Jersey Unreported Judgments

[2010]JRC101

ROYAL COURT

(Samedi Division)

27^th May 2010

Before     :

W. J. Bailhache, Q. C., Deputy Bailiff, and Jurats de Veuelle, Morgan, Kerley, Nicolle and Allo.

The Attorney General

-v-

Serge Peacock

Robert Harrison Brown

Ana Cristina Pestana Da Silva

Daniel Nigel Crespel

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 26^th March, 2010, following guilty pleas to the following charges:

Serge Peacock

First Indictment

1 count of:

Conspiracy to be concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  31.

Plea: Guilty.

Details of Offence:

199 grams of heroin worth approximately £119,000 on the streets of Jersey was imported by Barrett acting in the role as courier.  (Note:- Barrett was not sentenced with the other defendants due to her pregnancy.  Her case was remanded for a new sentencing date to be fixed once health permitted).  The importation was organised from within La Moye Prison.  Peacock, a serving inmate fulfilled the role of a "fixer".  He was trusted and seen as somebody who could provide or find somebody to assist the onward supply of heroin once it had arrived in Jersey.  Peacock involved Brown, the then boyfriend of Peacock's sister.  Brown's role was categorised as that of a mule.  He was the first link of taking the heroin from a courier onto a "safe house" provided by Da Silva.  His actions allowed the drugs to pass quickly from the hands of the courier into the safe hands of Da Silva.  She provided the "safe house".  She acted in the role of a "caretaker".  She was trusted with this role and also provided funds of £150 to pass onto the courier via Brown.  Crespel's role was to collect the heroin from Da Silva and pass it onto the next link in the chain of supply.  He provided a similar role to that of Brown.  The Crown accepted that he was not to be involved in the ultimate supply of the heroin onto the streets of Jersey. 

Whilst the defendants (save for Barrett) had pleaded guilty to a conspiracy to being concerned in the supply contrary to Article 5(c) the Crown's view was that the Rimmer guidelines were still of assistance.  The Crown relied upon the dicta in AG-v-Whelan and Byrne.  The Crown considered it an appropriate case for the application of the Rimmer guidelines.  The starting point suggested as follows:-

Peacock: 11 years' imprisonment.

Brown: 9 years' imprisonment.

Da Silva: 9 years' imprisonment.

Crespel: 9 years' imprisonment.

Details of Mitigation:

The Crown

A mature adult with an extensive record including 9 previous offences for drugs.  He was servicing an 8½ year drugs sentence at the time.  The Crown viewed as the only substantial piece of mitigation his guilty plea. 

Defence

Issue of totality raised in the context of existing sentence.  Had been asked to assist a fellow inmate (not named) to organise somebody to pick up some cannabis for which Peacock would receive £200.  He was going to spend that on clothing for his child etc.  Personal circumstances set out in detail.  Suggested Rimmer guidelines not of assistance.  Emphasise placed on his role which it was contended other inmates could have fulfilled.  Greater allowance should be given for his guilty plea. 

Previous Convictions:

7 convictions for a total of 18 offences including 9 drug offences, dishonesty, violence, public order and motoring. 

Conclusions:

First Indictment

Count 2:

Starting point 11 years' imprisonment.  7 years' imprisonment, consecutive to existing term of imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

The four accused fall to be sentenced on Count 2 on the Indictment for a conspiracy to be concerned in the supply of heroin which had a street value of £119,000.  The Court had carefully considered all the material put before it by counsel and had carefully considered all the available mitigation.  However, the Court treats these offences with the proper degree of seriousness as they involve the supply of heroin.  The Court's approach is well settled.  The Court was satisfied that the Rimmer guidelines should apply to sentencing in this case.  The Court quoted from AG-v-Whelan and Byrne in support of its view. 

Peacock's involvement was essential to the arrangements and results in the others appearing before Court.  Applying the Rimmer guidelines the correct "starting point" of 11 years had been taken.  The Court had regard to the guilty plea which was entered a little late but also took into account the other mitigation referred to by counsel.  Had regard to 2 aggravating features:-

(1)   Use of telephone whilst in prison albeit of less importance to second factor.

(2)   Notwithstanding was in custody for drug trafficking, he had continued to offend whilst in custody.

The Crown's conclusions of 7 years' imprisonment, consecutive, would be correct but for one factor: R-v-Stevens.  The Court had regards to the totality of the offending and taking into account he was already serving a substantial sentence and had taken that into account in part given that the offence was committed whilst in custody. 

First Indictment

Count 2:

Starting point 11 years' imprisonment.  6 years' imprisonment, consecutive to present term of imprisonment.

