct that families will be affected but the Court also has to have regard to the effect on other members of the community.  The Jury found a conspiracy existed.  It may well be that it was not a well planned or sophisticated conspiracy.  However, it was a conspiracy to import a substantial quantity.  The Defendants had conspired together to import 1 kilo of heroin.  The Court had some difficulty in fixing the starting point and linking a conspiracy to import to the Rimmer guidelines.  The Court took 15 years as a starting point in accordance with the Defence submissions.  The Court took account of the mitigation and also bore in mind that the conspiracy did not come to fruition.  Durkin and Howard were to be sentenced to 13 years' imprisonment on Count 1.

In relation to Counts 22, 23, 24 and 25, the Court accepted that the importations were for personal use and that these counts overlapped with Counts 5, 7 and 8.  Both accused had heavy involvement in the Jersey drug scene.  The Court took as its starting point, for those offences, one of 6 years' imprisonment.  Sentences of 4 years' imprisonment were imposed concurrent on those counts.

In relation to the counts involving supply, the accused were entitled to some credit for the guilty pleas but not to the extent of a one third reduction.  The Court was not invited to apply starting point principles to Counts 4 and 8 and declined to use it for Count 19.

In relation to Count 17, being the larceny of a phone by Howard.  This offence was in a different category and one month's imprisonment was imposed on Howard.

 

Count 1:	13 years' imprisonment (15 year starting point)
Count 3:	18 months' imprisonment, concurrent
Count 4:	2 years' imprisonment, concurrent
Count 5:	no separate penalty
Count 7:	no separate penalty
Count 8:	2 years' imprisonment, concurrent
Count 9:	18 months' imprisonment, concurrent
Count 12:	1 month's imprisonment, concurrent
Count 15:	2 months' imprisonment, concurrent
Count 22:	4 years' imprisonment, concurrent
Count 23:	4 years' imprisonment, concurrent
Count 24:	4 years' imprisonment, concurrent
TOTAL:	13 years' imprisonment

 

 

 

Rodney Julian Bevis

 

1 count of:	supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 Count 1: heroin
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 23: heroin Count 24: heroin

 

Age:     35.

 

Plea:    Guilty.

 

Details of Offence:

See Durkin above.

 

Details of Mitigation:

In relation to Bevis, the Crown, having noted that he had also committed serious drug offences, contended that he did have the advantage of substantial mitigation.  Whilst he was aged 35 and did not have the benefit of good character, having previously committed drug offences, where he differed from the other co-accused was that he had given a statement to the Police and had given evidence on behalf of the Prosecution against Durkin and Howard at trial.  The Crown readily acknowledged that the statement and evidence of Bevis was of significant assistance and, in consequence, contended Bevis was entitled to receive a substantial reduction in his sentence.  The Crown also had regard to all of the other information contained within the reports and letters and documents before the Court.

The Defence supported and reinforced the Crown's assessment of Bevis' mitigation.  In terms of starting points relevant to Bevis, the Defence suggested that the starting point should be one of 5 years and not 7 years.  Bevis however, had been very courageous in not only providing the statement but also in giving evidence.  Extracts from his statement were read to give an indication of the evidence that he had provided.  He was entitled to substantial credit from the Court as it was in the public interest that persons in Bevis' position should come forward and give evidence against others.

 

Previous Convictions:

14 previous drug offences, 3 offences against property, 3 offences of dishonesty and other miscellaneous offences.

 

Conclusions:

 

Count 21:	2 years' Probation Order (7 year starting point)
Count 23:	2 years' Probation Order, concurrent
Count 24:	2 years' Probation Order, concurrent
TOTAL:	2 years' Probation Order

 

 

Sentence and Observations of Court:

Conclusions granted.

