Jersey Unreported Judgments

[2008]JRC027

ROYAL COURT

(Samedi Division)

21^st February 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Brocq, Bullen, Le Breton, Le Cornu, Morgan and Newcombe.

The Attorney General

-v-

Serge Peacock

James Andrew Harris

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 1^st February, 2008, on the following charges:

Serge Peacock

First Indictment

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) Law 1999.  (Count 1).
1 count of:	Assisting in Jersey in the commission outside Jersey of an offence punishable under a Law enforced in the United Kingdom corresponding to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978, providing for the production and supply in the United Kingdom of a controlled drug, contrary to Article 21(5) of the Misuse of Drugs (Jersey) Law 1978. (Count 2).

Second Indictment

1 count of:

Conspiracy to contravene Article 29 of the Drug Trafficking Offences (Jersey) Law 1988. (Count 1).

Age:  28.

Plea: Guilty (First Indictment - Count 2 and Second Indictment - Count 1).  Not guilty (First Indictment - Count 1, plea accepted, count to stay on file).

Details of Offence:

The chronology of the offending was that the matter which gave rise to count 1 on the Second Indictment against Peacock occurred first whilst he was in prison in March 2006.  Peacock orchestrated and organised the exportation of approximately £100,000 of drug trafficking money.  His sister and brother-in-law were involved in that they were to take the drugs money out of Jersey.  They were stopped leaving Jersey at the Harbour and at the time approximately £100,000 was found in various bundles in various places within their vehicle/luggage.  They were both prosecuted and pleaded guilty to offences under Article 30(2)(a) of the Drug Trafficking Offences (Jersey) Law 1988 - see AG -v- Fowler and Fowler [2006] JRC 175 and Fowler -v-AG [2007] JRC 044.  The evidence linking Peacock to this exportation was located following a forensic analysis of mobile phones seized which revealed not only telephone contact but text messages passing between Peacock and his sister in relation to the collection and intended exportation of the monies.

The counts against Peacock and Harris on the First Indictment arose following Peacock's release from Prison.  Evidence was gathered via surveillance, forensic analysis of the telephones and the discovery of 1 kilo of cocaine buried in a playing field in the United Kingdom.  The Crown's analysis of this evidence gave rise to Peacock and Harris being charged with the offence of conspiracy to fraudulently evade the prohibition on the importation of a controlled drug on the basis that it was the Crown's view that the defendants intended to import this quantity of Class A drug into Jersey.  However, following Indictment and the entering of not guilty pleas via Counsel a factual basis was put forward by the defendants which supported the not guilty pleas but confirmed that the defendants had committed the offence which became count 2 on the Indictment.  It was the defendants' position that whilst in the United Kingdom, for an innocent purpose, Peacock had been contacted by a friend requesting him to supply 1 kilo of cocaine.  Whilst in the United Kingdom Peacock was able to source 500 grams of cocaine which was then bulked out to make 1 kilo.  The purchase price for the 500 grams was £10,000 and it was proposed that the kilo of cocaine would be sold to Peacock's friend for the sum of £25,000 which figure was entirely consistent with the Crown's expert evidence on the wholesale value of a kilo of cocaine in the United Kingdom.  The defendants, therefore, had no intention of importing a kilo of cocaine but rather simply of bringing into Jersey the proceeds of the transaction I e £25,000.  Because the purchaser did not have the monies available Peacock had buried the kilo of cocaine in a field.  Harris had subsequently gone over to the United Kingdom with a view to locating the cocaine and handing it onto the purchaser and returning to Jersey with the purchase price.  In the event he was unable to locate the cocaine and returned to Jersey empty handed.  The Police subsequently located the cocaine and upon forensic analysis Harris' fingerprints were found on some of the packaging and Peacock's DNA on other parts of the packaging.  The Crown accepted the above as being the factual basis for the guilty pleas and for sentencing of the defendants.

In terms of the approach to sentencing the Crown contended that the Rimmer guidelines were not appropriate.  Reference was made to the case of AG v Reynolds (2000/160) in which the maximum statutory sentence of 14 years imprisonment had been taken as the starting point.  The Crown suggested a starting point in the case of Peacock and Harris of 12 years imprisonment. 

In relation to the Article 29 Drug Trafficking Offences (Jersey) Law 1988 offence, once again, it was the Crown's contention that the Rimmer guidelines did not apply nor for that matter did the Campbell guidelines.  Reference was made to the case Fowler v AG in which a "starting point" of 4 ½ years imprisonment had been taken.  The Crown categorised the involvement of Fowler as akin to that of a courier whilst Peacock was categorised as the orchestrator and organiser thereby justifying a higher starting point.  The Crown took as its starting point a sentence of 6 years imprisonment. 

