Jersey Unreported Judgments

[2007]JCA104

COURT OF APPEAL

14^th May 2007

Before     :

Sir Philip Bailhache, Kt, Bailiff, President; D.A.J. Vaughan, Esq., Q.C., and; J.W. McNeill, Esq., Q.C.

Neil Heskin

John O'Connor

Edward Sandland

Alan Smitton

-v-

The Attorney General

Application for leave to appeal against the sentences passed by the Superior Number of the Royal Court on 18^th December, 2006, on guilty please to:

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.  (Count 1).

S. E. Fitz, Crown Advocate.

Advocate J. P. Michel for Heskin.

Advocate O. A. Blakeley for O'Connor.

Edward Sandland representing himself.

Advocate L. K. A. Richardson for Smitton.

JUDGMENT

McNeill JA:

Introduction

1.        These applications for leave to appeal against sentence arise out of the prosecution and conviction of each of the Applicants in the Royal Court on one count of conspiracy to contravene Article 61 of the Customs & Excise (Jersey) Law 1999.  The particulars of the offence were that the Applicants and certain other defendants, between 1st September 2005 and 18th November 2005 conspired together, and with others, fraudulently to evade the prohibition on the importation of a controlled drug specified in Part II of the Second Schedule to the Misuse of Drugs (Jersey) Law 1978, namely cannabis resin. All those charged eventually pled guilty to conspiring fraudulently to evade the provisions of Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, and on 18th December 2006 were sentenced. 

2.        The salient circumstances surrounding the events which led to the prosecution and conviction were set out in a Statement of Facts, duly adjusted between the Crown and the accused.  On 18 November 2005, at approximately ten to nine in the evening, a motor vessel coming from France entered St. Aubins Bay and, having turned off its navigation lights, headed towards Belcroute Bay.  After dropping anchor a tender was put over the side and a cargo carried to the beach.  The cargo was unloaded to persons waiting on the beach and the tender returned to the vessel.  The cargo was 69.5 kilos of cannabis resin with a street value of approximately £400,000.  As it was being moved from the beach, the States of Jersey Police made their first arrests. 

3.        The Statement of Facts also reflected evidence available to the police both from visual and photographic observation and from telephone analysis.  Thus it could be seen that, appropriately characterised, the role of some of the applicants fell into a particular level of organisation, liaison and financing, whereas that of others was a greater or lesser involvement in the physical importation and in certain earlier attempts.  The importation had been planned from at least September 2005, and prior to the eventual successful importation a number of attempts and trials had been made to import drugs by boat from France.  An attempt in October failed due to adverse weather conditions.  A sea trial took place in November using a different boat but failed due to mechanical problems.  A second attempt was made on the day preceding the importation and using the same vessel, but the vessel, having travelled to France, had to return empty handed due to problems encountered by the suppliers of the cannabis in France. The roles of the individual participants, and in particular those now seeking leave to appeal, as taken from the Statement of Facts, is set out below. Here we set out the sentences passed.

O'Connor    starting point - 12 years;         after mitigation - 9 years           

Smitton        starting point - 12 years;       after mitigation - 8 years

Heskin          starting point - 11 years;       after mitigation - 6½ years

Sandland      starting point - 10 years;      after mitigation - 5½ years

Weight comparison with other judicial decisions

4.        On behalf of the applicants Heskin and Smitton it was contended in written argument that, because there was a marked difference in the weight and street value of the drugs imported in the present case and those imported in the case of Styles, Day, Carney and De Sousa v AG [2006] JCA 095, (to which we will refer hereinafter as Styles) lower starting points, or a lower 'benchmark' starting point for those most seriously involved, should have been adopted.  Thereafter they went on to identify individual differentiating characteristics in respect of each of these three respective applicants. 

