Jersey Unreported Judgments

[2006]JCA099

COURT OF APPEAL

14^th July 2006

Before     :

The Hon Michael Beloff, Q.C., President; Sir John Nutting, Bt., Q.C.; and J. W. McNeill, Esq., Q.C.

Darren Steven Andrews

-v-

The Attorney General

Application for leave to appeal by Darren Steven Andrews against a total sentence, passed by the Superior Number of the Royal Court on 21^st February on a guilty plea:

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to Article 62(2)(b) of the Customs & Excise (Jersey) Law 1999.

Leave to appeal was granted by a single judge of the Court of Appeal on 5^th June 2006.

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

Advocate D. Gilbert for the Appellant.

JUDGMENT

nutting JA:

Background

1.        On 21 February 2006 the appellant, having at an earlier hearing pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug namely diamorphine contrary to Article 61(2)(b) of the Customs & Excise (Jersey) Law 1999, was sentenced by the Deputy Bailiff and Jurats to serve a period of 15 years' imprisonment.  The appellant applied for leave to appeal which was granted.  He therefore appeals to this Court against sentence.

2.        The events leading to the hearing were as follows.  On 20 May 2005 the appellant (Darren Steven Andrews), Joe Andrade, William Swinburn, Stewart Sylvester and Siobhan Walsh pleaded not guilty at the Royal Court to the count outlined above (count 1) in an indictment containing three counts.  Miss Walsh pleaded not guilty to possession of cannabis contrary to Article 6(1) Misuse of Drugs (Jersey) Law 1978 (count 2); she was charged alone in this count.  Swinburn, charged alone in the last count, pleaded not guilty to being concerned in the supply of diamorphine to another contrary to Article 5(1) of the Misuse of Drugs (Jersey) Law 1978 (count 3).

3.        The Crown accepted Miss Walsh's plea to count 2.

4.        By 12 August 2005 pleas of guilty had been entered to count 1 by the appellant, Andrade and Sylvester.  They remained in custody to await sentence.

5.        Meanwhile, having been granted bail to attend a medical appointment in London on 10 June 2005, Swinburn absconded and remained at large for the next six months.

6.        On 12 October 2005 Sylvester made application to withdraw his guilty plea to count 1.  The application was granted.  In early January 2006 he was tried before the Royal Court and acquitted.

7.        Following his re-arrest Swinburn appeared before the Royal Court on 3 February 2006, maintained his not guilty plea to count 1 but pleaded guilty to count 3.  Those pleas were accepted by the Crown.

8.        The appellant and Andrade, in respect of count 1, and Swinburn, in respect of count 3, were remanded for sentence to 21 February 2006.

9.        On that date in addition to the sentence of 15 years' imprisonment imposed on the appellant, the Royal Court sentenced Andrade to serve 12 years' imprisonment for his part in the same count and Swinburn to serve 6 years in respect of count 3.

10.      Save and in so far as it is necessary to understand the part which Sylvester, Miss Walsh and Swinburn played in the narrative of events, the acquittal of Sylvester and the convictions and sentences in respect of Miss Walsh and Swinburn are not germane to this appeal.  In particular Miss Walsh was charged and convicted only in relation to possession of cannabis; and the very special circumstances of Swinburn's mitigation render the sentence passed on him irrelevant for the purposes of any comparison with the sentences imposed on count 1, quite apart from the obvious distinction between counts 1 and 3.

11.      The sentence on Andrade is relevant however because Advocate Gilbert, who has appeared in this Court for the appellant, submitted that the discrepancy in sentence between the appellant and Andrade should cause this Court to reduce the sentence on the appellant.

12.      The facts which gave rise to count 1 were as follows.  On 6 December 2004 Steven Andrews, the father of the appellant, booked a hire car on behalf of his son from a garage in Manchester.  The Andrews family live there.  The hire was stipulated to be for a period of three days from 9 December and identified the appellant as an additional driver. 

13.      On 8 December a ferry booking was made from Weymouth to Jersey for 10 December and the fare of £317 was paid in cash.  On 9 December, the appellant having collected the hire car, drove from Manchester to Weymouth where he stayed overnight, leaving the following morning on the ferry.

14.      On arrival in Jersey on 10 December the car was stopped and searched by Customs officers who also searched the appellant's baggage and caused the appellant's body to be x-rayed.

15.      Nothing of an incriminating nature was found and the appellant, having told the officers that he had come to the island to investigate the purchase of a house for his parents, was allowed to proceed. 

16.      The officers noted in the appellant's possession evidence of three mobile telephones, two of which they found in the car.  The receipt for the third was found in the appellant's baggage. 

17.      Thereafter, until his arrest the following day, the movements of the appellant were carefully monitored by Customs and Police officers.

