Jersey Unreported Judgments

[2008]JRC112

ROYAL COURT

(Samedi Division)

14^th July 2008

Before     :

Sir Philip Bailhache, Kt., Bailiff and Jurats Tibbo, Allo, Clapham, Le Cornu and Morgan.

The Attorney General

-v-

Darren Neil McCormack

Dean John Barnett

Wayne Michael Jackson

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 16^th May, 2008, following guilty pleas to the following charges:

Darren Neil McCormack

First Indictment

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) Law 1999.  (Count 1).

Second Indictment

1 count of:

Contempt of Court.  (Count 1).

Age:  29.

Plea: Guilty.

Details of Offence:

This case involved the importation of 120 grams of heroin into Jersey which had a street value of £120,000.  Jackson had acted as the organiser or facilitator of this importation.  He was not, however, the UK principal.  He had travelled to Jersey and collected £2,000 from McCormack, the Jersey connection, and then had returned those monies to an unknown principal.  It was accepted that he had not touched the heroin but his role was to organise the meeting between the courier, Barnett, and McCormack and there was substantial telephone evidence which verified his role.  Barnett fulfilled the role having imported the drugs internally.  He became involved partly to keep his son from being involved and partly for the sum of £800.  When arrested he had lashed out at the Officer, knocking him over and had then escaped.  Whilst running away he had thrown away the package of heroin but this was fortunately retrieved and Barnett subsequently arrested.  The Crown sought a consecutive sentence for the assault on the Police Officer (Count 2).

McCormack had provided Jackson with the sum of £2,000 and had been in regular contact leading up to the importation and was due to meet Barnett to take delivery of the heroin.  The Defence's position was that he was not thereafter to be involved in the onward supply at a street level other than to simply pass it onto another unknown person.

The Crown took as a "starting point" a sentence of 11 years' imprisonment for all three defendants.  It did not seek to distinguish between any of them.

McCormack had been granted compassionate bail by the Magistrate to attend a funeral of a friend and he failed to return at the designated time thus absconding.  He was at liberty for 4 days before being re-arrested.  He had taken steps to alter his appearance by changing his hair colour (Count 1 on the First Indictment).  The Crown sought a consecutive sentence for this Count.

Details of Mitigation:

The Crown gave credit for the guilty plea.  He did not, however, have the benefit of youth or good character.  He had only been out of prison a relatively short period of time before becoming involved in this offence.  It was his first conviction for drug trafficking.  The Crown also had regard to matters raised in the Social Enquiry Report and the other documents before the Court.

The defence suggested a sentence of between 6 and 6½ years imprisonment.  He was not the Jersey principal but had simply acted as a 'postman'.  He was not a drug user and was entitled to the full one third for his guilty plea and suggested that the Crown had not allowed sufficient credit for the other mitigation.  Reference was made to the personal circumstances in the Social Enquiry Report and in particular to his background.  He had the support of his partner and had been in full time employment prior to his arrest.  He failed to return after the funeral as he wanted to grieve alone.  The Defence Counsel had no instructions in relation to why he had changed his appearance.  A concurrent sentence was suggested.

Previous Convictions:

25 convictions for a total of 46 offences including possession of drugs, possession of offensive weapons, dishonesty, motoring, attempting to pervert the course of justice and breaking and entry, grave and criminal assault and escape from lawful custody.

Conclusions:

First Indictment

Starting point 11 years' imprisonment.

Count 1:

7 years' imprisonment.

Second Indictment

Count 1:

3 months' imprisonment, consecutive.

Total: 7 years' 3 months' imprisonment.

Confiscation Order in the sum of £1,770 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The three defendants had pleaded guilty to being concerned in the importation of 120 grams of heroin with a street value of £120,000.  Heroin is a vicious and highly addictive drug.  There is a serious problem in this Island and the drug put countless lives at risk.  The Royal Court's policy is to impose severe sentences to punish defendants and to deter others.  The Crown had moved for a "starting point" of 11 years for each defendant.  The Court did not think this was correct as there was not equal responsibility on the three defendants. 

He was the Jersey end of the operation and supplied the money and was due to meet the courier.  He had absconded whilst on bail and had abused the trust imposed in him by the Magistrate's Court.  He had a bad record having only been released from prison in July 2007.  In mitigation he had his guilty plea and the Court had taken account of the references etcetera.  The Court considered the Crown Advocate's conclusions to be correct.

Conclusions granted.

