Jersey Unreported Judgments

[2007]JRC133

ROYAL COURT

(Samedi Division)

6^th July 2007

Before     :

J.A. Clyde-Smith, Esq., Commissioner, and Jurats de Veulle and Newcombe.

The Attorney General

-v-

Robert Pawel Niedzwiecki

Sebastian Szmigielski

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to:

Robert Pawel Niedzwiecki

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) 1999.

Age:  21.

Plea: Guilty.

Details of Offence:

Niedzwiecki was stopped and questioned by Customs Officers having arrived off the Condor Fast Ferry from St Malo.  Within one of his holdalls identified by him were 4 jars of what purportedly contained homemade soup.  An x-ray of the jars was undertaken and it was suspected that the objects within the soup contained controlled drugs.  The jars were not opened and they were returned to his baggage.  He was then allowed to leave but was put under surveillance.  He was subsequently stopped by Customs Officers but initially ran away and was arrested.  Within the baggage then found with him the 4 jars of soup were noted to have gone missing.  They were subsequently found nearby hidden under a staircase.  The holdall in which they were originally located was also found in a different location nearby.  Niedzwiecki was arrested.  The 4 jars were examined and were found to contain rolled up cabbage leaves.  In some of the leaves there was a meat mix but a number of the other cabbage packages contained a paste and others contained tablets all contained within latex condoms.  A total of 15 packages were discovered.  The packages were found to contain 302.57 grams of white putty like material which was shown to contain Amphetamine Sulphate with an average content of 9% by weight.  There were then the 12 packages of red tablets containing a total of 2,765 tablets which were also shown to contain Amphetamine Sulphate with an average content of 2% by weight.  The expert evidence available in terms of the valuation for this consignment was that the tablets and powder had a street value of between £30,000 and £35,000 and a wholesale value of between £19,651 and £22,641.  Niedzwiecki, when interviewed, stated that he was unaware that he was bringing drugs into Jersey.  He had been given the blue holdall which contained the soup jars by a male who had arranged his travel to Jersey and who had also arranged for a job on his arrival.  He was due to be met by an unknown male once he had left the Ferry Terminal.  He claimed he had only seen the jars for the first time when the bag was opened by Customs Officers and that whilst he was then suspicious he was afraid to tell the Officers of his suspicions.

A mobile phone was seized from him and it was subject to examination.

Starting Points - The Crown in reliance upon the guidelines produced in Campbell v AG (1995) JLR136, and having regard to the street value of the Amphetamine Sulphate and the respective roles of the two Defendants took a starting point of 3 years for Niedzwiecki.  The starting points were not opposed by the Defence and were approved by the Court.

Details of Mitigation:

The Crown identified that Niedzwiecki had the benefit of youth, being aged 20 when the offence was committed.  He had also entered a guilty plea at an early occasion.  He was a first offender and of previous good character.  The Social Enquiry Report referred to him as having had a hard and traumatic upbringing.  The motivation for the offence was to get some money (£300) to pay for his mother's operation.  He had the benefit of remorse.  He was assessed as being at low risk of re-offending.

Defence Counsel emphasised the matters of mitigation as identified by the Crown and contended that there was insufficient disparity between the Conclusions moved for by the Crown between the two Defendants given their lesser roles and the available mitigation.

Seven principle areas of mitigation were identified, namely: youth, first offender, early guilty plea, admissions in interview, remorse, content of background reports, character references and difficulties in Prison due to his inability to speak English etc.  The Defence sought a sentence which would allow his immediate release.

Previous Convictions:

None - confirmation from the Police Ministry of Justice was obtained to that effect.

Conclusions:

Count 1:

18 months' imprisonment.

Forfeiture and destruction of the drugs is sought.

Deportation order sought.

Sentence of the Court:

Count 1:

15 months and 17 days' imprisonment.

 

Sebastian Szmigielski

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) 1999.

Age:  29.

Plea: Guilty.