18.      That evening he was seen to use public telephones at various locations and to book into an hotel at St Aubin. 

19.      In the meanwhile at 7.30 that same evening Sylvester and Miss Walsh who also live in the Manchester area arrived with their 8 month old baby in a Vauxhall Vectra car at Elizabeth Harbour from Portsmouth.  The car was searched.  Nothing was found and they too were allowed to continue their journey.  Later they booked a room at the Apollo Hotel.  Their movements too were carefully monitored over the course of the next twenty-four hours.  The heroin, the subject matter of count 1, was subsequently found secretly located within their vehicle. 

20.      Later still that evening, the appellant met Andrade, a local resident, and both men drove around St Aubin in a taxi in the back of which they had a whispered conversation which the driver, an uncle of Andrade, was unable to hear.

21.      In the early hours of 11 December the Police mounted observation on Sylvester's Vauxhall Vectra.  It was parked in the car park of the Apollo Hotel.  Shortly after breakfast on 11 December the appellant drove his hired car to the same car park. Andrade was seen parked in a BMW nearby.  A few minutes later Andrade approached the car park, walked round the Vauxhall Vectra as if inspecting it. 

22.      Mid morning on 11 December Swinburn, another local resident, visited the address of the Alan Bates Garage in Trinity, to make an enquiry about car repairs.  Swinburn has known Mr Bates for many years.  Andrade was observed parked nearby in the BMW.

23.      The Crown case against Swinburn on count 3, and the justification for not proceeding against him on count 1, was that he had made arrangements for the Vauxhall Vectra to be taken to Bates' Garage knowing that the car contained drugs and that he was therefore "concerned in the supply of heroin". 

24.      An hour or so later the appellant met Andrade at the car park and spent the rest of the morning with him in the BMW.

25.      At 11.15 am Sylvester and Miss Walsh left the hotel and having entered the Vauxhall Vectra proceeded to drive around the island visiting sites including the zoo.  On various occasions, and notwithstanding his possession of a mobile telephone, Sylvester used public telephone kiosks to make calls. 

26.      On two occasions during the late evening and early afternoon the appellant and Andrade visited the car park or its vicinity and were seen to look towards the spot where the Vauxhall Vectra had been previously parked. 

27.      At 3.25 pm Sylvester returned and parked the car in a different location in the car park, and then returned to the hotel.

28.      Just over an hour later Sylvester left the hotel, got back into the car and remained in the driving seat.  At 4.50 pm the appellant, Andrade and Swinburn were to seen to arrive at the car park in the BMW.  The appellant got out and went up to Sylvester who then started his car and prepared to exit the car park. 

29.      At this point waiting Police officers moved in and the four men were arrested.  A number of mobile telephones were seized and their SIM cards analysed.  None of the telephones, for which the Customs officers had found evidence when the appellant was searched the day before, were found.

30.      The Vauxhall Vectra was searched with the assistance of a Police sniffer dog.  In the nearside door sill of the car, ten packages of similar size and shape, all covered in brown tape, were removed from the space within the sill.  It was apparent that a piece of metal had been cut out of the sills on both sides of the vehicle to create concealed spaces and then replaced and covered by carpet. 

31.      Subsequent analysis revealed that the powder within the packets consisted of a total of 4,898 grams of heroin containing an average of 49% by weight of the drug.  The street value of the consignment is estimated to be between just under £1.5m and just over £2.2m.

32.      The suspects were interviewed.  The appellant declined to comment but later in a voluntary statement dated 17 June 2005 claimed that he and Sylvester had come to Jersey to collect £100,000 which, he explained in a second statement, he was suspicious constituted cash from "duty evasion, drugs, armed robbery etc".  However on 12 October 2005 in a letter to the Crown from his Counsel confirming his guilt, he acknowledged that he "knew that an importation was to take place in Jersey of prohibitive goods and that those goods were drugs".  The letter continues "Mr Andrews knew that he was playing in that enterprise.  He maintains that his only role was to collect money in Jersey in relation to this".  

33.      Andrade admitted knowing Swinburn but said "he wasn't going to grass anyone up and would wait to see what comes out in the wash".  He declined to answer further questions.  Subsequently by letter from his Counsel dated 7 October 2005 having been served with the Prosecution evidence he admitted that he knew that he had been asked to facilitate the importation of illegal drugs into Jersey.  This offence occurred within three months of Andrade's release from serving a sentence of imprisonment for a drug trafficking offence. 

34.      Swinburn claimed he was only present at the car park to "score" some heroin, having purchased heroin with Andrade earlier that day.  In relation to his enquiry at Mr Bates' garage he said that Andrade had asked him to persuade Mr Bates to give him a key to the garage so that the garage could be used on that Saturday, 11 December 2004, out of hours.  The key for the garage was found on Swinburn after his arrest.

