Jersey Unreported Judgments

[2007]JRC160

ROYAL COURT

(Samedi Division)

21st August 2007

The Attorney General

-v-

Artur Weislaw Papis

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 28th June, 2007, following a guilty plea to:

Age:  29

Plea: Guilty.

Details of Offence:

Papis was stopped and questioned by Customs Officers having arrived off the Condor Ferry from St Malo.  He had driven from Poland in his Polish registered vehicle.  Within the vehicle was a basket containing a number of glass jars filled with what appeared to be a red coloured soup.  The soup contained cabbage leaf wrapped packages and upon examination a number of the packages were found to contain brown sausage shaped taped packaging containing mottle blue coloured tablets.  A total of 31 packages were found in the seized jars.  The tablets were analysed and the average tablet weight was 266 milligrams.  The collective weight indicated a total of 10,267 tablets with an average content of 38 milligrams of MDMA per tablet.  The wholesale value of this quantity of tablets was between £61,602 and £82,138.  The street value was between £82,138 and £102,670.

The Defendant was interviewed under caution and made admissions that he had been threatened by "bad people" in Poland who threatened to kidnap his daughter if he did not import the drugs.  He did not specifically know that they were drugs but knew that these people were involved in drugs and thought that the drugs might be steroids which he thought would be illegal.  He denied using illegal drugs himself.

In terms of the "starting point" Papis has imported approximately twice as many Ecstasy tablets as the highest band in Bonnar -v- Attorney General  Giving due weight to the level of involvement in the trafficking of drugs i.e. Papis was a mere courier, the Crown took a "starting point" of 15 years' imprisonment.

Details of Mitigation:

The Crown had regard to the guilty plea which had been entered whilst the case was still before the Magistrate's Court.  There was, however, a degree of inevitability about the guilty plea and in the Crown's view he was not deserving of a full one-third reduction.  Being aged 29 he did not have residual credit for youth but he was deserving of credit for the fact that he was a man of prior good character and had been co-operative with the Customs Officers.  The case had a convoluted procedural history because initially medical evidence had been produced by the Defendant suggesting that he was still suffering from Cancer and that his prognosis was poor.  At the Court's insistence the sentencing hearing was delayed so that up to date medical evidence, could be obtained.  This was obtained and contrary to the initial medical evidence the up to date evidence was to the effect that he had made a good recovery from the disease and that the prognosis was good and he could be released from further medical care.  The Crown's Conclusions, therefore, reflected this fact.  The Crown did not regard as mitigation that Papis had been involved because of threats nor that he was mistaken as to the nature of the drugs that had been imported.  The Crown had made an additional allowance to take account of any prejudice or unfairness felt by the Defendant because a far lesser sentence had previously been moved for than that was actually moved for at the ultimate sentencing hearing due to the change in the medical evidence.

The Defence contended that the "starting point" was too high and that too much emphasis had been placed upon the quantity of drugs imported rather than his role which was that of a simple courier.  The fact that he was a man of previous good character was emphasised and various references from various individuals were handed up.  The Defence suggested that the "starting point" should not exceed 14 years.  The Defence contended that his guilty plea warranted a full one-third deduction.  The Social Enquiry Report referred to him as being at moderate risk of re-offending.  The family back in Poland were adversely affected by the absence of the Defendant.  The family were already in financial difficulties prior to the commission of the offence.  There were difficulties in his imprisonment in terms of language difficulties etc. and little contact with the family.  At the time of the prior sentencing hearing he was not aware that his medical condition had improved.  An appropriate sentence was suggested as being one of 6 years.

Previous Convictions:

None.

Conclusions:

Starting point 15 years.

Reduction of 7 years off the starting point making a sentence of 8 years with a further reduction of 6 months.

Forfeiture and destruction of drugs sought.

The Crown also sought a recommendation for deportation from the Royal Court to the Lieutenant Governor that the Defendant be deported at the end of the prison sentence.  The Crown's contention was that this was an appropriate case for such a recommendation and it was not opposed by the Defendant.