5.        In our opinion this opening approach is unsound.  In the leading case of Campbell, Molloy and Mackenzie -v- AG [1995] JLR 136 (to which we will refer hereinafter as Campbell) the guidance provided by the Court of Appeal identified that the three bands (A, B and C), and their starting points, are set by reference to amounts and correlative street values.  However, as the Court of Appeal had agreed with the Attorney General that it would be desirable to adopt the same sentencing approach for all drug offences irrespective of whether the drug involved is in Class A or Class B ([1995] JLR 136, 147 lines 30 - 32), it is apposite to recollect what the Court of Appeal had earlier said in that case, in the context of Class A drugs, as regards the appropriate starting point for the particular individual:

"In the passages from the judgment in Clarkin which we have cited above, this court laid down a band of starting points between six and nine years' imprisonment.  A starting point of nine years' imprisonment was considered to be appropriate for an offender whose involvement in drug dealing was akin to that in Fogg -v- Att. Gen.   Fogg had been arrested in possession of 1,000 units of LSD.  He had arrived in the Island only a short time before his arrest.  Within a few hours he had received this large quantity of LSD and had set about selling it.  He was also sentenced at the same time for other offences involving the possession and supply of cannabis.  He was a mature man with one previous conviction for a drugs offence.  In our judgment, the appropriate starting point for a case of drug trafficking of that nature would now be one of twelve years' imprisonment.  If the involvement of a defendant in drug trafficking is less than that of Fogg, the appropriate starting point will be lower.  If the involvement of a defendant in drug trafficking is greater than that of Fogg the appropriate starting point will clearly be higher.  Much will depend upon the amount and value of the drugs involved, the nature and scale of the activity and, of course, any other factors showing the degree to which the defendant was concerned in drug trafficking." (pages 144 - 145). 

Having agreed upon the same sentencing approach, the Court of Appeal continued:

"We also agree that in cannabis cases the appropriate starting points in the case of quantities over 30 kg. are a minimum of 10 years' imprisonment...........We reiterate, for the avoidance of doubt that these figures are starting points before any mitigation is taken into account on any ground. We also reiterate that no distinction is to be drawn between cases involving importation and those involving supplying or possession with intent to supply. The guidelines set out above apply equally to all cases involving the trafficking of Class B drugs on a commercial basis." (page 147, lines 32 - 42)

6.        Thus, the appropriate band is taken from the weight of the drugs involved. But in the later case of Rimmer, Lusk and Bade -v- AG [2001] JLR 373, (hereinafter Rimmer) the Court of Appeal made it quite clear that, whilst bands were set by reference to weight, the adjustment to be made within these bands could be made 'to take account of the role and involvement of the defendant, and of other less significant factors including street value.' (page 390, paragraph 32). The Court went on to say (at paragraph 34):

"We emphasise that these bands represent only guidelines and are not to be treated as if embodied in a statute.  The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of the drugs and their role and involvement as principal factors, together with other lesser but relevant factors....The margins of these bands are also not to be treated as set in stone. There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate."  

7.        It seems to us that the issue raised here is whether weight (and co-relative street value) continues to be a first, or separate, relevant guiding factor when the Sentencing Court moves to consider the appropriate placing within the band. In our view, if one accepts, as we do, the logic set out in Clarkin -v- AG [1991] JLR213, Campbell and Rimmer, the band is set by the weight, and the place within the band by weight and also by the role and involvement of the individual in question. At a conceptual level, if, having identified a band by reference to a weight range (in other words, identifying a range by reference to one qualitative aspect) to refine further an initial consideration of starting point by reference to weight within that range is to destroy the concept of range as one of assistance in treating a variety of weights as of tolerably equal importance in approaching sentencing. At a practical level, if the range of starting points for sentencing is but 2 years in each band (as it was in Rimmer), overly to highlight again the weight issue leaves the Sentencing Court with the problem that the appropriate place within the band becomes unacceptably narrow for dealing with all participants from 'mule' to 'baron' in respect of a single importation. We therefore reject the submission that the Sentencing Court must place particular emphasis on co-relative weights in other sentencing decisions, rather than having regard to the combination of weight, role and involvement. We do not read the views of the Court of Appeal in Rimmer at paragraph 34 as seeking to change the emphasis which it had laid in paragraph 32.