Details of Offence:

He was observed to be outside the Ferry Terminal and was seen walking up and down using his mobile phone.  He was subsequently arrested at his home address.  A number of items including £2,238 in cash was seized together with mobile phones and SIM cards etc.  He denied any involvement in the importation of drugs by Niedzwiecki.  He claimed that he had been in the harbour area that morning so as to meet a male to discuss work.  He was released pending further enquiries.  The forensic analysis of the various mobile phones revealed that Szmigielski had been in contact with somebody by the name of "Faktor".  Szmigielski had received a text message containing the name and address of Niedzwiecki.  A listing for "Faktor" was also found in Niedzwiecki's mobile phone.  Szmigielski had received a number of text messages on the day that Niedzwiecki had arrived in Jersey from "Faktor".  The forensic analysis of the mobile phones also revealed the apparent movement of money between Szmigielski and "Faktor".  Following the forensic analysis Szmigielski was once again arrested but in interview he maintained his denial of any involvement.

Starting Points - The Crown in reliance upon the guidelines produced in Campbell v AG (1995) JLR136, and having regard to the street value of the Amphetamine Sulphate and the respective roles of the two Defendants took a starting point of 4 years for Niedzwiecki.  The starting points were not opposed by the Defence and were approved by the Court.

Details of Mitigation:

The Crown contended that he was aged 29 and whilst he did not have residual credit for youth, he had pleaded guilty and was a first offender of previous good character.  He had also expressed remorse and was assessed at being low risk of re-offending.

Defence Counsel contended that he had never used drugs in Jersey and had become involved because he had become indebted to a man "Faktor" who he met in Jersey.  His reward for helping was that he would be given work on a building site.  He had done charitable work at home.  Defence Counsel suggested a sentence of 20 months imprisonment.  The deportation request was opposed on the basis of the detrimental affect to his sister and fiancée.  Because of an earlier incident in Poland, the fiancée did not wish to return to Poland.

Previous Convictions:

None - confirmation from the Polish Ministry for Justice was obtained to that effect.

Conclusions:

Count 1:

2 years' imprisonment.

Confiscation Order £2,238 sought.

Forfeiture and destruction of the drugs is sought.

Deportation order sought.

Sentence of the Court:

Count 1:

2 years' imprisonment.

Confiscation Order £2,238 made.

Observations of the Court:

Defendants pleaded guilty to importing Amphetamine Sulphate with a street value of between £30,000 and £35,000.  Niedzwiecki was aged 20 and was the courier and Szmigielski a facilitator.  The Court then summarised the facts surrounding the arrest of the two Defendants.  Guidelines in Campbell suggested a starting point of between 2 and 6 years for values of between £5,600 and £56,000.  The street value here was between £30,000 and £35,000.  Making allowance for the different roles played, the Crown suggested a starting point of 3 years for Niedzwiecki and 4 years for Szmigielski.  The starting points were accepted by the Defence and the Court also accepted them.

Niedzwiecki was aged 20 and had the benefit of youth, good character and guilty pleas.  He was desperate for money, being the motivation for his involvement, and had genuine remorse.

Szmigielski had pleaded guilty, was of previous good character and had expressed genuine remorse.  He was at low risk of re-offending.

The Crown moved for 18 months imprisonment fro Niedzwiecki and 2 years for Szmigielski.  The court was minded to agree with the Defence submission that insufficient allowance had been made for the mitigation for Niedzwiecki and the Court, therefore, imposed the following sentences:

Niedzwiecki - 15 months, 17 days imprisonment.

Szmigielski - 2 years' imprisonment.

The Court ordered the forfeiture and destruction of the drugs.

On the issue of the recommendation of deportation, this was not opposed by Niedzwiecki and the Court confirmed that his presence in Jersey was to the Island's detriment and no innocent persons would be affected by his deportation.  The recommendation was made.  In relation to Szmigielski the recommendation had been opposed.  The Court was satisfied that the first test to be applied was satisfied, in that the offence of the importation of Class B drugs was to the detriment of the island.  However, the Court was not satisfied that the second test was fulfilled and it considered that the effect of the deportation on the sister and fiancée was such that they would not recommend deportation for him.

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

Advocate L. Richardson for Niedzwiecki.

Advocate J. Grace for Szmigielski.

