Jersey Unreported Judgments

[2005]JRC141

ROYAL COURT

(Samedi Division)

12^th October 2005

The Attorney General

-v-

Herbert Michael Schneider

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 26^th August, 2005, 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 of the Customs and Excise (Jersey) Law, 1999. (Count 1: Cannabis Resin).

Age:  55

Plea: Guilty.

Details of Offence:

Schneider was stopped as he arrived in Jersey on the ferry driving an MG motor vehicle.  The Customs Drug dog detected the presence of drugs and Schneider admitted that he was carrying "Marijuana".  An examination of the vehicle revealed that cannabis bars had been concealed within the front wheel arches on both sides of the vehicle.  A total of 119 complete bars and one half bar was discovered with a total weight of 29,976.97 grams i.e. 30 kilos.  This quantity of cannabis had a wholesale value of £120,000 and a street value in Jersey of £172,800.

In interview Schneider admitted that he had imported cannabis.  Two weeks prior he had carried out a reconnaissance trip as a foot passenger on the ferry.  He had been provided with £2,700 to purchase the MG vehicle and he had also been provided with the drugs with instructions where to insert it within the wheel arches.  This he duly did.  His instructions were to leave the car in a car park in Jersey for a couple of hours and that upon his return his fee of £3,000 would be waiting for him.  He was then to return to England with the car.  He was not to keep the car but return it to somebody who had organised this importation and who he identified as "Old John".  He had also received money for the expenses for the reconnaissance trip and the drugs importation trip into Jersey.

The Crown, having regard to the value and quantity of cannabis and the role played by Schneider took as its starting point a 10 year sentence.

Details of Mitigation:

Schneider did not have the benefit of either age or good character as mitigation.  The documentation produced relating to his record was unsatisfactory but he had one previous conviction for conspiracy to import drugs in Canada for which he received a sentence of 10 years' imprisonment.  He had, however, entered a guilty plea at an early stage albeit the Crown's view was that this was inevitable as he had been caught "red handed".  He had been co-operative in interview although on close analysis the Crown's view was that he could have been far more co-operative if he had chosen to be i.e. he did not identify the car park where the car was to be left or the pub where he had met "Old John" so as to plan and organise this importation.  A number of character references have been produced by the Defence which the Crown took into account.  Medical evidence was produced to show that he was suffering Hepatitis C and Cirrhosis of the liver and that the long term prognosis for his health was not good.  However, the Crown did not view this as mitigation but rather as material supporting a plea for mercy.

The Defence challenged the starting point of 10 years and suggested that a lower point should be taken for somebody who was categorised as a "courier".  It was the Defence's contention that the 3 years allowed for mitigation by the Crown was insufficient and that greater allowance should have been made.  It was suggested that the plea of guilty was of value and that the co-operation offered was genuine.  His previous conviction had been 24 years ago when he had been a young man.  The character references provided a better picture of Schneider.  He had become involved in this importation so as to obtain funds to pay for his medical treatment.  Reliance was placed upon the medical evidence and resulted in the Defence categorising the case as being one of exceptional circumstances.  The medical evidence therefore it was contented justified the exercise of the prerogative of mercy by the court.  Schneider did to want to die whilst incarcerated.  There was 50% chance within the next 5 years of something happening which could result in his death.  His present liver may extend life for 5 years but at some stage he could require a liver transplant and it would be difficult to undertake this if he was in prison because it had to be arranged and surgery done at short notice.  It was suggested that a suspended sentence was justifiable and that the sentence imposed should be less than his live expectancy of 5 years.  The Defence urged the Court to show mercy in the particular circumstances of this case.

Previous Convictions:

1 conviction in 1981/82 for conspiracy to import drugs before the Canadian Courts and sentenced to a term of 10 years' imprisonment.

Conclusions:

 

Count 1:

7 years' imprisonment.

 

The Crown also sought:

1.        A confiscation order in the sum of £187.59 pursuant to the terms of the Drug Trafficking Offences (Jersey) Law, 1988.

2.        An order for the forfeiture and destruction of the drugs.

3.        An order for the seizure and forfeiture of the MG motor vehicle pursuant to Articles 54 to 56 of the Customs and Excise (Jersey) Law, 1999.

4.        A recommendation that Schneider be deported at the conclusion of any sentence imposed.

Sentence and Observations of Court:

 

Count 1:

2 years' imprisonment.

 

The Court requested the Prison authorities both in Jersey and the United Kingdom to urgently consider a transfer to the United Kingdom where access to specialist treatment was more readily available if required.

A confiscation order in the sum of £157.56 was made.

An order for the forfeiture and seizure of the MG vehicle was made pursuant to the Articles and Third Schedule of the Customs and Excise (Jersey) Law, 1999.

An order for the forfeiture and destruction of the drugs was made.