Dean John Barnett

First Indictment

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) Law 1999.  (Count 1).
1 count of:	Assault.  (Count 2).

Age:  44.

Plea: Guilty.

Details of Offence:

See McCormack above.

Details of Mitigation:

The Crown gave due weight to his guilty plea which had been entered at an early stage.  Despite his attempt to evade arrest and initial denial of involvement, he then became fully co-operative and made admissions.  He was a mature individual and did not have the benefit of youth or good character although he had not offended for 10 years and he was a first drugs offender.  The Crown had regard to the contents of the Social Enquiry Report and the other documents placed before the Court.

The Defence contended that a as a courier there should be a distinction on the "starting point" and suggested a "starting point" of 10 years.  In terms of mitigation he had the guilty plea, full co-operation, lack of criminal record for drugs and remorse.  He and his family had been the subject of threats and he had only become involved because of the threats in the first instance to his son.  A 4-5 year sentence was suggested with a concurrent sentence on Count 2.

Previous Convictions:

8 convictions for 14 offences for theft, burglary, deception and affray.

Conclusions:

First Indictment

Count 1:	Starting point 11 years' imprisonment, 6 years' imprisonment.
Count 2:	1 month's imprisonment, consecutive.

Total: 6 years' 1 month's imprisonment.

Confiscation Order in the sum of £162 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

See McCormack above.

A courier was usually a foot soldier whilst those who procure and direct and importation are higher in the chain of command.  The courier's risk is part of the arrangement as he is exposed to the highest risk of apprehension.  The Court under the guidelines assessed the degree of involvement and considered Barnett to be at a lower level and, therefore, fixed a "starting point" for him of 10 years' imprisonment.  It was not possible to distinguish between the involvement of the other co-defendants and, therefore, the "starting point" was one of 11 years.  Barnett had brought the heroin into Jersey in his rectum.  He had pushed over the Officer to evade arrest.  Mitigation was his guilty plea at an early stage and made admissions as to his part he played.  He is married and had children and had army service which was to his credit.  He did not have a good record but it was of significance that he had not offended for 10 years.  In relation to the second indictment the Court assessed this was a minor matter and a concurrent sentence was appropriate.

First Indictment

Count 1:	Starting point 10 years' imprisonment, 4½ years' imprisonment.
Count 2:	1 month's imprisonment, concurrent.

Total: 4½ years' imprisonment.

Confiscation Order in the sum of £162 made.

Forfeiture and destruction of drugs ordered.

Wayne Michael Jackson

First Indictment

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) Law 1999.  (Count 1).

Age:  25.

Plea: Guilty.

Details of Offence:

See McCormack above.

Details of Mitigation:

He was aged 25 and has some residual credit for youth.  He was not of good character and had 2 previous convictions for possession of drugs.  It was his first drug trafficking offence.  He had credit for the guilty plea and the matters raised in the Social Enquiry Report.

The Defence did not challenge the "starting point".  It contended that the Crown had not allowed sufficient credit for the mitigation.  He was not the principal in the UK and not had contact with the drugs.  The Social Enquiry Report revealed a difficult background.  He had a drug debt and agreed to be involved for the clearing of a debt and for a payment of £250.  He now had responsibilities with a young daughter and wished to make something of his life.  A sentence of 6 years was suggested.

Previous Convictions:

18 convictions for 36 offences including theft, burglary, assault, possession of controlled drugs, breach of Court Orders including failing to surrender to custody and handling stolen goods.

Conclusions:

First Indictment

Starting point 11 years' imprisonment.

Count 1:

7 years' imprisonment.

Confiscation Order in the nominal sum of £1 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

See McCormack above.

He was aged 25 and was the youngest of the three defendants.  It was accepted that he was not the "general" of this importation but was at the higher level in that he was trusted to come to Jersey to collect money and acted as the organiser/facilitator in the UK.  He was close to the supplier.  For these reasons the "starting point" was 11 years.  In mitigation he pleaded guilty but initially had sought an "Old Style Committal".  He had made no admissions to the Police and had answered "no comment" on legal advice.  No mitigation was to be found in these matters.  He had a bad record albeit he was a first drug trafficking offender.  The Court had regard to the letters provided and expressed the hope that he would rid himself of drugs.  The Court felt that the Crown could have allowed slightly more by way of mitigation for his age.

First Indictment

Starting point 11 years' imprisonment.

Count 1:

6½ years' imprisonment.

