Jersey Unreported Judgments

[2007]JRC054

ROYAL COURT

(Samedi Division)

28^th February 2007

Before     :

Sir Richard Tucker, Commissioner, and Jurats de Veulle, Allo, King, Le Cornu and Quérée.

The Attorney General

-v-

John O'Connor

Alan James Smitton

Anthony Carl Norman Courval

Neil Andrew Heskin

Jeremy Godel Le Geyt

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

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, contrary to Article 61(2) (b) of the Customs and Excise (Jersey) 1999.

S. E. Fitz, Crown Advocate.

Advocate O. A. Blakeley for O'Connor.

Advocate D. P. Le Maistre for Smitton.

Advocate A. J. Clarke for Courval.

Advocate J. P. Michel for Heskin and Le Geyt.

JUDGMENT

THE COMMISSIONER:

1.        We have before us applications by the Attorney General for confiscation orders.  These relate to five of the eight defendants who were sentenced by the Superior Number on 18^th December last year.  The five defendants now before the Court include three who were regarded, by the Crown and by the Court, as those most deeply involved, O'Connor, Smitton and Courval.  The remaining two, Heskin and Le Geyt, were not so seriously involved in the offence, which was conspiracy to import a massive amount of cannabis resin.

2.        So far as the defendants Courval, Heskin and Le Geyt are concerned, they do not dispute the Attorney General's statements or the orders sought to be made against them.  We have already declared the benefits which they received and the amounts ordered to be confiscated are as follows: Courval, benefit £11,156, confiscation order the same amount; Heskin, benefit £38,120, confiscation order £1; Le Geyt, benefit £9,500, confiscation order £1. 

3.        The benefit which we declared in Courval's case represents 1/3 of what we find to be the cost of the drugs abroad, £33,470.  The Attorney General has approached the matter on the basis that the Court may assume, under Article 5(3)(b) of the Drug Trafficking Offences (Jersey) Law 1988, that this money has come from drug trafficking, that the three organisers, or those most deeply involved, are jointly liable and that the value of the proceeds, or benefit, should be equally apportioned between them, as has been indicated.  The defendant Courval, who has been represented before us, makes no objection to this approach.  In our view it is correct and we adopt it.  Objection is taken on behalf of the defendants O'Connor and Smitton, albeit that the amount sought to be confiscated from them are insubstantial, if not paltry, £143 and £94 respectively.

4.        Advocate Blakeley, on behalf of O'Connor, makes a number of submissions before us.  It must be recognised that the provisions of the 1988 Law are draconian, and that they are designed, and intended, to deprive drug dealers and importers of the large profits which they may make out of their crimes.  We pause to reflect that in the present case, the cost of the drugs in Holland is estimated to be £35,000, whereas the street value in Jersey would have been in the order of £400,000.  Advocate Blakeley's first submission relates to the standard of proof to be adopted in these cases.  He refers us to Article 3 of the Law which, in paragraph 3, recites:

"For the purposes of this Law, a person who has at any time (whether before or after the commencement of this Article) received any payment or other reward in connection with drug trafficking carried on by the person or another has benefited from drug trafficking."

And in paragraph 7:

 The standard of proof required to determine any question arising under this Law as to -

(a)     whether a person has benefited from drug trafficking; or

(b)     the amount to be recovered in the person's case by virtue of this Article,

shall be that applicable in civil proceedings."

The difference is this that in criminal proceedings, of course, a person cannot be convicted unless the Court is sure of his, or her, guilt, whereas in civil proceedings the standard of proof required is that of balance of probability is more than 50/50.  As to paragraph 7(a), Advocate Blakeley submits, and observes, that the expression "whether a person has benefited from drugs trafficking" does not express whether a person is, or has been, involved in drug trafficking.  He also then refers to the provisions of Article 5 of the Law.  Article 5 paragraph 2 is in these terms:

"The Court may, for the purpose of determining whether the defendant has benefited from drug trafficking and, if the defendant has, of assessing the value of the defendant's proceeds of drug trafficking, make the following assumptions, except to the extent that any of the assumptions are shown to be incorrect in the defendant's case."

Paragraph 3 provides, so far as is material to this case:

"Those assumptions are -

(b)     that any expenditure of the defendant since the beginning of that period [the period being 6 years] was met out of payments received by the defendant in connection with drug trafficking carried on by the defendant; "

Advocate Blakeley submits that the assumption as to the benefit can only be made once expenditure has been established and that expenditure must be established according to the criminal standard of proof.  We disagree.  Article 5(3)(b) is clearly tied in with, and only concerned with, the provisions of Article 5(2) relating to the determination of benefit.  In our view both provisions are governed by the civil standard of proof, that is to say, balance of probabilities.  In any event it is doubtful whether the distinction would assist the defendant in the present circumstances.

5.        Advocate Blakeley's second submission is based on the case of R v Dellaway [2001] 1 Cr. App. R. (S.) 77, a decision of the English Court of Appeal Criminal Division, given on 3^rd July 2000.  He relies on the editor's note contained in H2 of the report which is before us.

"where a person convicted of a drug trafficking offence is found to be in possession of drugs, and gives no credible explanation of how they came into his possession, it may be appropriate for the sentencer to infer that they have been bought for cash and make the required assumption that the expenditure was made out of the proceeds of drugs trafficking."

Advocate Blakeley says that the Crown must show that the defendant, O'Connor, was in possession of the drugs, before any assumption, or inference, can arise.  He accepts that it is not necessary to show actual physical possession, but submits that it has to be proved, he says to the criminal standard, that O'Connor was in control of the drugs.  We have no doubt that he was and that the prosecution have clearly proved it.  In sentencing him, I said this on behalf of the Superior Number:

"the Court regards you as the organiser and main director of the present offence and the defendant most deeply involved.  You were mainly responsible for the importation which would have resulted in considerable profit, and in our view you were playing for high stakes."