8.        We therefore now turn to consider the submissions made on behalf of individual applicants as regards both appropriate starting points and the appropriate approach to mitigation. In so doing we consider it appropriate to proceed by starting with the most heavily involved and working down from there.

O'Connor

Starting Point

9.        On behalf of O'Connor, in company with Smitton and Heskin, it was submitted that the Royal Court erred in adopting a starting point of 12 years' imprisonment for those most heavily involved and, in particular, in doing so by reference to the decision of this Court in Styles.  It was submitted that O'Connor's role and involvement was less than, or at least not greater than, the role taken by the defendant Day in the case of Styles.  Accordingly, the starting point for O'Connor should be no greater than 11 years.  We should stress at the outset that Styles is not a guideline case and therefore should not be one against which the starting points in this case should be judged; still less comparison be made between the different roles of individual defendants in the respective importations.  

10.      In dealing with O'Connor, the court below, whilst noting that the prosecution did not suggest that he was the ultimate principal or main supplier of the drugs, indicated that it regarded him as the organiser and main director of the present offence and the defendant most deeply involved.  The court further indicated "You were mainly responsible for the importation which would have resulted in considerable profit, and in our view you were playing for high stakes."

11.      In the second place reliance was placed upon the fact that, in monetary terms, the present importation was approximately £100,000 less than the amount in the case of Styles.  Given that the operating band covers all importations over 30 kg within a range of 10 to 14 years, we do not consider this to be a factor of particular significance.

12.      The submissions on behalf of O'Connor went on to suggest that the Sentencing Court had misdirected itself in failing to take account of the point that the statement of facts had contained no reference to Mr. O'Connor being involved in the financial aspects of the importation.  We do not consider that the views expressed in the court below run counter to this position.  What the learned Commissioner stated, at page 83, was "The prosecution do not suggest that you were the ultimate principal or main supplier of the drugs, there is no doubt a suggestion that you received instructions and finance from somewhere else." Given O'Connor's role as being 'mainly responsible for the importation' would bring with it, naturally, the receipt of finance to enable importation; this is not the same as being involved in the financing of the operation.

13.      Finally it was suggested that account ought to have been taken of the fact that, in Styles, the defendant Day had pleaded not guilty whereas in the present case, the defendant O'Connor had pleaded guilty.  This is a matter to be taken into account in relation to mitigation.  It does not relate to the involvement of the individual defendant in the importation. 

14.      In all the circumstances we do not consider that the starting point of 12 years was either manifestly excessive or contrary to principle.

15.      We further reject the suggestion that in a case such as this it is necessary for either the sentencing or appellate Court to attempt to enter into a minute comparison of the circumstances in the case before it and the apparent circumstances of other decided cases. In particular we do not think that any indication of such an approach being required is to be found either in the passages from Campbell to which we have referred or in the underlying passages in Clarkin. In Clarkin (at page 219) the Court of Appeal referred to comparable involvement. It is trite to say that a Court considering its own case will rarely have the same amount of information in respect of another case and an appellate Court will rarely have the same feel for a case as the Sentencing Court. It seems to us that, in matters such as these, an appellate Court is justified in interfering with an ultimate sentence - or sector of a decision on sentence - only if it is manifest that the lower Court has been contrary to principle in the process or in the factors taken in to account or if the sentence is manifestly excessive.  See also Kenward v Attorney General [2000] JLR 251, 254-5.

Mitigation

16.      We reject the submissions on behalf of O'Connor that it is unclear what reduction he received in respect of his guilty plea and that the sentencing judge did not properly or adequately take into account the reasons for the late plea.  It seems to us clear from the views expressed by the learned Commissioner at pages 83 and 84 that the only real reason for mitigation was the plea of guilty and his sentence reduced by 25%.  It further seems to us that a late change of counsel will not be an adequate reason for failure to present a plea of guilty earlier, particularly when other co-defendants have already done so. The learned Commissioner was therefore justified in not applying a greater percentage for the guilty plea.  