Details of Mitigation:

 The Crown viewed the major mitigating factor as being his guilty pleas.  However, it was the Crown's view that the production of the factual basis for the guilty plea for the Article 21(5) offence was not akin to "writing his own Indictment".  The factual basis had only been  put forward after full disclosure of the Crown's evidence had been provided.  The phrase "writing one's own Indictment" was only applicable where a defendant provided evidence of his involvement in a criminal offence which is unbeknown to the Prosecution and in circumstances where, without such information, no criminal charges could have been brought.  The Crown, however, gave a full one third deduction to Peacock for his guilty plea.  The Crown also noted his expression of remorse, his decision to change his life and the various references supplied in support.  The Crown took such matters into account also in relation to the Article 29 count.  The Crown, however, viewed as an aggravating factor the fact that the exportation of a very substantial sum of cash had been orchestrated and organised by Peacock from his prison cell.  He had also involved his sister and brother-in-law who at that time had no drug or drug trafficking offences.  Peacock had an appalling record.  The Crown's position was that Article 21(5) and article 29 offences warranted consecutive sentences but regard had to be given to the "totality principle". 

The Defence did not challenge the starting point put forward by the Crown.  It is accepted that the monies to be exported by the sister were the proceeds of drug trafficking and Peacock was doing this for somebody else.  He involved his sister/brother-in-law because he trusted them.  In terms of mitigation emphasis was placed on his guilty plea.  The defendant had made an effort to make a clean breast of things.  He had been full and frank in describing the circumstances which led to the Article 29 offence.  He expressed remorse.  He had shown good conduct whilst in prison.  He had residual youth at the age of 28 and a stated intention of making a new life for himself and his family.  There was a significant increase in the Conclusions to be moved over the last custodial sentence received by the defendant.  He had a good work record when not in custody.  There had been delay bringing the case to a conclusion but no criticism was made of the Crown.  The Defence contended that greater allowance should be made for the mitigation available. 

Previous Convictions:

6 convictions for 16 offences including attempting exportation of a controlled drug, possession of a controlled drug with intent to supply, possession of a controlled drug, offences of dishonesty and public order offences.

Conclusions:

First Indictment

Starting point 12 years' imprisonment.

Count 2:

7 years' imprisonment.

Second Indictment

Starting point 6 years' imprisonment.

Count 1:

18 months' imprisonment, consecutive to First Indictment.

Total: 8½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Conclusions granted.

James Andrew Harris

First Indictment

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) Law 1999.  (Count 1).
1 count of:	Assisting in Jersey in the commission outside Jersey of an offence punishable under a Law enforced in the United Kingdom corresponding to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978, providing for the production and supply in the United Kingdom of a controlled drug, contrary to Article 21(5) of the Misuse of Drugs (Jersey) Law 1978. (Count 2).
1 count of:	Using a motor  vehicle uninsured against third party risks, contrary to Article 2(1)(d) of the Motor Traffic (Third Party Insurance)( Jersey) Law 1948. (Count 3).
1 count of :	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956. (Count 4).
1 count of :	Failing to give such information as was required, contrary to Article 86(1)(b) of the Road Traffic (Jersey) Law 1956. (Count 5).

Age:  25

Plea: Guilty (First Indictment - Counts 2, 3, 4 and 5). Not Guilty (First Indictment - Count 1, plea accepted, count to stay on file).

Details of Offence:

See Peacock above.

Details of Mitigation:

The Crown's position was that Harris was intimately involved in the commission of the Article 21(5) offence outside of Jersey.  He was trusted by Peacock to travel on his own to the United Kingdom to recover and supply the cocaine and take possession of the payment.  He would have benefited financially.  The Crown could see no basis for distinguishing between Harris and Peacock for the purposes of a starting point. 

In terms of mitigation Harris pleaded guilty and the Crown's position remained the same for both defendants on the weight to be attached to this guilty plea.  Harris had a poor record.  The Crown could not see a basis for distinguishing one defendant from the other in terms of the appropriate allowance for the available mitigation.  The motoring counts were minor offences which in isolation would have been dealt with by the Magistrate's Court.  They were separate and distinct offences for which a conservative sentence was warranted. 

The Defence took no issue with the starting point of 12 years.  The Defence had contended that greater allowance should be made in the deduction for mitigation and in particular the guilty plea and the level of co-operation given by Harris in terms of providing the factual basis for the Article 21 offence.  A lengthy trial had been avoided in consequence of the plea. He was aged 25 and had some residual benefit for youth.  He was now drug free and references were provided.  His parents were supportive.  It was contended that the Conclusions moved for in relation to the motoring offences were on the high side.  The Defence contended that a sentence less than 7 years was appropriate. 

