Jersey Unreported Judgments

[2008]JRC209

ROYAL COURT

(Samedi Division)

1^st December 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Bullen, Clapham, Le Cornu, Morgan and Liddiard.

The Attorney General

-v-

Mark Andre Such

Helen Jeanette Bowler

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 10^th October, 2008, on the following charges:

Mark Andre Such

First Indictment

3 counts 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.  (Counts 1, 2 and 3)

Second Indictment

1 count of:	Larceny.  (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Count 2).

Age:  33.

Plea: Guilty.

Details of Offence:

First Indictment

Bowler and Such travelled to Gatwick on 19^th December, 2007.  They visited London and Oxford.  Such, who was the architect of the trip, purchased heroin; Bowler purchased Christmas wrapping paper, CD's and jiffy bags.  The drugs were wrapped and posted to three false names to Jersey addresses provided by Bowler.  They returned to Jersey on 22^nd December, 2007.  Customs intercepted the packages.  Total weight of heroin 17.38 grams; wholesale price in Jersey between £3,476 and £5,214.  At street level, retail approximately £17,380.  In England the purchase price would have been about £780.  Such had recently received an insurance pay-out and it was accepted he bought the heroin with these funds.  Such pleaded guilty in indictment; Bowler was convicted after inferior Number trial.

Second Indictment

Such - Count 1; admitted stealing a pair of sunglasses from an opticians valued at £90; Count 2; following a search of his home, he further admitted having purchased 50 Diazepam.  Bowler admitted possessing 4 Diazepam tablets.

Details of Mitigation:

Such - guilty plea.  Such admitted being a long term heroin addict and it was accepted by Jurats that drugs could have been solely for personal use; tried to exculpate his co-accused.

Previous Convictions:

12 convictions for 24 offences, 13 of which drugs related.  In 1999 had been imprisoned for 4 years for drugs offences.

Conclusions:

First Indictment

Starting point 8 years' imprisonment.

Count 1:	4½ years' imprisonment.
Count 2:	4½ years' imprisonment, concurrent.
Count 3:	4½ years' imprisonment, concurrent.

Second Indictment

Count 1:	1 month's imprisonment, consecutive.
Count 2:	2 weeks' imprisonment, consecutive.

Total:  4 years 7 months and 2 weeks' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

First Indictment

Starting point 8 years' imprisonment.

Count 1:	4 years' imprisonment.
Count 2:	4 years' imprisonment, concurrent.
Count 3:	4 years' imprisonment, concurrent.

Second Indictment

Count 1:	1 month's imprisonment, concurrent.
Count 2:	2 weeks' imprisonment, concurrent.

Total:  4 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Helen Jeanette Bowler

First Indictment

3 counts 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.  (Counts 1, 2 and 3)

Third Indictment

1 count of:

Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).

Age:  31.

Plea: Not Guilty (First Indictment - Counts 1, 2 and 3, found guilty after Inferior Number Trial on 9^th October, 2008).  Guilty (Third Indictment - Counts 1 and 2).

Details of Offence:

See Such above.

Details of Mitigation:

No discount for plea but much lesser role; mother and primary carer for 10 year old son.

Previous Convictions:

2 relatively minor convictions for 4 offences, 2 of which drug related.

Conclusions:

First Indictment

Starting point 8 years' imprisonment.

Count 1:	2 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.

Third Indictment

Count 1:

1 week's imprisonment, consecutive.

Total:  2 years and 1 week's imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

First Indictment

Count 1:	240 hours' Community Service Order, or 18 months' imprisonment in default.
Count 2:	240 hours' Community Service Order, or 18 months 'imprisonment in default, concurrent.
Count 3:	240 hours' Community Service Order, or 18 months' imprisonment in default, concurrent.

Third Indictment

Count 1:

40 hours' Community Service Order, concurrent to First Indictment.

Total:  240 hours' Community Service Order, or 18 months' imprisonment in default.

Forfeiture and destruction of drugs ordered.

S. Sharpe, Crown Advocate.

Advocate C. Hall for Such.

Advocate M. J. Haines for Bowler.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Such, you have a long standing heroin addiction.  You arranged to go to England in order to buy heroin because it is so much cheaper there.  The Court proceeds on the basis that the heroin was for your own personal use.  You used the proceeds of an insurance claim to pay for the heroin and your mother gave evidence in the trial to satisfy the Court of that.  You purchased just over 17 grams which was then packaged up and sent to Jersey.  You chose to involve your girlfriend, Miss Bowler.  The Court has found that, even if she did not know the purpose of the trip before leaving for England, she soon learned the truth and then, in that knowledge, assisted you by purchasing the necessary items for the packaging and assisting in wrapping up the packages which were then despatched to Jersey.  The Court is satisfied that you were the main player.  The trip was undertaken for your benefit alone; Miss Bowler was merely prevailed upon to assist you as your girlfriend.

2.        Dealing with you first Such, the Crown suggest a starting point of 8 years having regard to the applicable brackets in Rimmer and we agree that that is the correct starting point.  In mitigation there is your guilty plea and the fact that, albeit it late in the day, you wrote the letter which gave rise to that.  You have an appalling record including a number of drug trafficking offences and it is quite clear that until you conquer your heroin addiction, the future is bleak, but we are pleased to hear that you are taking advantage of what is available in the prison.  We urge you very much to do so, so that when you are released you can look with more confidence to the future.  We also take into account that this was for your personal use and that is additional mitigation.

3.        In all the circumstances we think we can allow a little more than the Crown has.  The sentence we impose on the 3 Counts on the main Indictment is 4 years' imprisonment, concurrent on each Count and on the Second Indictment; 1 month's imprisonment on Count 1; 2 weeks' imprisonment on Count 2, but we make those concurrent, so that is 4 years in all.

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

5.        Miss Bowler, we have already said that we accept that you had a very limited involvement in this.  This whole transaction brought no benefit to you at all.  You simply behaved as you did to assist your boyfriend and in fact it brought no real benefit in the sense that they were matters he could have dealt with quite satisfactorily himself.  So this was a very limited and unusual involvement.  In the circumstances we think the Rimmer guidelines simply have no application.  In mitigation we have listened to all that your Advocate has said.  You are the sole carer of your son, we have read carefully the contents of the various reports and letters and references and of course you have a comparatively minor list of previous convictions.  In all the circumstances we are persuaded this is an exceptional case and we can proceed by way of a non-custodial sentence.

6.        The sentence we impose on each of the 3 Counts is one of Community Service of 240 hours, these to run concurrently, and we say that the prison sentence we would have had in mind as an alternative is one of 18 months.  On the Second Indictment we impose a Community service Order of 40 hours also to be concurrent, so that is a total of 240 hours.  You must realise Miss Bowler, that you must carry out this Community Service, you must turn up when you are told and you must carry out the work, because if you do not or if you re-offend, then you will be brought back here, and of course, if you are brought back here then you will really be at substantial risk of going to prison because this Community Service is the Court giving you an alternative to prison.  This is your chance, so take advantage of it.  We hope very much that we will not see you here for breaching the Community Service Order.

7.        We order the forfeiture and destruction of the drugs on the Second Indictment.

Authorities

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