The Court considered his case to be very different from the other Defendants.  His sentence had caused the Court a considerable amount of concern.  He was aged 35 and therefore the oldest of the Defendants.  He had pleaded guilty to the other offences involving him at an early stage and had made a statement and gave evidence.  He had been very co-operative.  It was a matter of public knowledge that he had given evidence and he was described as being courageous in doing so, particularly as he shared prison with his co-accused.  The Court recognised that those who co-operate are entitled to receive a substantial discount in recognition of that assistance.  The Court imposes a Probation Order concurrent on each of the counts, but warned Bevis that the effect of this was to extend his period at risk to recall, were he to breach his Probation Order during the period of that Order.

 

 

 

Jeremy Edwin Howard

 

1 count of:	conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999 Count 1: heroin
1 count of:	larceny (Count 17)
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 22: heroin Count 25: heroin

 

Age:     33.

 

Plea:    Count 1: Guilty, following conviction at Assize trial on 18^th August 2004.

Count 17, 22, 25: Guilty

 

Details of Offence:

See Durkin above.

 

Details of Mitigation:

In the Crown's view, Howard, who is aged 33, did not have the benefit of substantial mitigation as there was no guilty plea in relation to Count 1.  He did have the mitigation available for the guilty pleas to the other counts but, again, regard had to be had to the strength of the evidence against him.  Nor did he have the benefit of good character as he had previous convictions for drug offending.  Nor did he have the benefit of remorse as he did not accept the verdict of the Jury in relation to Count 1.  The Crown had regard to the personal matters contained within the various reports and letters of references provided by the Defendant.

The Defence contended that Howard had expressed remorse in relation to the offences to which he had pleaded guilty, but did not accept his guilt in relation to Count 1.  It was agreed that sentences moved for in relation to the other counts should be concurrent.  It was contended that the starting point on Count 1 was too high and it was contended that the conspiracy was not a thought-out conspiracy but could be described as "shoddy".  The drugs never actually arrived.  It was suggested that a starting point of less than 16 years and no more than 14 years was appropriate.  In relation to the other counts, the starting point should be 5 years and not 7 years as sought by the Crown.  It contended that he had credit for his guilty pleas to the other counts and he had been in custody for the equivalent of 2 years and 24 days.  He had been the victim of a serious assault whilst in custody.  His wife was in Court and there were letters of remorse for the offences to which he pleaded guilty before the Court.  Howard now had the desire to help people who were on drugs and had decided to start his life afresh.  The Defence requested the Court to be as lenient as it could be in the circumstances.

 

Previous Convictions:

2 previous theft and related offences, and 9 drug offences.

 

Conclusions:

 

Count 1:	15 years' imprisonment (starting point: 18 years)
Count 17:	1 month's imprisonment, concurrent
Count 22:	5 years' imprisonment, concurrent, (starting point: 7 years' imprisonment)
Count 25:	5 years' imprisonment, concurrent, (starting point: 7 years' imprisonment)
TOTAL:	15 years' imprisonment

 

Sentence and Observations of Court:

Durkin and Howard

In relation to Count 1, the Court did not distinguish between Durkin and Howard.  The Crown did not seek to distinguish between them at trial and neither has Defence Counsel.  Therefore, the sentence on both accused will be the same.  There was no plea of guilty and therefore no discount.  In the Court's view very little of any mitigation was available to them.  It was correct that families will be affected but the Court also has to have regard to the effect on other members of the community.  The Jury found a conspiracy existed.  It may well be that it was not a well planned or sophisticated conspiracy.  However, it was a conspiracy to import a substantial quantity.  The Defendants had conspired together to import 1 kilo of heroin.  The Court had some difficulty in fixing the starting point and linking a conspiracy to import to the Rimmer guidelines.  The Court took 15 years as a starting point in accordance with the Defence submissions.  The Court took account of the mitigation and also bore in mind that the conspiracy did not come to fruition.  Durkin and Howard were to be sentenced to 13 years' imprisonment on Count 1.

