Jersey Unreported Judgments

[2007]JRC242

ROYAL COURT

(Samedi Division)

17^th December 2007

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats de Veulle, Bullen, Le Breton, Allo and Le Cornu.

The Attorney General

-v-

Richard McCann

Bruce Gallichan

Leon George Gocoul

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 12^th October, 2007, on a charge of:

Richard McCann

1 count of:

Conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999.  (Count 1).

Age:  38.

Plea: Not guilty - found guilty at Assize Trial 11^th October, 2007.

Details of Offence:

Importation of 268 grams of cocaine with Jersey street value of £20-22,000.  Smuggled in an ornamental frame made and posted by Gocoul and sent to Gallichan's address.  McCann was the central coordinating figure.  Gocoul hid and sent the drugs, Gallichan provided the safe address.

Details of Mitigation:

Of good character, but did not have the benefit of a guilty plea.  He also has young children within a stable relationship.

Previous Convictions:

Minor previous convictions but treated as of good character.

Conclusions:

Starting point 13 years' imprisonment.

Count 1:

11 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Starting point 11 years' imprisonment.

Count 1:

8 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Leon George Gocoul

1 count of:

Conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999.  (Count 1).

Age:  28.

Plea: Guilty.

Details of Offence:

See McCann above.

Details of Mitigation:

Pleaded guilty from the earliest stage and had no previous drugs convictions.  Has young children within a stable relationship.

Previous Convictions:

Minor previous convictions but treated as of good character.

Conclusions:

Starting point 12 years' imprisonment.

Count 1:

6 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Starting point 11 years' imprisonment.

Count 1:

5 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Bruce Gallichan

1 count of:

Conspiracy to contravene Article 61 of the Customs and Excise (Jersey) Law 1999.  (Count 1).

Age:  54.

Plea: Guilty.

Details of Offence:

See McCann above.

Details of Mitigation:

Pleaded on the basis of having been duped into the conspiracy, coming late to it, but proceeding nevertheless.  He informed against his co-accused and pleaded guilty.   

Previous Convictions:

Minor previous convictions but treated as of good character.

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

3 years' imprisonment.

Forfeiture and destruction of drugs sought.

Seeks an order that Gallichan be ordered to pay the costs of trial.

Sentence and Observations of Court:

Starting point 10 years' imprisonment.

Count 1:

240 hours' Community Service or 18 months' imprisonment in default (exceptional case because of informing and giving evidence).

Forfeiture and destruction of drugs ordered.

No order for costs.

C. E. Whelan, Esq., Crown Advocate.

Advocate M. H. Temple for McCann.

Advocate G. S. Robinson for Gocoul.

Advocate D. E. Le Cornu for Gallichan.

JUDGMENT

THE commissioner:

1.        Two defendants in this case have pleaded guilty, and the third was found guilty by a jury, to conspiring to import 268.73 grams, or 9.5 ozs, of cocaine with a street value of between £20,000 to 22,000.  These drugs were procured by Leon Gocoul and concealed within a moulded plaster frame which was boxed and shipped from Surrey to the home of Bruce Gallichan addressed to a fictitious Mr Vincent.  Bruce Gallichan accepted and signed for the parcel.  He immediately phoned Richard McCann and informed him of the arrival of the box.  Richard McCann attended at his house where they discussed the box.  They continued their discussion outside and were arrested.

2.        Leon Gocoul has pleaded guilty from the outset.  Bruce Gallichan and Richard McCann pleaded not guilty and their trial was due to take place on 9^th July, 2007.  On 6^th July Bruce Gallichan changed his plea on the basis of a statement that was accepted by the Crown.  Richard McCann was found guilty by the unanimous verdict of a jury following a 3½ day trial at which Bruce Gallichan gave evidence for the Prosecution. 

