Jersey Unreported Judgments

[2004]JRC167A

ROYAL COURT

(Samedi Division)

 

22^nd September 2004

 

 

The Attorney General

-v-

Jason Hepburn;

Christopher Timothy Harris;

Cindy Tanya Le Marinel.

 

Sentencing by the Superior Number of the Royal Court, to which the Defendants were remanded by the Inferior Number on 13^th August, 2004, as follows:

 

Jason Hepburn

 

Following conviction by the Inferior Number of the Royal Court, en police correctionnelle on 25^th June, 2004, on a Not 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: heroin.

 

And following Guilty plea, entered on 21^st November, 2003, to

 

1 count of:

Common assault.  (Count 2).

 

Age:     34.

 

Details of Offence:

This was an importation of 49.46 grams of heroin with a wholesale value of between £7,453 and £9,938, and a retail value of between £14,907 and £22,360.  Le Marinel, Harris and Hepburn were all known to each other.  Each of them was a self-confessed heroin addict.  At the material time Harris was living in Glasgow.  Harris received a payment of £1,300 from Hepburn two days before the importation in question.  This was to purchase the heroin.   Harris sent from Glasgow a postal packet containing various items including a tub of Nivea hand lotion which had a false compartment made in the bottom of it.  In This false compartment the heroin was secreted.  The postal packet was addressed to the step-father of Le Marinel.  It was intercepted at Postal Headquarters by a customs officer.  The police discovered the concealed heroin and created a substitute packet identical in appearance and contents to the one which had been sent from Glasgow by Harris.  In addition they painted the underside of the lid of the Nivea tub and the underside of the foil seal within it with a special fluorescent marker grease.  The purpose of this marker grease was to incriminate any person who opened the Nivea tub and came into contact with it.  It would fluoresce under ultra violet light if a suspect had come into contact with it.  The substitute packet was introduced into the postal system and a docket was left at the address of Le Marinel's step-father indicating that he should attend to collect a packet which had not been possible to deliver through the letter box.  The step-father duly attended at the post office and claimed the packet.  He immediately handed it to Le Marinel who was in attendance nearby.  A covert surveillance operation was then initiated and Le Marinel was pursued by officers who observed her talking on her mobile phone and attending the Oxford Public House where she continued to make and receive mobile telephone calls.  She left the pub and walked into Duhamel Place where the accused Hepburn was standing with his wife, young child and two dogs.  Officers in pursuit observed Le Marinel's pace slow almost to a halt as she drew level with Hepburn, and she was seen to pass extremely close to Hepburn and exchange words with him.  Le Marinel then moved on and Hepburn and his family went into 12 Duhamel Place.  Shortly afterwards Hepburn and his family emerged from 12 Duhamel Place.  He was speaking on his mobile phone and he was overheard by a police officer to say in a raised voice into his mobile phone "It's empty".  Shortly thereafter the instruction came to arrest all of the suspects.  At his trial Hepburn offered an innocent explanation for this activities but he was convicted by the Court.  Harris was arrested several months later in Glasgow.  The reason for the delay in his arrest was that the envelope in which the heroin was posted was analysed for fingerprints and it was discovered that Harris' fingerprints were on it.  With that evidence if was possible to issue a warrant for his arrest and he was returned to Jersey where he was interviewed and denied any involvement in this enterprise.  He pleaded not-guilty on indictment but one week before his trial was due to commence he changed his plea to guilty.

 

Details of Mitigation:

The defence argued that Hepburn's involvement was not as great as that indicated by the Crown but the defence was in difficulty because he continued to deny his guilt and was intending to appeal against the conviction.  The starting point of ten years suggested by the Crown was, on the defence case, incorrect and a starting point of nine years was more appropriate.  Hepburn nevertheless had personal mitigation.  He was 34 he had failed at school and been bullied, he had taught himself scaffolding and Djing at which he was very successful.  He had been introduced into taking heroin due to his work as a DJ in various night-clubs.  He had been clean from drugs for a year and was determined to stay clean.  Hepburn's previous record was by no means as bad as might be expected.  Two of Hepburn's three young children had exhibited behavioural difficulties since Hepburn had been remanded in custody awaiting sentence.  It was submitted that Hepburn was entitled to credit for the contribution he had made to the care of his children.

 

Previous Convictions:

Hepburn's record revealed a sprinkling of offences against the person, theft, firearms and offensive weapons and three previous convictions for drugs offences.  In 1993 he was bound over by the Jersey Magistrate for importing cannabis and possessing it.  In 2001 he was sentenced to perform 200 hours of community service for possessing a controlled drug.