Previous Convictions:

14 convictions for 47 offences including possession of a controlled drug with intent to supply, being concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, possession of a controlled drug, dishonesty including larceny, breaking and entry, assaults, public disorder offences and contempt of Court. 

Conclusions:

First Indictment

Count 2:	Starting point 12 years' imprisonment. 7 years' imprisonment.
Count 3:	£500 fine or 3 months' imprisonment in default to run consecutively to Count 2.
Count 4:	£200 fine or 2 months' imprisonment in default to run concurrently to Count 3.
Count 5:	£250 fine or 2 months' imprisonment in default to run concurrently to Count 3.
Total:	7 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Conclusions granted.

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

Advocate H. J. Heath for Peacock.

Advocate D. Gilbert for Harris.

JUDGMENT

the commissioner:

1.        Serge Peacock has pleaded guilty to conspiring with his sister, Clare Fowler, and her husband, Christopher Fowler, to exporting £97,000, being the proceeds of drug trafficking, contrary to Article 29 of the Drug Trafficking Offences (Jersey) Law 1988.  These monies had been secreted in a vehicle being driven by Mr and Mrs Fowler which was searched by Customs and Immigration officers before they departed on a Condor Ferry to Portsmouth.  Mr and Mrs Fowler pleaded guilty to concealing or disguising the proceeds of drug trafficking and were sentenced on the 1^st December, 2006, in the case of Mr Fowler to 140 hours community service and in the case of Mrs Fowler to 13 months in prison, AG v Fowler [2006] JRC 175.  Subsequently her sentence was reduced, on appeal on the basis of exceptional hardship in relation to her children which had arisen after sentencing, to 2 years' imprisonment suspended for 2 years.

2.        This exportation was orchestrated and organised by Serge Peacock from his prison cell, using a mobile phone while he was serving a sentence of imprisonment for an affray and possession of controlled drugs, which was an aggravating factor in the submission of the Crown.  He has numerous previous drug related convictions.

3.        When sentencing Mr and Mrs Fowler the Crown accepted that neither of them had an integral or knowing part in the drug trafficking operation, but were peripheral to it and were not aware of the details of the traffickers' business.  The Crown makes no such concession in the case of Serge Peacock.  The Crown submits that this offence is not susceptible to the application of the Campbell guidelines and noted that in Fowler the Court had confirmed it was not appropriate to lay down any guidelines for offences of this nature.  The Court in Fowler did refer to the following passage from the English Court of Appeal Judgment in the case of R v Greenwood [1995] 16 Cr. App. R. (s) 614:-

"those who launder money from drugs are nearly as bad as those who actually deal in them.  It is merely one step along the line."

4.         It is clear from the decision of the Superior Number on Appeal, Fowler v AG [2007] JRC 044, that the prosecution had taken a starting point of 4½ years' for Mrs Fowler, who had a greater involvement than her husband, and it follows that a higher starting point should be taken for Serge Peacock to reflect his greater culpability or responsibility.  The Crown therefore moves for a starting point for this offence of 6 years' imprisonment and the defence take no point on that.  We agree that that is the appropriate starting point.

5.        Following his release from prison on the 9^th September, 2006, Serge Peacock was seen regularly in the company of the other defendant James Harris and their movements were monitored.  They have since pleaded guilty to assisting in the commission, outside of Jersey, of an offence punishable under a law enforced in the United Kingdom, corresponding to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978, namely with the supplying of 1 kilo of cocaine, with a wholesale value of between £25,000 and £30,000, to a friend of Serge Peacock in the United Kingdom.  The Crown accepts that the supply was not to take place in Jersey and consequently there was to be no importation of that drug into Jersey.

6.        Serge Peacock was contacted by a friend in the United Kingdom who requested the supply of 1 kilo of cocaine from which, it can be deduced, he is someone who is able to service such a request.  He arranged for the supply of 500 grams of cocaine which he and James Harris then bulked out to make 1 kilo of cocaine.  James Harris travelled from Jersey to the United Kingdom to retrieve the cocaine which had been secreted in order to supply Serge Peacock's friend and to take possession of £25,000, which would be split between the defendants after the deduction of expenses, so that each defendant would receive the sum of £7,500.