Sentence and Observations of Court:

Starting point 15 years.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

The Defendant is a Polish National aged 29 who has imported a large number of Ecstasy tablets which had been concealed within jars of soup.  A total of 31 packages had been found containing 10,266 Ecstasy tablets.  Initially, the Defendant denied any knowledge but then admitted that he had been involved through threats from "bad men".  The Court noted the wholesale and street value of this quantity of tablets.  There had been an early guilty plea when the matter was still in the Magistrate's Court.  He was married with an 8 year old daughter.  The Court had noted the letters written and in particular the wife's letter.  Papis had no previous convictions.  He had suffered a serious cancer but the medical evidence was now that complete remission had been achieved.  The court noted the guideline case of Bonnar and the other authorities relied upon and agreed that the Crown's "starting point" of 15 years was the appropriate one.

In mitigation, he was a good worker and had pleaded guilty.  The court had read the letters and had noted the contents of the Social Enquiry Report.  Because of the exceptional circumstances the Court felt able to reduce the Crown's Conclusions.

The Court requested that the Jersey authorities notify the Polish authorities of the Royal Court's severe sentencing policy in drug cases so that those Polish Nationals who were intending to travel to Jersey and who might be involved in the importation of drugs were aware of that policy.

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

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        On 6^th November, 2006, the Defendant, who was 29 years of age, smuggled into the island a large number of ecstasy tablets.  The Defendant is a Polish national who arrived by ferry from St Malo in his Polish registered Renault Clio.  A search of his car revealed a basket containing a number of glass jars filled with what appeared to be a red coloured soup.  The jars were x-rayed, which was inconclusive, but submerged in the soup the officers could see a number of cabbage leaf wrapped packages.  A total of 31 such packages were found containing 10,267 ecstasy tablets.

2.        Initially the Defendant denied any knowledge of the drugs hidden in the jars, but towards the end of the interview he said he had been made to come to Jersey by bad men who would kidnap his daughter if he did not.  He knew they were involved in drugs and suspected the drugs might be steroids.

3.        The wholesale value of the tablets is estimated to be in the region of £61,000 - £81,000, and the retail value between £82,000 and £102,000.

4.        Initially the Defendant reserved his plea, but on 20^th December, 2006, he pleaded guilty before the Magistrate and the case was remanded to the Royal Court.

5.        The Defendant married his girlfriend when he was 21 and they have an eight year old daughter.  His wife works in the tax office in Warsaw and she has written seeking clemency for her husband.  He has suffered serious cancer for which he was treated in 2002.  Two tumours, one extremely large, were discovered in his abdominal cavity, one measuring 3 x 2 x 8 cm and the other 20 x 10 x 12 cm.  These were removed along with 35 cm of his small intestine.  Subsequently a right orchidectomy was performed and he received chemotherapy.  Following this he received a bone marrow transplant and further chemotherapy.  After further complications and more chemotherapy complete remission was achieved.  From that time he has received regular follow up checks.

6.        The Crown have referred to the case of Bonnar and Noon v AG [2001] JLR 626 which sets out the sentencing guidelines for cases involving the trafficking of Class A drugs in tablet form.  The highest band for cases involving 5,500 tablets or over is 14 years and upwards.  As the Court of Appeal made clear in Andrews v AG [2006] JCA 099, there must be a tapering off as amounts increase, if sentences are not to become unduly harsh for what the offender has actually done and having regard to the Defendant's known level of involvement, i.e. as a courier, as well as the quantity involved, the Crown has taken a starting point of 15 years, which we accept as correct.

7.        In terms of mitigation the Defendant is of good character.  He did plead guilty.  We have read very carefully the letters from his wife and friends.  We have looked at the reports and considered their contents and because of the exceptional medical history this Court feels able to reduce the conclusions of the Crown.

8.        You are sentenced to 6 years' imprisonment.

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

10.      We would also ask the authorities in Jersey to inform the Polish authorities of the severe sentencing policies of this Court for those involved in the importation of drugs into this Island in order that people in Poland can be warned as to what will face them if they get involved in the importation of drugs into Jersey.

11.      We turn now to the issue of deportation.  We have been referred to the case of R v Nazari [1980] 3 All ER 880 and the two tests which have to be applied.  The Defendant has no connection with the island and is described in the Probation Report as being at moderate risk of re-offending.  We have concluded that his continued presence in the island would be detrimental.  His deportation furthermore would have no detrimental effect on innocent persons; indeed he wishes to return to Poland, as does his wife, so his family will suffer no further hardship if he were to be returned there.  We therefore recommend to the Governor that the Defendant be deported at the end of his prison sentence.

Authorities

Bonnar and Noon v AG [2001] JLR 626.

Andrews v AG [2006] JCA 099.

R v Nazari [1980] 3 All ER 880.