Smitton

Starting Point

17.      On behalf of Smitton a number of contentions were made in addition to the general points to which we have referred.  First it was contended that insufficient regard had been given to the difference between the nature of the Styles importation, which the Sentencing Court in that case had described as "sophisticated" and involving "professional planning".  We do not discern any logical reason for making such a distinction.  The degree of significance of the crime depends upon the weight of the drugs which gives the band.  An individual's position depends upon the nature of his or her involvement in the importation.  It is of the nature of the matter that all importations and attempted importations will involve a degree of subterfuge and, in our view, it would be invidious to distinguish between them.   In any event, the present matter appears to have involved the purchase of two boats, the carrying out of sea trials, the involvement of some eight individuals and significant numbers of telephone calls and meetings.  We also bear in mind what was said in Campbell, at page 147, as to no distinction being drawn between importation and supply or possession with intent to supply.

18.      In the second place it was contended, by reference to the Styles case, that Smitton's role and involvement in the importation was more analogous to the role and involvement of Carney and Day rather than Styles.  It was noted that, in moving for sentence, the Crown had moved for a starting point of 12 ½ years in respect of O'Connor and 12 years in respect of Smitton.  It was also noted that the Crown had described Smitton as an "assistant organiser". 

19.      In our opinion, this submission fails.  In the first place it has to be noted that, in Styles, the Court of Appeal felt constrained to reduce the starting points for Carney and Day because the Royal Court had recognised (expressly in Day's case, and by implication in that of Carney) that the role played by these two individuals was less than that of Styles: see paragraphs 88 - 92 of the Judgment.  In the present case the learned Commissioner (who was, of course, the same presiding Commissioner as in the case of Styles) did not make such a distinction.  In relation to Smitton he said "You were the organiser of this conspiracy in Jersey and one of those most deeply involved."  It will also be recollected that the learned Commissioner had earlier indicated that the starting point of 12 years should be adopted in the present case "for those most heavily involved".

20.      It seems to us that, upon the basis of the Statement of Facts the Commissioner was entitled to adopt this approach in relation to Smitton.  Smitton was clearly an organiser at some level (paragraph 4).  Over a six week planning period he and Courval, both resident in Jersey spoke to each other almost daily on their mobile telephones apart from the period during which Smitton was in police custody (paragraph 5).  Smitton was involved in a number of early meetings (paragraph 7).  Smitton was O'Connor's point of contact in Jersey, with Courval acting in Smitton's absence (paragraph 14).  Between late October and mid November Smitton called O'Connor regularly and Smitton and Courval spoke nearly every day (paragraph 15).  On 13 November Smitton called Courval twelve times between 1300 hours and 1520 hours (paragraph 24). 

21.      In our view, upon the basis of the Statement of Facts, the learned Commissioner was entitled to treat O'Connor, Smitton and Courval as having had a level of involvement in the importation which was sufficiently comparable to make the same starting point appropriate for each.   

Mitigation

22.      As regards personal mitigation it was contended that insufficient weight had been given to Smitton's circumstances.  We note that the full one-third discount for an early plea of guilty was allowed.  Given his previous convictions for drug related offences, the view of the reporting Probation Officer that there was a high risk of re-offending and, perhaps the fact that the present offence had been committed before expiry of a previous six year sentence, we see no additional grounds for reducing the sentence on grounds of mitigation.   

Heskin

Starting Point

23.      On behalf of Heskin, in addition to the general points with which we have already dealt, it was contended that 11 years as a starting point was manifestly excessive and that the starting point should be no more than 10 ½ years.  By comparison with the case of Styles, it was submitted that Heskin's involvement was less than that of Day and Carney and more akin to that of James. 