In the view of the present Court, Mr O'Connor was clearly controlling and orchestrating this importation, and he was equally clearly in legal possession of the drugs involved.

6.        Advocate Blakeley's third submission is based on Article 5(2) to which I have already referred, and the phrase "except to the extent that any of the assumptions are shown to be incorrect in the defendant's case."  Advocate Blakeley draws attention to the Crown's original statement of facts and to the deletions made to it after a letter written to the Crown by Advocate Blakeley.  He submits that O'Connor did not finance the purchase of the drugs, and refers to his speech in mitigation at the sentencing hearings to that effect.  He submits that it cannot be said that O'Connor incurred any expenditure in so doing, so the assumption cannot apply.  I refer again to the phrase "except to the extent that any of the assumptions are shown to be incorrect in the defendant's case."  We have heard no evidence from Mr O'Connor in the present proceedings on this point and there is nothing before us to show, in our view, that the assumptions are incorrect, nothing has been adduced before us to show that. 

7.        Crown Advocate Fitz responds that the Crown did not make any explicit concession to the Defence assertions.  She too relies on the editors note to Dellaway to which reference has already been made, and I repeat: 

"where a person convicted of a drug trafficking offence is found to be in possession of drugs [we have already found that O'Connor was], and gives no credible explanation of how they came into his possession [we've already noted that he has not], it may be appropriate for the sentencer to infer that they have been bought for cash and make the required assumption that the expenditure was made out of the proceeds of drugs trafficking."

We are satisfied that it is appropriate for us to infer that these drugs were bought for cash and to make the assumption that the expenditure was made out of the proceeds of drug trafficking.

8.        Advocate Blakeley's fourth and final submission is that any assumption as to expenditure should be divided equally between all eight defendants.  We do not agree with this submission.  In our view it should be divided equally only between those defendants who are considered the principle organisers and arrangers, and should not extend to lesser participants who for example merely bought or crewed the boat used for importation.  We have no doubt that had this criminal scheme succeeded the profits would have been divided adopting a similar approach.  It is unrealistic to think that the expenditure would have been contributed to by all defendants equally.

9.        Therefore we are not persuaded by Advocate Blakeley's submissions.  In any event it seems to us that they would not affect the final sum ordered to be confiscated which, as I have said, is a paltry amount. 

10.      Advocate Le Maistre, for the defendant Smitton, first of all does not associate himself with, or adopt, Advocate Blakeley's submissions regarding the standard of proof.  He accepts that the civil standard is the appropriate one to be adopted.  His submissions are twofold.  First of all as to the benefit, here he is content to adopt Advocate Blakeley's submissions.  He submits that the Crown say that as organiser Smitton was in possession or control of the drugs, but that that cannot be proved.  He points to the fact that it was Courval who was found to be in physical possession of the drugs.  He observes that Advocate Morley-Kirk, who represented Smitton at the sentencing proceedings, said: "he did not get directly involved with the drugs themselves."  The Court, he submits, cannot find that Smitton had possession of these drugs and therefore any assumption cannot apply.  We have dealt with the question of possession already.  This Court is quite satisfied that he, as well as O'Connor, was in possession of these drugs, if not physical possession then legal possession for the reasons we have described.

11.      The second submission goes to the amount to be realised, an even smaller sum of £94, which was seized from the flat occupied by Mr Smitton and his girlfriend, £14 from the lounge and £80 from a drawer in Smitton's bedroom.  We have had placed before us a letter from his girlfriend, or partner, Miss Barton, she says this:

""I would like to confirm that the money found in my apartment, in the bedroom drawer which I believe at the time to be the value of £80, was my own money that I used for day to day living expenses."

That letter was signed by her but we cannot, I fear, place any reliance on it, or attach any weight to it; it is not supported by Miss Barton or by evidence from her in the witness box, we are told that she does not wish to, or cannot, come to Court, we are not told that she is unable to come to Court had she wished to support this assertion.  However, Mr Smitton, himself, gave evidence before us.  As to the £80 in cash he told us that he had been working as a labourer earning good money, £4-500 per week, he says he always gave his girlfriend £200 or £230 a week to pay the household bills and she put it in a drawer in the bedroom, and that he gave it to her in order to pay rent and so on.  That is at variance with answers which he gave to the Police when interviewed about this offence, according to the transcript of that interview, he said this:

"You've just raided my house right.  I've got about £80 in cash.  I've been working since I got back here.  So all this money, where's my money.  I work, I work nearly 6 days a week, know what I mean."

In any event, even if his evidence before us was true, it does not mean that the money was not his money.  It was money which he had earned, it was money which he had put in a drawer or given to his girlfriend for the purpose of keeping both of them and paying their household expenses.  The fact that it had been passed over to Miss Barton for those purposes does not, in our view, mean that it was not still his money.  It falls, in our view, to be confiscated.

12.      That seems to us to deal with the matters raised before us, we have listened, as I hope has been apparent, with care to the submissions made before us by Advocate Blakeley and by Advocate Le Maistre, but we regret we cannot acceded to them

13.      Accordingly the orders to be paid in these two cases are these.  In each case we declare the benefit received by each of these defendants, O'Connor and Smitton, to be £11,156.  We make confiscation orders against O'Connor of £143 and against Mr Smitton of £94.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

R v Dellaway (2001) 1 Cr. App. R. (S.) 77.

AG v O'Connor and Ors [2006] JRC194.