In relation to Counts 22, 23, 24 and 25, the Court accepted that the importations were for personal use and that these counts overlapped with Counts 5, 7 and 8.  Both accused had heavy involvement in the Jersey drug scene.  The Court took as its starting point, for those offences, one of 6 years' imprisonment.  Sentences of 4 years' imprisonment were imposed concurrent on those counts.

In relation to the counts involving supply, the accused were entitled to some credit for the guilty pleas but not to the extent of a one third reduction.  The Court was not invited to apply starting point principles to Counts 4 and 8 and declined to use it for Count 19.

In relation to Count 17, being the larceny of a phone by Howard.  This offence was in a different category and one month's imprisonment was imposed on Howard.

 

Count 1:	13 years' imprisonment (starting point: 15 years)
Count 17:	1 month imprisonment, concurrent
Count 22:	4 years' imprisonment, concurrent, (starting point: 7 years' imprisonment)
Count 25	4 years' imprisonment, concurrent, (starting point: 7 years' imprisonment)
TOTAL:	13 years' imprisonment

 

 

 

Gavin David Norman Hartley

 

1 count of:

supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 Count 19: heroin

Breach of a 70 hour Community Service Order made in the Magistrate's Court on 15^th May 2003 in relation to 1 count of larceny.

[Count 18 of the indictment was not proceeded with]

 

Age:     26.

 

Plea:    Guilty; breach admitted.

 

Details of Offence:

See Durkin above.

 

Details of Mitigation:

In relation to Hartley, the Crown contended that he was aged 26 and therefore had the benefit of residual youth.  Hid did not have the benefit of good character and had drug related offences in the past.  Whilst he was not co-operative in interview, he had entered a guilty plea at an early occasion and was entitled to credit for that.  The Crown categorised his involvement as being Durkin's "gofer" in that he collected the postal package and handed it to Durkin.  The Crown also had regard to the contents of the reports and character reference produced on behalf of Hartley.

The Defence contended that Hartley's involvement was peripheral only.  He played a minor involvement and there was only a technical supplier.  He was not a major player and his involvement lasted, probably, no more than two minutes.  Hartley wanted to complete his sentence and then leave the Island, to overcome his drug problems, with his family in Halifax.

 

Previous Convictions:

4 previous drug offences, 7 theft and related offences and 2 other miscellaneous offences.

 

 

Conclusions:

 

Count 19:	3 years' imprisonment
Breach:	2 months' imprisonment, consecutive
TOTAL:	3 years, 2 months' imprisonment

 

Sentence and Observations of Court:

Hartley faced one count, being Count 19, for supply of heroin to Durkin.  It was a small amount being 3.16 grams.  The circumstances were unusual and he only had possession of the heroin for a short time.  He carried if for a short time.  The Court considered a 2-year term of imprisonment an appropriate sentence and imposed a consecutive sentence of 2 months for breach of a Community Service Order previously imposed by the Magistrate's Court.

 

Count 19:	2 years' imprisonment (7 year starting point)
Breach:	2 months' imprisonment, consecutive
TOTAL:	2 years, 2 months' imprisonment

 

[A Not Guilty plea was accepted on Count 20 of the indictment, laid against a co-defendant, who was discharged from the prosecution.]

 

 

J.C. Gollop, Esq., Crown Advocate.

Advocate J. Bell for L.A. Durkin.

Advocate R. McRae for R.J. Bevis.

Advocate R. Juste for J.E. Howard.

Advocate Mrs S.A. Pearmain for G.D.N. Hartley.

 

 

 

JUDGMENT

 

THE commissioner:

1.        Lawrence Durkin, Jeremy Howard, Rodney Bevis and Gavin Hartley, you can remain seated for the moment.  It is recognised throughout the world that heroin is a dangerous and addictive drug.  The evil effect which it has on those who take it is to induce a craving which reduces them to an existence of misery, degradation and crime, often violent crime.  Facilities are usually available for heroin users who wish to make use of them, to help them rid themselves of their habit.  Regrettably, however, the drug often takes such a hold that users are unwilling to take treatment or advice, or if they do so, find that they subsequently relapse.