Forfeiture and destruction of drugs ordered. 

Robert Harrison Brown

First Indictment

1 count of:

Conspiracy to be concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  35.

Plea: Guilty.

Details of Offence:

See Peacock above.

Details of Mitigation:

The Crown

Mature man with previous convictions albeit only one previous for drugs.  Has a mistaken belief that the drugs were cannabis; not mitigation.  Guilty plea entered on Indictment.  Co-operative with the police; made admissions in interview and was prepared to give statement against co-accused.  Indicated a willingness to give evidence if required to do so.  The Crown contended this was deserving of substantial credit over and above normal credit for co-operation.  The Crown had regard to the information contained within documents before Court. 

Defence

Submitted greater reduction should be made on the "starting point" and for the available mitigation.  Not significant involvement.  Involved on the spur of the moment.  Drugs in his possession for a limited time.  Rimmer guidelines not really applicable.  Consider his role and greater reduction should be made for his guilty plea.  Co-operation, remorse.  Positive use of time whilst on remand. 

Previous Convictions:

14 convictions for 23 offences for violence, dishonesty, possession of controlled drugs and motoring. 

Conclusions:

First Indictment

Count 2:

Starting point 9 years' imprisonment.  3½ years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

See Peacock above.

Confirmed that the Rimmer guidelines should apply.  He assisted in moving the drugs.  The suggestion that he thought was cannabis not mitigation.  The Court noted the size of the package.  Query whether such a belief was realistic.  The Crown's conclusions of a "starting point" of 9 years was correct.  The Court had regard to guilty plea.  Had spent time on remand which he had used constructively.  The Court had regard to all material before it and included all the documents before the Court. 

Conclusions granted. 

Ana Cristina Pestana Da Silva

First Indictment

1 count of:

Conspiracy to be concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  22.

Plea: Guilty.

Details of Offence:

See Peacock above.

Details of Mitigation:

The Crown

Aged 22.  Entered an early guilty plea.  Very co-operative with the police at the time of her arrest and subsequently in interview and the provision of her witness statement.  Would have given evidence if the case proceeded to trial.  Did not have the benefit of good character.  Offence committed whilst still on Youth Custody Licence for a previous offence of drug importation. 

Defence

Played limited role and, therefore, Rimmer guidelines not applicable.  Not sophisticated.  Had the drugs for less than 24 hours.  The Crown had overplayed her role.  Made a serious error of judgement by agreeing to hold drugs.  Background information contained within the Social Enquiry Report.  Early guilty plea.  Had young daughter.  Suggested a significant non-custodial sentence should be imposed. 

Previous Convictions:

1 conviction for 1 offence of importation of heroin. 

Conclusions:

The Crown sought a recommendation for the deportation of Da Silva.  She had previously been subject to an application for a recommendation but the Court by a majority declined to make the recommendation on that occasion (see judgment [2007] JRC 058).  Application was opposed by the defence on the grounds that relevant tests were not fulfilled and in particular disproportionate to the adverse affect on family members. 

First Indictment

Count 2:

Starting point 9 years' imprisonment.  4 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

See Peacock above.

The Court was of the view that the Rimmer guidelines applied and took a "starting point" of 9 years' imprisonment.  She provided safe custody for the drugs, she knew it was heroin and she provided £150 to Brown to give to the courier.  These were the agreed facts.  She was offering a safe house and the heroin delivered at midnight.  In her credit she had been very co-operative and had a guilty plea.  Aged 22 at the time of the offence and therefore, some credit for youth.  Aggravating feature, committed whilst on licence from the youth custody.  In all the circumstances the Crown's conclusions correct. 

This was her second offence of drug trafficking.  The Court was in no doubt that the first test to be applied in relation to a recommendation for a deportation was passed.  A person who commits two drug trafficking offences then must expect the Court to consider their presence detrimental to the Island.  The Court was divided as to whether proportionate to make the recommendation.  The majority of the Court took the view because of the child that it would not be proportionate to order her deportation.  The child would be in the region of 7 years at the end of her prison sentence and, therefore, been in school for some 3 years.  It would be disproportionate to require a child to re-allocate at that time.  No recommendation for deportation, therefore, made. 

Count 2:

Starting point 9 years' imprisonment.  4 years' imprisonment.

Forfeiture and destruction of drugs ordered. 

Daniel Nigel Crespel

First Indictment

1 count of:

Conspiracy to be concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Second 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:  23.

Plea: Guilty.

Details of Offence:

See Peacock above.

Crespel whilst on remand at H.M. Prison, La Moye, had been passed a quantity of cannabis resin and also some Dihydrocodeine tablets for his personal use.  The possession of drugs in prison is always a serious matter and the Crown moved for a consecutive sentence. 