Schneider had pleaded guilty to importing 30 kilos of cannabis which was a substantial quantity of Class B drugs with a street value of £170,000.  He had admitted to an earlier visit to reconnoitre the Island.  He was aged 55.  He had a previous conviction for drug trafficking in Canada for which he had been sentenced to 10 years' imprisonment.  He had been arrested in Holland but no criminal proceedings had been pursued.  The Crown Advocate had advised that no assistance had been obtained from Interpol to clarify the criminal record of Schneider and this was a matter of considerable concern to the Court.  The Court expressed the hope that the Attorney General would make strong representation in this regards.

Schneider was fully aware that the importation was illegal and that the likely consequence if caught would be serious.  In the Court's view it did not consider that a courier should be at the top end of the sentencing starting point band.  The appropriate starting point was therefore one of 9 years.  In terms of mitigation he had a guilty plea and he was co-operative to some extent with those investigating.  A number of character references had been produced and the Court had found them helpful in relation to his background.  Applying ordinary principles, the Court would allow a discount of 3 years for the available mitigation and would have imposed a 6 year term of imprisonment.  Defence Counsel had very eloquently advanced the case on the grounds of mercy.  The Defendant suffered from Hepatitis C and Cirrhosis of the liver and was suffering from a number of unpleasant symptoms.  The medical reports indicated that he was clearly gravely ill and there was not a good prognosis.  In the Court's view they considered the circumstances of this case wholly exceptional.  The Court was therefore prepared to make further allowance by way of a discount purely as an act of mercy so that the Defendant would not spend his last years in custody.  A further four years discount would be provided.

J. Gollop, Esq., Crown Advocate.

Advocate D. J. Hopwood for the Defendant.

JUDGMENT

 

THE BAILIFF:

1.        Schneider has pleaded guilty to the importation of nearly 30 kilograms of cannabis resin.  This is a very substantial quantity of a Class B drug with a street value in Jersey of approximately £170,000.

2.        Schneider admitted to customs officers that he had made an earlier visit to Jersey to reconnoitre the layout of the land.  He is aged 55 and he has a previous conviction in Canada for a drug trafficking offence for which he was sentenced to 10 years' imprisonment. 

3.        He was also apparently arrested in Holland for a drugs matter, although no criminal proceedings were instituted.  The Crown Advocate has told us that no assistance was obtained from Interpol in relation to this information.  This is a matter of considerable concern to the Court and we hope the Attorney General will make the appropriate strong representations in that regard.

4.        There is no doubt that Schneider was fully aware that the importation of cannabis was illegal and that the likely consequences for him, if he were caught, would be serious.  Nonetheless, we do not think that a courier, and we accept that he was a courier, should necessarily be placed at the top end of the appropriate band.  Having regard to the case of Campbell -v- AG [1995]JLR136 and other relevant authorities we think the appropriate starting point in this case is one of 8 years' imprisonment.

5.        In mitigation Schneider has pleaded guilty to the indictment and has co-operated at least to some extent with the investigating authorities.  Defence counsel has placed before us a number of references which we have found helpful in relation to his background. 

6.        On ordinary principles the Court would have allowed a discount of 3 years for these mitigating circumstances, and we would have imposed a sentence of 6 years' imprisonment.  Defence counsel has, however, every eloquently invited us to take an unusual course on the grounds of mercy.  The defendant is incontrovertibly suffering from Hepatitis C, has cirrhosis of the liver, and is suffering from a number of unpleasant symptoms relating to these serious complaints and associated medical difficulties. The medical reports placed before us make it clear that the defendant is gravely ill. The prognosis is not good. 

7.        The circumstances of this case are, we are satisfied, wholly exceptional.  We think that, having regard to all the circumstances of the case, we can make a further allowance by way of discount, purely as an act of mercy, so that the defendant will not spend his last years entirely in custody.  We allow a further 4 years' discount.  We sentence you on the single count of the indictment to 2 years' imprisonment. 

8.        We also request the prison authorities both here and in the United Kingdom to give urgent consideration to the transfer of the accused to a prison in England where access to specialist medical treatment, which is not available in Jersey, can if necessary be made available to the accused.  As requested by the Crown Advocate we order the forfeiture of the MG motor vehicle pursuant to the Articles 54 - 56 of the Custom and Excise (Jersey) Law, 1999.  We also order the forfeiture and destruction of the drugs.  We have considered whether we should make a recommendation for deportation but in the special circumstances of this case we decline to do so.

Authorities

Campbell -v-AG [1995] JLR136.

AG -v- Clark (24^th July, 2001) Jersey Unreported [2001]155.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp. 150 -151.

Custom and Excise (Jersey) Law, 1999, Articles 54 - 56

Breen -v- AG 30^th September 2002 [2002]167.

R -v- Nazari (1980) 3 All ER 8 80.