7.        The Crown sees no basis for distinguishing between the roles of the two defendants and we agree.  The Crown submit that this offence does not fall within the scope of the normal Rimmer guidelines.  It is subject to a maximum sentence of 14 years' imprisonment whereas the penalty under Article 5 of the Misuse of Drugs (Jersey) Law 1978, for the supply of a Class A drug carries a maximum penalty of life imprisonment.  In AG v Reynolds aka Draper 2000/160, a case involving the same offence and 1 kilo of heroin with a street value in Jersey of £300,000, the Court took the maximum of 14 years as the appropriate starting point.  In that case the heroin was ultimately destined for Jersey.  By way of distinction the Crown submit that in this case that it was the proceeds of the supply which was destined for Jersey and therefore the appropriate starting point is 12 years' imprisonment.  The Defence, again, take no point with that proposed starting point.

8.        If this consignment of cocaine had been imported into Jersey or supplied in Jersey it equates to over twice the amount of the highest band in Rimmer; the highest band being 400 grams or over, giving rise to a starting point of 14 years upwards.  Anyone importing into Jersey or supplying in Jersey a Class A drug in this quantity would face a starting point substantially in excess of 14 years.

9.        It is the case that the catalyst for the revision of the sentences for the importation and supply of drugs on a commercial basis in Campbell was the dramatic increase in the amount of drugs coming into Jersey, an attractive market being a prosperous island with low unemployment and where the average disposable income was relatively high, but the Court of Appeal describe the crime of drug trafficking as peculiarly heinous and antisocial in nature and it seems to us that this description, which applies with as much force today as it did in 1995, is appropriate whether that trafficking is carried on in Jersey or outside Jersey.

10.      The absence of guidelines for this offence and the existence of only one precedent, which has been drawn to our attention, and the fact that there is a maximum sentence of 14 years against the maximum of life imprisonment for the equivalent offence in Jersey makes fixing a starting point a difficult exercise.  As a matter of policy, however, and consistent with the decision of the Court in Reynolds, we regard the offence of assisting in drug trafficking in the United Kingdom as just as serious as importing drugs into Jersey or supplying drugs in Jersey.  It is all part of the same evil trade and we agree with the Crown that 12 years is appropriate to mark the gravity of this offence before consideration of any mitigating factors.

11.      We have taken into account all of the mitigating factors put forward by both your learned Counsel, in particular the guilty pleas that have been entered and the expressions of remorse, the letters of support and, of course, the reports.  Advocate Gilbert drew our attention to the case of Reynolds and the reduction in that case from 14 years down to 8 years, attributable, according to Whelan, Aspects of Sentencing in the Superior Courts of Jersey, to the value of the plea.  However, looking at the report of that case we note that the Bailiff, in giving judgment, said:-

"We accept that you have named your supplier and instructed your Counsel to make public that fact"

We think that is the proper explanation for the reduction in sentence that took place in that case.

12.      Both defendants must know, from their past record, the policy of this Court in relation to drug trafficking and the sentences that have been sought can have come as no surprise to them.  The Crown have put forward very substantial reductions from the starting points which in our view more than adequately reflect the mitigation that has been put forward and we are therefore going to grant the conclusions of the Crown.  In relation to the road traffic offences, we have looked at the Magistrate's Court guidelines and in our view, they do not appear to be out of line which with those sought by the prosecution.  

13.      We would like to say to both defendants that we have been very impressed with your constructive approach to your time in prison and your plans for your release.  We note the support of your family and we hope that the families will understand the policy of this Court in relation to the drugs trade and the need to do everything that we can to deter it.  We acknowledge that the effect of these offences on your families is devastating but we have to take into account the interest of other families and the effect on them in relation to this trade.  We would however like to encourage both of you to continue using your time in prison constructively.

14.      Mr Peacock, under the first indictment count 2, you are sentenced to 7 years' imprisonment, in relation to the second indictment you are sentenced to 18 months' imprisonment consecutive to the sentence imposed on the first indictment giving a total of 8½ years' imprisonment.

15.      Mr Harris, in relation to the first indictment count 2 you are sentenced to 7 years' imprisonment, on count 3 you are sentenced to a fine of £500 or 3 months' imprisonment in default, on count 4 you are sentenced to a fine of £200 or 2 months' imprisonment in default, on count 5 you are sentenced to a fine of £250 or 2 months' imprisonment in default.  The default terms under counts 3, 4 and 5 are to be concurrent with each other but consecutive to the sentence under count 2. That gives a total sentence of 7 years' and 3 months' imprisonment.

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

17.      In relation to the request for time to pay, we note that Mr Harris would like to pay at the rate of £10 a week and if our permission is required for that we are happy to give it. 

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

AG v Fowler [2006] JRC 175.

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

R v Greenwood [1995] 16 Cr. App. R. (s) 614.

Fowler v AG [2007] JRC 044.

Misuse of Drugs (Jersey) Law 1978.

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

AG v Reynolds aka Draper 2000/160.