35.      The appellant is over 30, and Andrade just under 30, years of age.  Neither is of good character.  The appellant has convictions for dishonesty, offences involving public order, violence and possession of cocaine.  Andrade has convictions for similar offences including supplying controlled drugs and possession of such drugs with intent to supply. 

36.      In mitigation for the appellant it was admitted that he was the link man between Sylvester, the person having control of the car in which the drugs were concealed, and the local man, Andrade.  It was suggested that he should not be regarded as an organiser of the importation but rather as a runner and that his presence in Jersey was limited to collecting the £100,000 which presumably represented the purchase price of the heroin and for which activity he was to be paid £2,000.

37.      On behalf of Andrade it was submitted to the Royal Court in mitigation that he had suffered a long term drug problem, and that his only proven involvement was as the person responsible for finding a garage where the Vauxhall Vectra could be dismantled.  He claimed that he had been pressured to assist because of drug debts of £10,000.  It was said he had no knowledge of the nature of the drug being imported. 

38.      In its Conclusions the Crown moved for a starting point for the sentence on the appellant of 25 years.  The justification for this figure included the fact that the consignment consisted of nearly 5 kilos of a class A drug and that the appellant was plainly an organiser of the importation.  The Crown suggested that a deduction limited to three years should be made for the appellant's mitigation on the basis that a plea of guilty was inevitable and that he was therefore entitled only to a small deduction for his plea.  The resultant sentence on the appellant, the Crown suggested, should be 22 years' imprisonment.

39.      In the case of Andrade the Crown conceded that he should not be classed as an organiser but as the local man, highly trusted, and close to the source of supply.  The Crown moved for a starting point of 20 years for him which, with mitigation and the same assertion concerning the inevitability of the plea, resulted in a calculation of 17 years as the appropriate sentence.

40.      In giving judgment on behalf of the Court the Deputy Bailiff emphasised the size of the consignment and the harm to the local population.  He pointed out that because the Rimmer guidelines (Rimmer v AG [2001] JLR 373) suggested starting points of 14 years and upward for Class A drugs weighing 400 grams or more but were silent on any brackets for weight of drug higher than this, the Court was in unchartered territory.

41.      He emphasised that while an exponential increase based on the difference between 400 grams and 4 kilos was manifestly inappropriate, a starting point significantly higher than 14 years was inevitable for both offences.

42.      The Court decided that a sentence of 21 years should be the starting point for the appellant, rather than the 25 year figure suggested by the Crown; and 17 years for Andrade, rather than the 20 year figure suggested for him.

43.      Making allowance for mitigation and having regard to the pleas of guilty the Royal Court increased the allowance from 3 years to 6 years for the appellant making a final sentence of 15 years; and from 3 years to 5 years for Andrade resulting in a final sentence of 12 years' imprisonment.  

44.      Advocate Gilbert who has appeared for the appellant in this Court has urged us to reduce the sentence of 15 years imposed by the Royal Court on two bases.  First she submitted it was too long having regard to a comparison with other cases and second that there was too great a disparity compared to the 12 year sentence passed on Andrade.

45.      In relation to overall length we have reminded ourselves what this Court said in AG v Carter, Allan & Hume [2005] JRC 051 at para 11:

"In our judgment sentences for drug offences do not increase exponentially with the amount of drugs in question.  Quantity is certainly important, because the damage done to the young people of Jersey increases with the amount of drugs which are brought in or supplied; and in the case of an organiser who knows exactly how much he is importing or supplying we think that quantity will be very significant.  If a person knowingly and for profit decides to deal in very large quantities he must expect to pay a very substantial price if he is caught."

46.      It is a salutary reminder of the significance of this importation that this was the largest importation of Class A drugs ever intercepted in this jurisdiction.  The quantity of heroin was sufficient for between approximately 30,000 and approximately 44,000 individual wraps.  The profit to the organisers was in the region of 200%.  The potential damage to the health of the 500 heroin addicts in Jersey (estimated in June 2005) is incalculable.

47.      It is also important to reflect on the sophistication of this conspiracy, the way in which the drug was concealed in the vehicle, the apparent innocence of the importers of the car who arrived with an 8 month old baby, the way in which those concerned behaved in the hours after the importation, the care taken to avoid telephone interception, the careful surveillance of the car over many hours to see if any law enforcement agency expressed interest overt or covert, and the care with which arrangements were made to remove the car to the privacy of a garage which, at the relevant time, would be closed to other vehicles and would have none of its usual staff in attendance.

48.      In the absence (at present) of any guideline case other than the indication in Rimmer that for offences involving more than 400 grams of a Class A drug a starting point of 14 years and upward is appropriate, Miss Gilbert has referred us to two cases, Durkin and Howard v AG [2005] JCA 002, and AG v Carter, Allan & Hume. 