JUDGMENT

THE commissioner:

1.        These defendants have pleaded guilty to importing amphetamine tablets and powder with a street value of between £30,000 and £35,000.  Niedzwiecki was the courier and Szmigielski was the facilitator. 

2.        Niedzwiecki arrived on the morning of 24^th August 2006 off the Condor fast ferry from St Malo.  A search of one of his bags, a blue holdall, revealed four jars which the Customs Officers suspected contained controlled drugs.

3.        He was allowed to proceed but was put under covert surveillance.  After losing sight of him, temporarily, he was approached near West Park by two officers and ran away dropping his bags but not the blue holdall.  A search of the area revealed the jars hidden under a metal staircase and the blue holdall was recovered with the assistance of a police dog.

4.        Initially Niedzwiecki said he was unaware that he was carrying drugs and that he had been given the holdall by a male who had arranged his travel and a job on arrival.  He later made admissions and was charged with being knowingly concerned in this importation. 

5.        Szmigielski, who is 29, and who had been seen that morning parked at Maritime House and walking up and down using his mobile, initially denied knowing Niedzwiecki or having any involvement.

6.        After analysis of the mobile phones and SIM cards which had been seized, which involved incidentally a Commission Rogatoire to the Polish authorities, Szmigielski was charged although he still denied any involvement.  However, in due course both defendants, pleaded guilty before the Magistrate's Court where their cases were remanded to the Royal Court for sentencing.

7.        Sentencing has been delayed by issues over the factual basis of the sentencing and the fixing of a Newton hearing, but these issues have now been resolved.

8.        A 2 to 6 years' starting point is the guideline laid down in Campbell v AG [1995] JLR 136, where the street value of this type of drug is between £5,600 and £56,000.  The street value on this occasion of the drugs imported, as I have said, was between £30,000 and £35,000 and allowing for the differences in the level of the defendants' involvement the Crown have moved for starting points for Niedzwiecki of 3 years and Szmigielski of 4 years.  These starting points are accepted by defence counsel and we also adopt them.

9.        The Crown has moved for sentences of 18 months' imprisonment for Niedzwiecki and 2 years' imprisonment for Szmigielski.

10.      In terms of mitigation Niedzwiecki was 20 (now aged 21) and has the benefit of youth.  He is a person of good character and has pleaded guilty, although that plea was somewhat inevitable.  He became involved because of a desperate need for money to assist with his mother who is ill and he was going to be paid £320 when he returned, equivalent to three months wages.  He has genuine remorse for what he has done and is assessed at being at a low risk of re-offending.  He has served 316 days on remand which is equivalent to a custodial sentence of 15 months and 17 days assuming good behaviour.

11.      Szmigielski has pleaded guilty.  He is also a man of good character, has expressed genuine remorse and has been assessed as being at a low risk of re-offending. 

12.      We have taken into account all of the mitigation put forward to us and in particular the references and we accept the submission of Counsel for Niedzwiecki that not enough allowance has been made for the mitigation for him.

13.      Niedzwiecki you are sentenced to 15 months and 17 days' imprisonment. 

14.      Szmigielski you are sentenced to 2 years' imprisonment.

15.      We order the forfeiture and destruction of the drugs.

16.      Turning now to the issue of deportation and the case of Niedzwiecki first.  The application of the Crown is not opposed.  We are satisfied that in his case his continued presence in the Island is to its detriment, and that in the terms of the second test in Nazari there are no innocent persons who would be adversely affected and therefore we will recommend his deportation.

17.      Turning to Mr Szmigielski he has opposed the recommendation for a deportation order.  As for the first test in Nazari, in our view, it is satisfied.  This was importation of a Class B drug which is a great menace in this Island and we have no doubt his continued presence in the Island is to its detriment.  Turning to the second test, namely the effect on innocent persons, we have considered very carefully the position of his sister with whom he is very close, and his finance who has suffered grievously in a manner which I need not reveal in open court and we have come to the conclusion that those persons would be adversely affected by his deportation and, therefore our conclusion is that we are not going to recommend his deportation.

Authorities

Campbell v AG [1995] JLR 136.

R v Nazari [1980] 2 Cr App. R (S) 84.