2.        Courts in all civilised countries are aware of these dangers and take such steps as they can to prevent the supply and use of heroin by imposing such sentences as, it is hoped, will deter people from spreading the use of the drug.  Those who import or conspire to import or who supply heroin can accordingly expect to be dealt with by severe sentences of imprisonment and those convicted of possession of heroin by somewhat lesser sentences.

3.        The length of sentences for drugs offences will depend upon a number of factors.  First, the prevalence of use in a particular place and the problems and damage which it inflicts on the local community.  Thus in Jersey, the Court of Appeal has established guidelines, or starting points, for sentencing which are significantly higher than those adopted in the United Kingdom.  Secondly, the weight and amount of the drug involved and, if ascertainable, its level of purity and, accordingly, its value, either on a wholesale or retail basis.  Thirdly, the extent of the financial profit which might be expected to or actually did result from a transaction.  Fourthly, and importantly, whether the offence is one of importation or, as in this case, conspiracy to import; of supply or of simple possession.  Fifthly, the market at which a transaction was or was intended to be directed.  Importation or supply on a small scale on a social basis to existing users or participants lies at one end of the scale.  Wholesale importation intended for extended distribution to a wider market on a commercial basis is at the other end of the scale.  Sixthly, the planning, experience, and sophistication that lay behind the conspiracy if that is the charge.

4.        The Court has taken account of all these factors, and of the ages of these defendants: Durkin is now 27; Howard, 33; Bevis, 35 and Hartley, 26.  The Court also bears in mind that they have all been detained in custody on remand for periods amounting, after consideration is given for remission, to sentences of imprisonment of 2 years or more.

5.        The Court has had regard to all the material which has been placed before it, not only by the Crown but also by the Defence, and has read the Social Enquiry Reports, where appropriate, the Psychological and other Reports, and the letters, some of them very moving letters, from members of defendants' families and others who know them and, in some cases, from medical practitioners who have treated them.

6.        And so we come to the individual counts and the individual defendants.  Will the defendants Durkin and Howard please stand.  In dealing with Count 1 the Court has decided to make no distinction as between these two defendants.  The Prosecution has not sought to draw any distinction and nor has Counsel for either of them, and therefore the sentences on you both, so far as Count 1 is concerned, will be the same.  There has been no plea of guilty and therefore there can be no discount from the sentence on that account.  In the Court's view, there is very little mitigation.  As has been said, we have read the material contained in letters and reports.  It is very sad, as always, that families are affected but we have to have regard to the potential effect on members of the community. 

7.        The Jury have found that a conspiracy existed.  It may not have been a very well planned or sophisticated conspiracy but it was, nevertheless, as the Jury concluded, a criminal agreement to import a substantial amount of heroin into Jersey where drug addiction is a major problem.  By their verdict, the Jury expressly found that you two conspired together to import a kilogram of heroin.  There can be no doubt that such an amount far exceeds that required for private or social use and was intended for commercial distribution at a substantial profit.

8.        So far as the starting point for the sentence is concerned, the Court has some difficulty in linking a conspiracy to import with the guidelines set out in the case of Rimmer and Ors. -v- AG [2001] JLR 373.  We have some hesitation about selecting a starting point, but since we feel ourselves obliged to do so, we announce it as 15 years.  We believe that to be in accordance with Defence Counsels' submissions.  We set against that such mitigation as exists.  We bear in mind, in particular, the fact that the conspiracy did not come to fruition and that, in fact, the kilo of heroin did not reach this Island.  Having set the starting point at 15 years, we sentence each of you to 13 years' imprisonment.