3.        The drugs had been financed by £4,000 drawn from Bruce Gallichan's bank account.  He had issued a cheque in that amount but left the amount and the name of the payee blank.  In a different hand the cheque was made payable to Leon Gocoul and paid into his account in Jersey.  The same amount was drawn out in cash by him in England on the 8^th July.  The cocaine was sent from England on the 1^st August.  The lower of its price in the UK has been assessed at £3,800.

4.        The Crown's case in relation to the three defendants is as follows.  Taking Richard McCann first, the Crown regards him as the central figure. He had two mobile phones, one of which was used to contact and text Leon Gocoul and the other to contact Bruce Gallichan.  From one side he is seen repeatedly prompting Leon Gocoul to get on with the posting of the cocaine, and on the other hand he is immediately implicated in its reception in Jersey.  There is no evidence of any telephone communication between Bruce Gallichan and Leon Gocoul.  In the Crown's view Richard McCann was the central coordinating figure.  Bruce Gallichan gave evidence at the trial that it was Richard McCann to whom he gave the cheque for £4,000.  Richard McCann and Leon Gocoul deny this.  They say Bruce Gallichan gave the cheque directly to Leon Gocoul.  The Crown do not rely on either account for its characterisation of Richard McCann as the central coordinating figure.

5.        Turning to Leon Gocoul, it was he who procured the drugs and used his skill to cause it to be hidden in a moulded plaster frame.  He then arranged to have the moulded frame boxed and shipped to Jersey.  In the Crown's view he must be taken to occupy a position somewhat above a bare courier.

6.        The statement of Bruce Gallichan, which formed the basis of his guilty plea, is that he provided the cheque for £4,000 to Richard McCann by way of a loan as he was short of money and expecting a child.  It was only subsequently that Richard McCann asked him to accept a parcel for security reasons as he lived in a block of communal flats where there would be no security for post.  It was later still that Richard McCann told Bruce Gallichan that the parcel contained cocaine and that Bruce Gallichan was already involved because it was his cheque that had been used to pay for the drugs.  In those circumstances Bruce Gallichan felt unable to withdraw.  He expected the packaged to arrive and quickly be taken away.  His dealings had been with Richard McCann and he knew Leon Gocoul only by sight.  Of the three defendants the Crown regard the role of Bruce Gallichan as the most passive.

7.        We now turn to starting points.  The guidelines set out in Rimmer, Lusk and Bade v AG [2001] JLR 373, give a starting point band of 11-14 years' for the weight band of 250-400 grams.  The weight of course is not the only factor; account has to be taken of the nature and level of the involvement of each defendant. 

8.        Because of the organising and coordinating role of Richard McCann the Crown take a starting point for him of 13 years.  Because of the significantly active role of Leon Gocoul they take a starting point of 12 years in his case.  Although Bruce Gallichan's role was essentially passive and adopted late in the day, it was nevertheless important to the potential success of the plan and the Crown take a starting point of 11 years in his case.

9.        The Crown regard Richard McCann as being of good character, but he does not have the benefit of a guilty plea.  His family circumstances cannot be regarded as exceptional and the Crown therefore moved for a sentence of 11 years in his case.

10.      Leon Gocoul does have a record but it is not extensive and there are no previous convictions involving controlled drugs.  His family circumstances cannot be regarded as exceptional and the Crown regard his early guilty plea as the most significant mitigation available to him.  The Crown moves for a sentence of 6 years in his case.

11.      Bruce Gallichan is a person of good character and although his guilty plea was late it was important in the context of a conspiracy case.  He gave information to the police about the part played by Richard McCann and gave evidence for the Crown at the trial.  In his case the Crown move for a sentence of 3 years and an order for costs.