Confiscation Order in the nominal sum of £1 made.

Forfeiture and destruction of drugs ordered.

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

Advocate M. J. Haines for McCormack.

Advocate D. Gilbert for Barnett.

Advocate A. J. Olsen for Jackson.

JUDGMENT

THE BAILIFF:

1.        These defendants have pleaded guilty to being concerned in the importation of 120 grams of heroin, with a street value in Jersey of £120,000.  Heroin is a vicious and addictive drug which has destroyed the lives of countless people and which represents a serious problem in this island as in other places.  The policy of this Court is to impose severe sentences on those who traffic in Class A drugs, both to punish the offenders for what is a grave crime, and in the hope of deterring others from bringing heroin into Jersey.

2.        The Crown has taken a starting point, following the guideline case of Rimmer of 11 years in the case of each of the defendants.  We do not think that it is right, in this case, to attribute equal responsibility amongst the defendants.  The courier is usually the foot soldier in an operation of this kind.  Those who procure the money and the drugs and who direct the operation are almost always at a higher level in the chain of command, and accordingly stand to make a greater profit than the courier.  The courier performs what is probably the riskiest part of the operation in terms of apprehension for a fee or reward of some kind.  In our judgment, applying the Rimmer guideline that the Court's task is to assess the degree to which the defendant was involved in the drug trafficking, Barnett is at a lower level than either of his co-defendants.  We take a starting point in his case of 10 years, and in the case of his co-defendants, between whom it is not possible to distinguish, a starting point of 11 years as recommended by the Crown Advocate.

3.        Barnett brought the heroin into Jersey concealed in his rectum.  In order to evade arrest he pushed over a Police Officer and he is to be sentenced for the offence of assault as well.  In mitigation he pleaded guilty to the indictment at an early stage and made admissions to the Police as to the part which he played.  That has been accepted by the Crown.  Barnett is a married man with children.  He has army service to his credit.  Although he does not have a good record, there is a very significant gap in that he has not offended for the last 10 years.  We take all that into account.  We propose to take the view that the assault was a relatively minor matter and that a concurrent sentence is appropriate in relation to that.

4.        Barnett, on Count 1 you will be sentenced to 4½ years' imprisonment; on Count 2 to 1 month, concurrent, a total of 4½ years' imprisonment.

5.        Jackson is 25 and the youngest of the participants.  The Crown has accepted that he was not the general, but he was high enough in the chain of command to collect the money in Jersey and to act as the United Kingdom organiser or facilitator, of the importation.  He was, therefore, fairly close to the source of supply.  It was for all those reasons that we have taken the starting point of 11 years.  In mitigation he has pleaded guilty to the indictment, although he had initially insisted upon an old style committal; he made no admissions to the Police, answering no comment to the questions.  We note that that was on legal advice.  There is, accordingly, no mitigation to be found there.  He has a bad record, but this is his first conviction for drug trafficking.  We have taken into consideration all the papers placed before us and of course the submissions of Counsel.

6.        Jackson, we have considered your letter and the letter from your partner, and we think that you are lucky to have the support that you do have from your partner.  You have let down your family, as we are sure you appreciate, and we hope that you will take the opportunity of the time that you are going to spend in custody to rid yourself completely of drug addiction so that when you come out you can be a father to your child and a husband, or a partner, to your girlfriend.  We think that the Crown Advocate might perhaps have allowed slightly more mitigation in respect of your age than was done and the sentence of the Court is that you will be sent to prison for 6½ years for the offence to which you have pleaded guilty.

7.        McCormack was the Jersey end of the operation.  He supplied the money to Jackson and he was due to collect the drugs from Barnett.  He absconded whilst on bail and abused the trust placed in him by the Magistrate and is to be sentenced for that contempt of Court.  He, too, has a very bad record of previous convictions and was released only in July 2007.  In mitigation he has pleaded guilty to the indictment.

8.        McCormack we have taken careful note of all the references that you have placed before us, but we reach the conclusion that the Crown Advocate's conclusions are correct and you are therefore sentenced on the first indictment to 7 years' imprisonment; on the second indictment to 3 months consecutive, making a total of 7 years' 3 months' imprisonment.

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

Authorities

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

Harrison v AG [2004] JLR 111.

Whelan on Sentencing 2002.

AG v Busby Unreported 20^th January, 1997.

AG v McMahon 2000/74.

AG v Franey and Others [2006] JRC 018.