24.      In passing sentence the court below indicated that Heskin's function was to move the money for the drugs from Jersey to the United Kingdom, that he was entrusted with large amounts of cash and that he "played an important though possibly not a leading role.".  Upon that basis it reduced the starting point from 12 to 11 years. 

25.      Among other matters it was contended that, by using the words "possibly not a leading role" the Sentencing Court might not have reduced the starting point by a sufficiently significant degree in taking the view that there was only the "possibility" of a non-leading role rather than accepting what was said to be the Crown's case which was not that Mr. Heskin had played a leading role.  We do not consider that there is substance in this suggestion.  The Crown moved for a starting point of 12 ½ years for O'Connor, 12 years for each of Smitton and Courval and 11 years for Heskin.  That starting point was adopted by the Sentencing Court. 

26.      As far as comparison with Messrs. Carney, Day and James in the case of Styles is concerned, we note from the Statement of Facts that Heskin flew to Jersey in September and deposited a significant amount of money.  He stayed in Jersey for six nights, at the end of which he made a further bank deposit and returned to Manchester carrying a significant amount of cash.  In October he stayed in Jersey for eight or nine days making further cash deposits (paragraph 16).  He was again involved in banking money in November (paragraph 27).

27.      In the case of Styles, the Sentencing Court indicated that both Carney and Day were close to the source of supply, took part in the planning of the importation, took part in the air drop and attempt to retrieve the dropped drugs and had also been involved in earlier visits to Jersey (Day) and Rennes (Carney).  James, on the other hand, was identified as "the link between England and Jersey as evidenced by the numerous telephone calls".  He was identified as having been further from the source of supply than those principally involved. 

28.      In our opinion the Sentencing Court was correct to identify Heskin as having played a significant role.  He appears to have been employed for a very individual purpose and to have been required to visit Jersey for significant periods of time on more than one occasion.  His involvement must have been of considerable importance to the potential success of the importation arrangements and, having regard to the various starting points identified for each of the eight participants, it cannot be said that the level set in his regard is manifestly excessive.

Mitigation

29.      Turning to mitigation, it was submitted that, having regard to all the personal circumstances of Heskin, and by comparison with Courval and Le Geyt, Heskin's sentence should have been one of 5 ½ years. 

30.      We have noted the personal circumstances which were before the Sentencing Court, but note particularly that Heskin was one of the three individuals assessed as having a high risk of re-offending.  The others were Smitton and Sandland.  Smitton had pleaded guilty at an early stage whereas Heskin and Sandland pleaded guilty, although not at the first opportunity

31.      In the whole circumstances we have reached the view that, when a comparison is made between the approach of the Sentencing Court to Courval, Le Geyt and Sandland, Heskin's sentence is not one which is manifestly excessive.  There is some similarity between the circumstances of Heskin and Sandland. Both are of similar age, both pleaded guilty, but more than six months after Smitton and Le Geyt had pleaded guilty and both had been assessed as having a high risk of re-offending.  The principal distinction would appear to be that certain of Sandland's previous convictions were for a possession of drugs, although not for supply.  Heskin, on the other hand, had a relatively recent caution for a drug related offence. In the whole circumstances, and having particular regard to the role which Heskin played, we have reached the view, without any hesitation, that there is no indication that Heskin's sentence was manifestly excessive whether viewed on its own or in comparison with any of the other defendants.  

Sandland

Starting Point

32.      Applying the Campbell guidelines, the Royal Court adopted what it referred to as a reduced starting point of 10 years.  This is the minimum applicable under those guidelines, having regard to the quantity and value of the drugs involved unless, as indicated in Rimmer there were exceptional circumstances.  In his written submissions, which show a particular grasp of reasoning together with a clarity of thought, this applicant accepts that the starting point of 10 years was the lowest which the Royal Court could use. 

Mitigation

33.      The sentence imposed by the Royal Court was 5 ½ years and the applicant places particular emphasis on this being merely six months less than that imposed on Le Geyt, whose role in the conspiracy he contends was far greater than was his own. 

