Jersey Unreported Judgments

[2007]JRC059

ROYAL COURT

(Samedi Division)

12^th March 2007

The Attorney General

-v-

Dean Perez

Sentencing by the Superior Number of the Royal Court, on a conviction by the Inferior Number on 18th January 2007, on the following charge:

Age:  42.

Plea: Not Guilty.

Details of Offence:

Perez was visiting London with his girlfriend in November, 2005.  He was stopped by Customs Officers as he returned to Jersey at the Airport and nothing of interest was found.  The following day Customs Officers carrying out checks at Jersey Post, Main Office, discovered 4 envelopes containing 4 cards, pieces of paper and cling film wrapped packages containing brown powder.  Two of the cards were addressed to the same person and the other two cards to another person.  The brown powder was analysed and found to contain 21.21 grams of Heroin consisting of approximately between 50% and 52% by weight of Diamorphine.  The street value of this Heroin in Jersey was between £4,242 and £10,605.  The envelopes, cards etc. were all subject to examination by Scenes of Crime Officers.  A number of "Marigold" glove marks were found together with one fingerprint found on one of the cards.  The packaging etc. was submitted for forensic analysis and the conclusion of that forensic analysis was that there was very strong support that the packages had all been assembled at the same packaging facility.

Perez was arrested and whilst he admitted he had been in London, he denied any knowledge of the 4 cards.  He denied buying or sending any cards.  He denied knowing anything about the Heroin.  He stated that he did not think it was possible that his fingerprints would be found on any of the cards.  He agreed to provide a set of fingerprints for comparison purposes.  His fingerprints and the mark found on one of the cards was submitted to the Metropolitan Police Fingerprint Bureau and the conclusion reached by the expert who examined the exhibits was that the fingerprint detail found on one of the cards and the corresponding area on the fingerprint palm impression made by Perez were made by the same person.

Perez was once again interviewed and the existence of his fingerprint on one of the cards was put to him.  He could offer no explanation as to why his fingerprint would be on the card.

He was charged with the offence and on Indictment pleaded not guilty.  He was tried before the Inferior Number when the above evidence was put.  Despite his continued denial of guilt, he was unable to provide any explanation as to how his fingerprint could have been found on the card which was one of the 4 cards containing Heroin.  He was found guilty by the Jurats.

Details of Mitigation:

Crown

Having regard to the weight, value and level of involvement of Perez, the Crown took as its "starting point" a sentence of 8 years imprisonment.  It submitted that there was little by way of mitigation available to Perez.  He had not pleaded guilty and, therefore, was not entitled to the usual credit.  He was not a young offender, nor a first offender.  It was his first drug trafficking offence.  According to the various background reports he maintained his denial and, therefore, did not have the benefit of remorse.  Despite the absence of any obvious mitigation the Crown's stance was that every person should have some mitigation and in the circumstances even though it was difficult to identify any specific mitigation available to Perez, the Crown made a deduction of 18 months from the "starting point".

Defence

The Defence agreed that he did not have the benefit of a guilty plea.  He had, however, been cooperative in the investigation in participating in the interviews and voluntarily attended for interview.  He did not dispute the evidence at trial, thus allowing the trial to proceed quite quickly.  He was, therefore, entitled to discount for saving time/expense.  The forensic evidence had not been challenged.  Reference was made to the various reports which suggested that Perez had a long standing drug addiction and that he had underplayed his drug dependency.  Whilst Perez's instructions were that he denied any involvement, it was suggested that, given his potential dependency, an importation of 21.21 grams might have been consistent with personal use.  The Defence also raised the issue of delay given that the drugs had been discovered in November, 2005 and sentencing was now taking place in March, 2007.

Previous Convictions:

Perez had a total of 6 convictions for 13 offences including offences of dishonesty, possession of drugs/possession of utensils and motoring offences.

Conclusions:

The Crown also sought an Order for the forfeiture and destruction of the drugs.

Sentence and Observations of Court:

The Crown had taken the conventional approach to the issue of a "starting point" and had suggested one of 8 years imprisonment.  The Court, however, must always bear in mind that the suggested guidelines are not tramlines.  The Court had regard to the case of Campbell v AG in which the Court of Appeal stated that the significant point was the degree to which a Defendant was involved in drug trafficking.  The inescapable inference from the quantity of drugs involved and Perez's long term use was that some of the Heroin was likely to fall into the hands of others.  The Defendant had, therefore, added to the quantity of Class A drugs available in the Island.  There was no evidence that he was a serious dealer.  The appropriate "starting point" was, therefore, one of 7 years imprisonment.  The Crown has allowed a deduction of 18 months and the Court agreed that this was the appropriate discount.  However, the Court wished to mark its disapproval at the apparent inability of the States of Jersey Police to undertake straight forward fingerprint forensic work in the Island.  This may be because of operational decisions but that was not a matter for the Court.  If, however, the result of the Island's inability to undertake a simple scientific investigation was a delay in bringing offenders to justice so that a prosecution was hanging over an offender's head for too long then this must be reflected in the sentence imposed by the Court.  The Court, therefore, made a further allowance of 6 months.

The Court made an order fro the forfeiture and destruction of the drugs.

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

Advocate P. S. Landick for Perez.

JUDGMENT

THE BAILIFF:

1.        This Defendant has been addicted to drugs for over two decades.  He has been convicted of drugs offences but not in the recent past.  He is to be sentenced for an offence of being concerned in the importation of heroin, to which he pleaded not guilty, but of which he was convicted by the Inferior number.  The amount of heroin was 21 grams with a street value of between £4,000 and £10,000.  It was found by customs officers who intercepted two packages containing the heroin addressed to fictitious persons.  The Defendant's fingerprint was found on a card in one of those packages.

2.        The first question for the Court is the appropriate starting point.  The Crown Advocate has, applying the conventional approach set out in Rimmer, Lusk and Bade v AG [2001] JLR 373, arrived at a starting point of 8 years imprisonment.  We must, however, as indeed the Court of Appeal itself recognised in Rimmer, always bear in mind that the suggested bands in that case are guidelines and not tramlines within which the Court is confined.  The overarching test is that set out by a five man Court of Appeal in Campbell v AG [199] JLR 136, where the Court stated that the starting point should be assessed by reference to the degree to which a Defendant is involved in drug trafficking.  We find that it is an inescapable inference from the evidence of the quantity of drugs involved, and from the Defendant's long association with others taking drugs in this Island, that some of this heroin would have found its way into the hands of other drug users.  The Defendant certainly added to the quantity of this vicious drug available in Jersey.  However, there is no evidence that the Defendant is a serious dealer in Class A drugs.  We think that the appropriate starting point is one of 7 years imprisonment.

3.        The Crown Advocate has allowed 18 months for the mitigation available to the Defendant and we agree that that is the appropriate discount for those factors.  We wish, however, to mark our disapproval of the delay resulting from the apparent inability of the States of Jersey Police to undertake straight forward forensic fingerprint work in the Island.  We appreciate that these are operational decisions which are not for us, but if the result of the Island's inability to deal with simple scientific investigation is delay in bringing offenders to justice, so that a prosecution hangs over the head of an accused person for too long, that must be reflected in the sentence ultimately imposed by the Courts.

4.        The sentence of the Court is that you will go to prison for 5 years and we order the forfeiture and destruction of the drugs.

Authorities

Rimmer, Lusk & Bade -v- AG [2001] JLR 373.

Campbell & Ors -v- AG [1995] JLR 136.