 

Conclusions:

 

Count 1:	7½ years' imprisonment.
Count 2:	1 week's imprisonment, consecutive.

 

 

Sentence and Observations of Court:

All three of the defendants were heroin addicts and they all played a part in the importation of approximately 50 grams of heroin concealed in a Nivea tub.  The Court agreed that the correct starting point was a sentence of between eight and ten years.

In the case of Hepburn the Court said that he had organised the importation and he had a greater involvement than the other two.  The Court agreed that a starting point of ten years' imprisonment is correct in his case.  He was not entitled to any credit for the guilty plea.  The Court noted that he had not been to prison before.  He had made efforts to overcome his heroin addiction.  His incarceration was having an adverse effect on his family and there were other matters raised in the report and the papers before the Court.  The Court therefore sentenced him to 7½ years' imprisonment in respect of the drugs offence and to one week's imprisonment in respect of the common assault which sentence was to be served concurrently with the first one.

The Court ordered the forfeiture and destruction of the drugs.  Confiscation proceedings adjourned to 12^th October, 2004.

 

 

Christopher Timothy Harris

 

Following a charge of plea to Guilty, entered on 14^th June, 2004, 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: heroin.

 

Age:     40.

 

Details of Offence:

See Hepburn above.

 

Details of Mitigation:

He had entered a guilty plea, albeit late in the day and that was valuable to the Crown.  The defence urged that Harris' involvement in this enterprise was less than that of Hepburn.  Defence submitted that Harris was merely supplying the heroin to Hepburn who was his friend for personal consumption by Hepburn.  Harris had suffered a difficult background and was suffering from a serious chronic mental disorder.

 

Previous Convictions:

Harris' record was appalling.  He had eleven convictions concerning drugs and several convictions for violence.  He had a conviction for manslaughter in December 2000 which was drug related in that he supplied and injected drugs into a fellow addict who died as a consequence of that dose administered by Harris.

 

Conclusions:

 

 

Count 1:

6½ years' imprisonment.

 

 

Sentence and Observations of Court:

All three of the defendants were heroin addicts and they all played a part in the importation of approximately 50 grams of heroin concealed in a Nivea tub.  The Court agreed that the correct starting point was a sentence of between eight and ten years.

In the case of Harris the Court said that he had purchased heroin in Scotland and packaged it.  He had not been motivated by commercial gain but it was a commercial amount and he thought that it was for Jason Hepburn for his personal use but it was a commercial amount and Harris could not have had any control over what happened to the heroin once it was in Hepburn's possession.  The Court ruled that the starting point in his case should be 9½ years to reflect his slightly lesser involvement in the offence than that of Hepburn.  The Court noted the late guilty plea which was of value to him and taking into account all other matters the Court sentenced him to six years in prison.

 

Cindy Tanya Le Marinel

 

Following a Guilty plea, entered on 21^st November, 2003 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 3: heroin.

 

Age:     29.

 

Details of Offence:

See Hepburn above.

 

Details of Mitigation:

Le Marinel admitted her part in the enterprise and entered a guilty plea at the earliest opportunity.  She had remained in custody for over a year whilst the cases against Harris and Hepburn came to a conclusion and this delay was relied upon by the defence as part of the mitigation available to her.  She had never been in custody for that length of time before.  She had no previous convictions for drugs.  She had strong references and testimonials.  She expressed remorse particularly in relation to the devastating effect that her incarceration was having on her young daughter.  She had shown good signs of staying clean of drugs whilst in prison and there were encouraging indications that she was trying to improve her education whilst in prison.

 

Previous Convictions:

She had had a record consisting of certain public disorder offences but nothing of any grave seriousness.  She had only previously been imprisoned for twenty-eight days and she had no previous drug convictions.  Her record revealed a pattern of anti-social behaviour but none for drugs.

 

Conclusions:

 

Count 1:

4½ years' imprisonment.

 

 

Sentence and Observations of Court:

All three of the defendants were heroin addicts and they all played a part in the importation of approximately 50 grams of heroin concealed in a Nivea tub.  The Court agreed that the correct starting point was a sentence of between eight and ten years.