34.      We note that the Royal Court intended to have regard to the nature and extent of each individual's involvement when considering the sentence.  As we have said earlier, whilst this Court might be more ready to accept that a different starting point might be appropriate within the existing bands, this Court must be extremely circumspect in determining that a particular case is exceptional when the Royal Court, for whatever reason, has not done so: Styles paragraph 95.  Even more so as regards mitigation.  Once one accepts, as this Court did in Kenward, that the final sentence should be determined, not in a compartmentalised fashion, but by calculating a single discount taking into account all the relevant factors and remembers the inherent discretion which such an approach entails, this Court must again be extremely circumspect in interfering with the decision below.  It is likely that the grounds for doing so will be restricted to rare occasions when either a relevant factor has not been taken into account, an irrelevant factor has been taken into account or where there might be a justified sense of grievance on considering the different results as between individual accused in the same or directly related proceedings.

35.      As regards Sandland, it seems to us appropriate not only to make comparison with the result for Le Geyt but also with those for Boylan and Buchanan. We have already discussed the comparison with Heskin. The respective ages at sentencing were Le Geyt (46), Buchanan (43), Boylan (26), and Sandland (25).  Le Geyt's role was considered the most significant of these four and a starting point of 11 years adopted.  The starting point for Buchanan was reduced to 9 years because of a minor role and late participation.  Both Sandland and Boylan had starting points of 10 years.  For Le Geyt the sentence was 6 years (a discount of approximately 46%).  For Sandland the sentence was 5 ½ years (a discount of approximately 45%).  For Boylan the sentence was 5 years (a discount of 50%).  For Buchanan the sentence was 4 years (a discount of approximately 55%). 

36.      Turning to the individual circumstances, Buchanan had, like Sandland, a drug related history but only one minor relevant previous conviction: for possession of cannabis resin.  In appraising Buchanan's situation, the Royal Court laid emphasis on the fact that his role was relatively minor: as a crewman recruited only at the very last moment.  Whilst he did not plead guilty at the first available opportunity and was described as being of medium risk of re-offending, there were circumstances which the Royal Court categorised as exceptional and which led to the reduction of sentence to 4 years' imprisonment.  This position bears no close comparison with that of Sandland who was identified as having a high risk of re-offending and had been a willing participant for some time and had assisted in carrying out trials of boats, albeit that there was a dispute between the Crown and Sandland as to the level of his participation: see the Statement of Facts paragraph 46.

37.      When the final sentence for Sandland is compared with those for Le Geyt and Boylan and the related percentage discounts, we are not persuaded that it would be proper for this Court to interfere with the decision below.  While Le Geyt had a greater role than Sandland, he had no drugs related previous convictions, had plead guilty at the earliest opportunity and was assessed as being of only a medium risk in re-offending.  Boylan on the other hand, not only had plead guilty at the earliest opportunity, he too had no drugs related previous convictions and was considered to be at a low risk of re-offending.  He had been recruited only on the preceding day and his participation was regarded as having been limited. 

38.      In these whole circumstances the eventual differences between the determinations for these four individuals appears to be of the appropriate order. 

O'Connor - confiscation order

39.      On behalf of O'Connor it was submitted that the Sentencing Court fell into error in failing to apply the criminal standard of proof to the question of whether there was any expenditure, made by O'Connor in the relevant period, which could be amenable to the assumption that it had been met out of payments received in connection with drug trafficking carried on by him.  In particular it was submitted that Article 3(7) of the Drug Trafficking Offences (Jersey) Law 1988, as amended, whilst providing that the civil standard of proof should be used to determine whether a person had benefited from drug trafficking, did not provide that the civil standard should apply to the separate question of whether there had been any expenditure. 