49.      The significant features of Durkin were that it was a conspiracy to import approximately 1,000 grams of heroin; the offenders were considered to be organisers; the pleas were not guilty; and the starting point was 15 years with a 13 year final sentence.

50.      In Carter, the offence was importation, the total weight of drugs, heroin and cocaine, approximately 2,500 grams; the defendants were considered to be couriers; the plea was guilty; and the starting point was 16 years with an 8 year final sentence.

51.      Miss Gilbert made the point that Carter, Allan & Hume involved 2½ times more Class A drugs than occurred in Durkin and Howard resulting in an increase in starting points of only one year.

52.      By contrast in the instant case, twice the amount of drugs resulted in an increase in starting points of 5 years. 

53.      The main objection to these comparisons is that the offenders in Carter, Allan & Hume were mere couriers about whom it was conceded by the Crown in that case

"none of these defendants knew the exact quantities of the drugs involved ... they were not organisers, they were all cogs in the distribution network".

54.      In these circumstances we find the starting points of Carter, Allan & Hume less helpful than those of Durkin and Howard.  A comparison between that and the instant case, notwithstanding the obvious differences between them, shows that the amount of drugs increased by four times and the starting point by 6 years.

55.      We do not regard such an increase as inappropriate.  Indeed bearing in mind the dreadful impact so large an amount of heroin would have in this small island community, we consider that the figure chosen as the starting point was well within the bracket of discretion available to the Royal Court in this case. 

56.      The Royal Court made findings of fact about the part played in this importation by Andrews.  He was described in the sentencing remarks as "the most significant and important" player of those before the Court.  In accepting that he was not going to share in the profits of the sale, the Deputy Bailiff said:

"You were trusted to play an important part by coming to Jersey, liaising between Sylvester and Andrade, receiving the money and taking it back to the United Kingdom."

57.      We desire only to emphasise this last comment.  Anyone who acts as the recipient of a sum of £100,000 representing the purchase price of Class A drugs is necessarily a person very close to the principals and trusted implicitly by them.

58.      Moreover in deciding on the starting point the Royal Court quoted a later passage in AG v Carter, Allan & Hume in which the Court, referring to the case of someone who plays "a minor part", said

"But in the case of someone who plays a minor part and is not even aware of the quantity, and perhaps even the nature of the drugs, there must be an element of tapering off as amounts increase if sentences are not to become unduly harsh for what the offender has actually done.  As Mr Steenson rather graphically put it in mitigation, there must be a levelling off of the curve, as the amount of drugs increases."

59.      We agree with this principle and would not limit its application to those playing "a minor part" but would include others more deeply involved in offences concerning Class A drugs where the amounts are significantly in excess of the 400 gram range.

60.      But, as the Deputy Bailiff observed, tapering off does not mean a complete flattening of the curve and quantity remains an important element in sentencing for drug offences.

61.      Miss Gilbert's second point is disparity.  She submits that the appellant has a justified sense of grievance because the sentence passed on Andrade is 3 years less than that passed on the appellant.

62.      The Royal Court made findings of fact concerning Andrade's role, including the fact that he was the contact point in Jersey, (although not in charge of distributing the drugs), and that he was the link man to Swinburn for the provision of the garage.

63.      On any view Andrade played a lesser role and was recruited to clear a substantial drug debt.

64.      The test for disparity is set out in Wight v AG [1999/125] JCA:

"whether right thinking members of the public with knowledge of all the relevant facts would consider that something had gone wrong with the administration of justice."

65.      We are satisfied that the differences in the sentences passed on the appellant and Andrade falls far short of this test.

66.      On the evidence available to the Royal Court there was a real difference in the role played by the two men and their respective closeness to the organisers.  As Rimmer makes clear, the roles played by different defendants must play a significant part in the way each defendant is sentenced. 

67.      Moreover It is clear that in this case the Royal Court gave careful consideration to the starting point in the appellant's case and decided, rightly in our judgment, significantly to reduce the starting point suggested by the Crown and significantly increased the amount for mitigation and plea suggested by the Crown in its Conclusions.  We have found nothing to criticise in the way in which the Royal Court reached its decision nor indeed in the decision itself.

68.      Miss Gilbert did not advance grounds to suggest that the reduction for mitigation and plea was insufficient, which was wholly justified since in our judgment it is clear the Royal Court made appropriate allowance for the plea of guilty and other mitigation.

69.      Accordingly the starting point of 21 years stands as does the resultant sentence of 15 years.

70.      The appeal is dismissed.

Authorities

Customs & Excise (Jersey) Law 1999.

Misuse of Drugs (Jersey) Law 1978.

Rimmer v AG [2001] JLR 373.

AG v Carter, Allan & Hume [2005] JRC 051.

Durkin and Howard v AG [2005] JCA 002.

Wight v AG 1999/125.