In Le Marinel's case the Court agreed that she had played a lesser part and that she was naïve and easily led.  The Court thought that an eight years' starting point was appropriate.  The Court took account of the guilty plea, her record which did not have any drugs convictions, her background and all the matters in the reports, the letters and references and was pleased to note her efforts to conquer her heroin addiction and the pursuit by her of positive educational things.  They also had regard to the devastating effect that prison would have on her daughter who had suffered greatly as a consequence of Le Marinel's incarceration.  The Court sentenced Le Marinel to three years' imprisonment.

 

 

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate D. Hopwood for J Hepburn.

Advocate D.F. Le Quesne for C.T. Harris.

Advocate J.C. Gollop for C.T. Le Marinel

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        You are heroin addicts and you played a part in the importation, concealed in a Nivea pot of just under 50 grams of heroin, with a street value of some £15,000 - £22,000.  You Harris, sent it from Glasgow, you Le Marinel, provided an address at your step-fathers, and arranged the collection and delivery of the heroin to Hepburn, and you Hepburn caused the heroin to be sent to Jersey where you would have received it had it not been intercepted.

2.        We agree that we are under the Rimmer guidelines in the bracket of 8 - 10 years' as a starting point, and I will take each of you in turn.

3.        Le Marinel, we agree that you played a lesser part in this matter.  We agree that you are  naïve and easily led.  In the circumstances having regard to the nature and scale of your involvement we think a starting point of 8 years' is right. 

4.        In mitigation you pleaded guilty from the outset and this stands you in very good stead.  You have a previous record but no previous drug convictions.  We have read of your troubled background.  We have considered carefully the various reports, the letters, and references which have been written on your behalf.

5.        We are pleased to note the determined effort that you have been making in prison to try and conquer your heroin dependency and to pursue other matters as well.  We have read the letter from the tutor in prison as well as the substance misuse counsellor, and we are pleased with the progress that you are making. 

6.        In particular, we do note the devastating effect that your imprisonment has had on your daughter.  This is extremely unfortunate, and she has clearly suffered problems as a result of your being remanded.  We have taken account of all the mitigation which appears in the papers before us. 

7.        We have considered very carefully whether we can accede to your counsel's submission that we should impose a non-custodial sentence, but this was a substantial amount of heroin, a commercial amount, which could cause considerable hardship to those who use it in Jersey.  We think the amount involved was too serious to permit us to proceed by way of non-custodial sentence.  We do think we can reduce the conclusions and think, taking account of all the mitigation I have mentioned, that the right sentence is one of three years' imprisonment.

8.        Harris, you purchased the heroin in Scotland, you packaged it up in the Nivea pot and you sent it over to Jersey.  You were paid some £1,300 for this and the Crown after consideration has accepted that you did not do it for commercial gain and we therefore sentence you on that basis.

9.        Your counsel says that you thought it was for Hepburn's own use, but this was a commercial amount and you would have had no control over what he did with it when it arrived in Jersey.  The vice of what you did is to have been part of an enterprise whereby this quantity of heroin came into Jersey.

10.      Nevertheless, having regard to what we have heard we think the correct starting point in your case, to reflect the nature and scale of your involvement, is 9½ years.  In mitigation, although you have an appalling record with previous drug convictions, you did plead guilty.  This was, however, late in the day and you cannot therefore have the full one-third discount but nevertheless it was a plea which was of assistance and use, and we think a significant proportion of the one-third should still be allowed.

11.      We note the psychiatric report and we have also read carefully the Social Enquiry Report and have taken note of all the mitigation which appears from the papers before us.  All in all, we think the correct sentence in your case is one of 6 years' imprisonment.

12.      Hepburn, you organised this importation.  You sent the money to Harris and in our judgment you had a greater involvement than the other two.  We agree with the Crown that the correct starting point in your case is one of 10 years'.  In mitigation there is, of course, no credit available for a guilty plea, but we take account of the fact that although you have previous convictions, including a minor previous drug conviction, you have not been to prison before. 

13.      You have made efforts to overcome your heroin addiction and we also note the effect on your family and on your children in particular.  We have read the papers that have been supplied in that respect and it is indeed unfortunate.  That will be a hardship to you, but this is something which you should perhaps have considered before you embarked upon this enterprise.

14.      We have read carefully all the background reports, and we have taken note of all the mitigation which appears on the papers before us.  All in all we think the correct sentence in your case is that moved for by the Crown, namely one of 7½ years' imprisonment, with 1 week concurrent for the assault.  We order the forfeiture and destruction of the drugs in all cases.

Authorities

Morgan & Schlandt -v- A.G. (24^th April, 2001) Jersey Unreported; [2001/88].

Rimmer Lusk & Bade -v- A.G. [2001]JLR373