40.      This issue was considered by the Criminal Division of the Court of Appeal in England: R v. Dellaway [2001] 1 Cr. App. R. (S.) 77.  That decision dealt with the co-relative English statutory provisions of the Drug Trafficking Act 1994 (c.37).  Article 3(7) of the 1988 Law is in the same terms as Section 2(8) of the 1994 Act.  Section 4 of the Act is in almost identical terms to Article 5 of the Law with the principal exception that, under the 1994 Act, the court is enjoined to make certain "required assumptions" whereas, under the Law, it is provided that the court may make certain assumptions.  The critical assumption provided for under the 1988 Law and the 1994 Act is again set out in almost the same terms.  Article 5(3)(b) of the Law states:-

"that any expenditure of the defendant since the beginning of that period was met out of payments received by the defendant in connection with drug trafficking carried on by the defendant;"

41.      In Dellaway the Lord Chief Justice, Lord Woolf, delivering the judgment of the Court of Appeal, stated at paragraph 12;

"... in our judgement the judge was right to make the assumption under section (3)(b) ... He had no discretion as to whether to make that assumption under subsection (3)(b) if the facts gave rise to the inference that he had paid at least £28,600.  This is a perfectly proper inference to make, as a matter of common sense, in the case of the appellant.  In relation to a large quantity of drugs of this sort, approaching the matter on the balance of probabilities where there is no alternative credible explanation, the inference is obvious: money would be required to pay for the drugs.  Those who traffic in the drugs trade do not normally extend credit or trust to others involved in a criminal enterprise of this sort."

42.      We too adopt this approach.  Under the Jersey Law, whilst the civil standard of proof is set for a question as to whether a person has benefited from drug trafficking, it seems to us that, depending upon individual circumstances, a question arising under the Law as to that matter will require consideration of a number of matters, some of which may be ancillary and some subsidiary.  The question as to whether or not there was expenditure is ancillary in that it is only when the expenditure has been identified that the assumption may be made.  It is, however, still part of the whole question as to whether or not there has been a benefit from drug trafficking.  Indeed, there seems to us no logic in seeking to apply the criminal standard of proof to the issue as to whether a payment has been made where the assumption which can be taken thereafter may be reached according to the civil standard.  There is no requirement that, in making the expenditure, a criminal offence is also being committed.  All that is required is that there has been expenditure. 

43.      On behalf of Mr. O'Connor it was further submitted that the Sentencing Court ignored or failed to have proper regard to the agreed statement of facts at the Confiscation hearing and thus misdirected itself in regard to whether Mr. O'Connor had incurred expenditure.  On behalf of the Crown, Advocate Fitz has indicated that it was correct that the Crown had agreed to edit the summary to remove the specific references to O'Connor being directly involved in the funding but indicated, further, that there was no evidence to support the assertion of direct involvement to the criminal standard which applied to facts relevant to sentencing.  In Dellaway, cited above, the appellant was one of five persons involved in an alleged conspiracy to supply a Class A controlled drug, of which the appellant and one other person were convicted.  It was considered sufficient by the Sentencing Court and the Court of Appeal that there was a conclusion that the appellant had been the organiser of the importation (see paragraph 10).  Here, too, O'Connor was regarded by the Sentencing Court as the organiser and main director of the offence.  In our view it is therefore a perfectly proper inference to make, as a matter of common sense, and on a balance of probabilities, that O'Connor had participated in the making of expenditure for the purpose of acquiring the drugs.  As the learned Commissioner stated in paragraph 6 of the confiscation judgment of 28 February 2007, there was no evidence before the court to show that the assumption that expenditure had been made was incorrect. 

Conclusions

44.      For all the foregoing reasons we refuse all applicants leave to appeal against sentence.  We also refuse O'Connor's application to invite us to interfere with the Confiscation Order.

Authorities

Customs & Excise (Jersey) Law 1999.

Styles, Day, Carney and De Sousa v AG [2006] JCA095.

Campbell, Molloy and Mackenzie -v- AG [1995] JLR 136.

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

Clarkin -v- AG [1991] JLR 213.

Kenward v Attorney General [2000] JLR 251.

Drug Trafficking Offences (Jersey) Law 1988.

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

Drug Trafficking Act 1994.