12.      We find it very difficult to distinguish between Richard McCann and Leon Gocoul in terms of their involvement in this matter.  It is correct, as the Crown says, that Richard McCann was coordinating between Leon Gocoul and Bruce Gallichan, but on the other hand the funds which were used to purchase the cocaine were withdrawn in cash in the UK by Leon Gocoul and it seems absolutely clear to us that he procured the cocaine in the UK as well as disguising it so skilfully in the frame.  Furthermore we accept both Defence counsels' submission that the weight of the drugs involved is only just above the Rimmer band of 250-400.  Accordingly we set the starting points for both Richard McCann and Leon Gocoul at 11 years.  In relation to Bruce Gallichan we have noted the facts upon which he has pleaded guilty and which have been accepted by the Crown and, without repeating those facts here, regard this as one of those exceptional cases in which we can depart from the band.  In our view the correct starting point for Bruce Gallichan is 10 years.

13.      In terms of mitigation and before we deal with each defendant individually, we wish to respond to the very powerful pleas put to us, in particular in relation to Richard McCann and Leon Gocoul, on the devastating effect a sentence of imprisonment will have on their young families.  We have great sympathy for their families and can understand how such sentences will impact upon them.  However, as the Court has made clear on many, many occasions before, such consequences cannot be something that we can take into account as they are, sadly, not exceptional.  It is tragically so often the case that the sentences the Court imposes will have such consequences on the families and dependants of the defendants.  The defendants should have thought of this before they embarked upon this conspiracy.  Furthermore we have to bear in mind the havoc that can be reeked on the lives of the many drug abusers and their families and other innocent persons in this island to whom these drugs would have been supplied. 

14.      Overarching this case is the fact that the Court finds itself not dealing with drug abusers drawn in to this evil trade in order to finance their habit.  In this case we have three individuals who are not drug abusers, one is relatively wealthy, the others had gainful employment and stable families.  None had financial difficulties let alone drug induced financial difficulties.  There can only have been one motive for their involvement, greed; the huge profit that they stood to make by importing and selling cocaine. 

15.      Richard McCann does not have the benefit of a guilty plea, but he does have the benefit of a good character.  We have considered carefully the submissions of Mr Temple, all the letters and references put before us and considered the background report and, taking all of these into account, have concluded that he should be sentenced to 8 years' imprisonment.

16.      Leon Gocoul has the benefit of an early plea of guilty.  As the Crown says, his record is not entirely to his credit, but account has been taken of the fact that it is not extensive and there are no previous convictions for involvement in controlled drugs.  We have carefully considered the submissions of Mrs Robinson, the letters, references and the background report and taking all of this into account we conclude that the appropriate sentence is one of 5 years' imprisonment.

17.      Bruce Gallichan has a clean record and pleaded guilty, albeit on the eve of his trial; even so the Crown have made it clear that in the context of a conspiracy trial this plea was important simplifying the trial and saving public time and money.  The Crown have accepted that he played a lesser and more passive role, but there is further mitigation which, in our view, enables us to deal with Bruce Gallichan on a wholly exceptional basis, and this is the fact that not only did he make a statement to the police giving them information about the role played by Richard McCann, but he had the undoubted courage, in the face of threats, to give evidence at the trial and this in open Court.  Whilst accepting that threats were made for the purpose of sentencing Bruce Gallichan, we wish to make it clear that the other defendants have denied any involvement in such threats and we have not taken that into account at all in determining their own sentences. 

18.      The Court wishes to make it clear that those who are prepared to act in this courageous way, exposing themselves and their families to the risk of harm, will be rewarded by the Courts because it is by such actions that this evil trade can be combated.  We conclude therefore that taking into account not only the general mitigation available to Bruce Gallichan and the very exceptional references that were presented on his behalf, and what we regard as his courageous decision to give evidence against Richard McCann at the trial, we are going to spare him imprisonment. 

19.      Richard McCann you are sentenced to 8 years' imprisonment.

20.      Leon Gocoul you are sentenced to 5 years' imprisonment.

21.      Bruce Gallichan you are sentenced to serve 240 hours' Community Service which is the equivalent of a sentence of 18 months' imprisonment.  You are very fortunate that the new law which allows us to impose a far greater number of hours has not yet been brought into force as we might have been inclined to impose a higher sentence of Community Service upon you.

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

23.      No order for costs is to be made.

Authorities

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