9.        We now deal with the remaining counts so far as you two are concerned.  Not in the order set out in the indictment but dealing next with the more serious offences charging importation.  These are contained in Counts 22, 23 and 24 so far as you, Durkin, are concerned and in Counts 22 and 25 so far as Howard is concerned.  The Court accepts that these are all importations of small amounts for personal use.  We recognise that there is a certain amount of overlapping with earlier counts in the indictments, Counts 5, 7 and 8.  We have regard to your degree of involvement in the Jersey drugs' scene and in the supply of heroin.  So far as these counts are concerned, we adopt a starting point of 6 years and sentence each of you to 4 years' imprisonment.  All these sentences and the others which we impose are concurrent with each other and with the sentences of 13 years, imposed on Count 1.

10.      We come next to deal with those counts alleging supply of drugs.  We recognise in relation to these counts, as in relation to the counts of importation and the other counts with which we shall deal, that you pleaded guilty, not only you but the other two defendants as well, and therefore that you are entitled to some discount, albeit perhaps not for the full one third, but some recognition of the fact that you did plead guilty and owned up to these offences.

11.      We are not invited, it seems to us, to apply a starting point in relation to counts 4 and 8 and we decline to set a starting point in any event so far as Count 19 is concerned.  In Count 4, you Durkin have pleaded guilty to supplying heroin to Bevis who was an existing user.  We sentence you to 2 years' imprisonment.  In Count 8, you, Durkin, have pleaded guilty to, again, supplying a small amount of heroin to Bevis.  The sentence is again one of 2 years' imprisonment.  Count 19 is one in which Hartley is concerned and we will deal with him in one moment.

12.      Next we deal with those counts charging simple possession of various drugs, most of them heroin but in two cases other drugs.  In Count 3, you Durkin are charged with possession of heroin, a small amount, which you imported here from Thailand.  You have not been charged with importation, but simply with possession.  We sentence you to 18 months' imprisonment.  In Counts 5 and 7, you are also charged with possession of heroin, but since we are satisfied that these overlap with some of the charges relating to importation, we do not impose any separate penalty in relation to those counts.  On Count 9, you, Durkin, are charged with possession of heroin.  This was the occasion when you were found in the street with ten bags of the drug in your mouth, we sentence you to 18 months' imprisonment.  Count 12 charges you with possession of cannabis resin.  You pleaded guilty to it; we sentence you to 1 month's imprisonment recognising that this was cannabis resin, not heroin.  In Count 15 you are charged with possession of diazepam.  We sentence you to 2 months' imprisonment following your plea of guilty and recognising that this represented some tablets that you had brought back from Thailand, and again that it is not heroin that we are concerned with.  That therefore is the sentencing on you two, bringing a total in each case of 13 years' imprisonment. 

13.      There remains Count 17, the theft of a mobile telephone by Howard, on which the sentence is 1 month's imprisonment.  You have pleaded guilty to it and of course that is concurrent with the other sentences.  Take those two defendants down please.

14.      Gavin Hartley, will you stand up please.  You are charged only in one count in the indictment, Count 19, supplying heroin to the Defendant, Durkin.  It was a small amount of 3.16 grams.  The circumstances were, to say the least, unusual.  You had it only for a very short time; you carried it only a short distance.  We are not prepared to set a starting point for circumstances so unique and we take the view that, bearing in mind your plea of guilty, 2 years' imprisonment is the appropriate sentence, which is the sentence we impose. 

15.      So far as the breach of the Community Service Order is concerned, that has given us some difficulty.  We believe that the fairest and most just course, from everyone's point of view, including your own, in dealing with you, is to sentence you to 2 months' imprisonment consecutive.  The total, in your case, is therefore 2 years and 2 months' imprisonment.  You have probably served most of that by now.  You can go down.

16.      Will you stand up please, Rodney Bevis.  Your case is very different to that of the other defendants and it has caused us considerable concern.  You are now aged 35; in fact the oldest of the defendants in the dock. However, you alone of the defendants have given evidence in his case.  You made a statement to the police at an early stage and you pleaded guilty to such offences as you were concerned in.  So far as you are concerned, those were Counts 21, supply of heroin to persons unknown; Count 23, importing heroin, a small amount from the United Kingdom and Count 24, another importation of heroin, a small amount from the United Kingdom.

