Jersey Unreported Judgments

[2006]JRC180

ROYAL COURT

(Samedi Division)

5^th December 2006

The Attorney General

-v-

Martin Edward Gaish

Confiscation Hearing by the Superior Number of the Royal Court, after conviction and sentence on:

(Counts 1 -4 and 6 - 11, Count 5 having been withdrawn)

Mrs S. Sharpe, Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application by the Crown for a confiscation order, under the Drug Trafficking Offences (Jersey) Law 1988, on the basis that the defendant has benefited from drug trafficking.  The defendant was convicted before the Inferior Number on a total of ten counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs.

2.        The defendant accepts that he has benefited to the extent of £34,470.  This was the total amount of cash which was paid into various accounts of his or was found in his possession at the time of his arrest or on a previous occasion when he was stopped at the airport. 

3.        The issue before us is whether, in addition to that, he has also benefited by a further £55,700.84.  This is summarised in paragraph 4.4 of the Attorney General's statement, although the figures were amended slightly this morning by Crown Advocate Sharpe to the figure I have just given.

4.        The main element of this suggested additional benefit is made up by the cost price of the cannabis which was imported.  The Crown say that the cost price of cannabis in England was £800 a kilo and that allowing, not only for the cannabis in the importations for which he was convicted, but also for 6 further importations that they say took place, the aggregate expenditure by the defendant in purchasing this cannabis was some £54,000.  The Crown says that this was expenditure which, if the Court applies the assumptions referred to in the Law, can be treated as having been paid out of the proceeds of drug trafficking.

5.        The defendant, on the other hand, says firstly that he did not import as many packages as the Crown say and that on the occasions which were not charged, he was not in fact importing cannabis.  But secondly, and more importantly, he says that he did not buy the cannabis.  He says that he was merely a courier.  He was given the drugs by those who had prevailed upon him to undertake this exercise.  He took delivery of the cannabis from them, he packed it up, he arranged for it to be sent through U.P.S. as agreed and to be picked up in Jersey.  He says that his sole benefit was the cash which he received together with the forgiveness of a debt to which he made reference.

6.        The Court has had an opportunity of considering the evidence and has concluded that it is not satisfied that he purchased the cannabis.  In essence there are two main reasons for this.  Firstly, if in fact he purchased the cannabis then he must have sold it.  Even if he sold it for the same price that he purchased it, this would mean a receipt of at least £54,000.  In reality of course he would have sold it for more so there would have been a greater amount.  Yet the Crown accepts there are no suspicious movements in any of the defendant's bank accounts.  Furthermore, there is no evidence before us of the existence of cash or of unexplained expenditure or of anything of this nature.

7.        Secondly, the Court has seen and heard the defendant give evidence and, notwithstanding the fact that he clearly acted dishonestly in pleading not guilty to the charges when he knew that he was guilty, nevertheless the Court is satisfied that his account about this particular aspect is probably true.  The Court accepts on the balance of probabilities that he probably was a courier in the way that he describes. 

8.        Accordingly, it follows that the Court is not satisfied that there was expenditure by the defendant in purchasing the cannabis.  It follows that if there was no expenditure, then of course it cannot be treated as the proceeds of drug trafficking.  As to items (c) and (d) of paragraph 4.4 of the Attorney General's statement, these are minor matters but the Court is not satisfied that they were paid out of the proceeds of drug trafficking.  In the circumstances the Court concludes that the benefit was, as contended for by the defence, £34,470. 

9.        Under the Law we must next consider the amount of realisable property.  It is not disputed by the defence that the realisable property exceeds the sum of £34,470.  Indeed the defendant accepts that he is the joint owner of a property in the UK with his partner and that that property was purchased for a total of £270,000, so that his half share is worth at least £135,000.

10.      In the circumstances, therefore, the Court makes a confiscation order for the level of benefit, namely £34,470.  We also allow 9 months to pay in order to give the defendant an opportunity to see if he can raise the necessary money against the property.  At some stage it may also be open to the Attorney General to take steps to enforce the confiscation order against the defendant's assets in England.

11.      That leaves the question of the sentence in default should the sum due under the confiscation order not be paid.  Mr Haines has referred us to Fortson Misuse of Drugs: Offences, Confiscation and Money Laundering (5^th Edition) and in particular to paragraph 13-165 and 166.  It appears in England that there is a statute which sets out the maximum periods of imprisonment in default for various levels of confiscation order or fine.

12.      Arguing from that, Mr Haines submits that, if the confiscation order is in the sum of £34,470, the default sentence should be 15 months.  We have to say that we find that argument to be ill founded.  That is an English statute which has no application in Jersey.  We propose therefore to pay no regard to it.

13.      What we do consider as important is a useful comment of Hobhouse L.J. in the case of French [1995] 16 Cr. App. R (S) 841 which is referred to at paragraph 13-166 of Fortson and in particular this passage:

"However, the hypothesis on which the order in default has to be made is that there is a wilful and total refusal to comply with the order.  It postulates that the relevant person may be preferring to serve an additional period of imprisonment rather than comply with the financial order.  It is not the role of the courts to encourage a defendant in any way in his non-compliance with the order.  The period of imprisonment in default which is imposed should be such, within the maxima permitted, as to make it completely clear to the defendant that he has nothing to gain by failing to comply with the order".

14.      We entirely agree with those sentiments but of course there is no permitted maxima in Jersey and accordingly the passage is to be construed without reference to such maxima.  The principle, therefore, is that the default sentence should be such as to make it completely clear to the defendant that he has nothing to gain by failing to comply with the order.  The policy is to encourage compliance. 

15.      In the circumstance, we think the Crown's proposal for a 2 year sentence in default, even though originally based on the larger confiscation order that they sought, is absolutely correct and we so order.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

Fortson Misuse of Drugs: Offences, Confiscation and Money Laundering (5^th Edition) pp 13-165 and 166.

French [1995] 16 Cr. App. R (S) 841.