17.      Not only have you pleaded guilty to those offences, but you have been very co-operative with the authorities and, as is public knowledge, you gave evidence in this Court in the trial of two of your co-defendants.  You were courageous in doing so, particularly as you shared a prison with them. 

18.      The Court recognise that those who co-operate in that way are entitled to expect a substantial discount in the sentences which would otherwise be imposed.  And that discount, we feel, is applicable to you.  In recognition of your pleas of guilty and co-operation and of the fact that you gave evidence for the Prosecution, we do not propose to sentence you to any further term of imprisonment.  I say any further imprisonment because you have already served the equivalent of over 2 years' imprisonment and we can do nothing about that.  If we were to impose a sentence of imprisonment, then having regard to the discount that we would apply, it would be such that you would probably be released immediately. 

19.      Your counsel, very sensibly and you must have agreed to it, submits that the appropriate way of dealing with you would be to make a Probation Order with certain conditions.  You and he recognise that the effect of such an order will be to extend your period of liability to recall to prison and so rather than, in effect, being released at once, you will be under obligations for a further 2 years.  The Court's order in your case is a Probation Order for 2 years.  The following conditions are to be observed by you during that period.  That you be of good behaviour and appear before the Court when called upon to do so; that you be under the supervision of a Probation Officer; that you reside in such a place and work in such employment as a Probation Officer shall direct; that you notify the Probation Officer forthwith of any pending change of residence or employment; that you do not travel outside Jersey without the written permission of the Chief Probation Officer; that you keep in touch with the Probation Officer in accordance with such instructions as may, from time to time, be given by him or her and that, in particular, that if the Probation Officer so requires you receive visits from him or her at your home; finally that you attend the Alcohol and Drug Service for the first 12 months of the 2-year period and in so doing that you shall comply with the directions of the Alcohol and Drug Service during that 12 month period.  Are you willing to abide by those conditions?  If you fail to observe any of the conditions of your recognisance you will be liable to be arrested and be sentenced for the offences to which you have pleaded guilty.  Do you understand that?

20.      We discharge the Probation Order for Gavin Hartley.

21.      The Prosecution commented in their opening on the States of Jersey Police Officers and their efficiency in being involved in this operation.  The Prosecution commended them for their dedication and professionalism and, in particular, for the conduct of the covert surveillance operation which they undertook and which, there is no doubt, largely contributed to the outcome of the trial over which I presided.  The Court would wish to endorse those comments and thank and congratulate the Police of the States of Jersey for all their efforts in bringing these defendants to justice and thereby reducing the incidence of importation of drugs into this Island.  Advocate Gollop, I would be grateful if you would convey the Court's comments to the appropriate authorities.

22.      I would like to thank all counsel for their help and co-operation with the efficient handling of, not only evidence relating to the interviews, but also of the covert surveillance transcript material.  We were able, as a result, to conduct the trial, I believe, in an efficient and expedient manner and I am grateful to all counsel for that.

Authorities

Rimmer and Ors. -v- AG [2001] JLR 373.

Welsh -v- AG [2002] JLR N. 16.

Morgan and Schlandt -v- AG (24^th April 2001) Jersey Unreported; [2001/88].

AG -v- Finnigan [2004] JRC016.

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

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): paras 139-51.

R -v- Aramah (1982) 4 Cr. App. R. (S) 407.

R -v- Aranguren (1994) 99 Cr. App. R.

AG -v- Lascoumes (5^th April, 2002) Jersey Unreported; [2002/76].

AG -v- Wootton [2003] JRC34.

AG -v- Le Pavoux & Baumgartner [2003] JRC75.

AG -v- Disbury, Presume & Bayliss [2004] JRC117.