Details of Mitigation:

The Crown

Aged 22.  Guilty plea.  No good character and one previous for drugs.  Had been granted bail on compassionate grounds due to ill health of the mother but breached bail terms on a number of occasions.  Not co-operative in interview. 

Defence

Submissions regarding application of Rimmer repeated.  Guilty plea entered before trial.  Leniency asked for due to serious ill health of mother.  Noted that he could suffer from the same disease.  Background from Social Enquiry Report and various letters put before the Court.  Remorse expressed.  Sentence less than 4 years should be imposed.  No previous convictions. 

Previous Convictions:

10 convictions for 27 offences including assault, motoring, public order, possession of cannabis and possession of prohibited weapon. 

Conclusions:

First Indictment

Count 2:

Starting point 9 years' imprisonment.  5 years' imprisonment.

Second Indictment

Count 1:

2 months' imprisonment, consecutive to Count 2 on the First Indictment.

Total:  5 years' and 2 months' imprisonment. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

See Peacock above.

The Court confirmed Rimmer guideline applied.  He was the next link in the distribution although not selling the drugs himself.  He expected a significant reward.  The "starting point" of 9 years was correct.  He had the benefit of a guilty plea.  He has spent time on remand.  He was aged 22 at the time of the offence.  He had not been very co-operative with the police and also had breached bail terms. 

Conclusions granted. 

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

Advocate S. A. Pearmain for Peacock.

Advocate J. W. R. Bell for Brown.

Advocate D. P. Le Maistre for Da Silva.

Advocate R. C. L. Morley-Kirk for Crespel.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Peacock, Brown, Da Silva, Crespel, you fall now to be sentenced on Count 2 of the First Indictment which is conspiracy to be concerned in the supply of a controlled drug, which was heroin, and the Court has been told that the street value of this drug was something in the order of £119,000. 

2.        We have spent a good deal of time considering all the material which your Counsel have put to us.  The particular points in mitigation have been set out to the Court.  We have gained a great deal of enlightenment from some of the things that were said but we, nonetheless, have to treat these offences with the appropriate degree of seriousness, given that we are talking about the supply of heroin. 

3.        The Court's approach to this particular type of offending has been well settled and the analysis that we have just applied I am now going to run through in the sentencing remarks.  The first thing is the Court is satisfied that the Rimmer guidelines broadly should apply to the sentencing process.  We think that there is absolutely no reason not to apply them having regard to the participation which each of you had in the offence committed.  

4.        Peacock, we regard you, as is quite clear from the material put before us, as having been central to the arrangements which led to you and your co-accused being before this Court.  In the circumstances applying the Rimmer guidelines, we think that the starting point of 11 years' imprisonment is correct.  We have taken into account your guilty plea, albeit it came a little bit late but we have taken that into account and we have taken into account the other mitigation which has been raised by your Counsel.  Nonetheless, the reality is that there in particular, two aggravating features to which we have also had to have regard.  The first one is less important than the second but the withholding of the telephone from the police is something that the Court regards as an aggravating feature; the second one is particularly aggravating and that is the fact that, notwithstanding that you were in custody on drug trafficking offences, you continued, while in custody, to commit the present offence.  In those circumstances the Court takes the view that the Crown's conclusions of 7 years consecutively would be the correct conclusions to apply but for one factor which is the case of R-v-Stevens [1997] 2 Cr. App. R. (S) 180 which was mentioned by your Counsel regarding the totality of the offending, and that means that we should interfere with the Crown's conclusions. 

5.        Taking into account that issue of totality, we sentence you to 6 years' imprisonment and we wish to give the clearest possible signal that in doing so it is the fact that the offences have been committed whilst in prison which the Court has taken into account particularly. 

6.        Brown, we also think the Rimmer guidelines should apply to you; you were central in the arrangements for moving the drugs around; we have noted the assertion that you believed that the drugs in question were cannabis although that has to be set against the size of the packet which has been shown to the Court in the photographs.  In the circumstances the Court thinks that the Crown's conclusions of a starting point of 9 years' imprisonment are correct, having regard also to the starting point of 11, which we have agreed in relation to Peacock.  We have taken into account your guilty plea; we have taken into account the length of time that you have spent in custody on remand and we have had regard to all the material which has been put before us, very ably, by your Counsel, and to the material set out in paragraph 66 of the Crown's summary and indeed all the documents which are before the Court. 

7.        In the circumstances the Court grants the Crown's conclusions and sentences you to 3½ years' imprisonment. 

8.        Da Silva, in your case the Court also takes the view that the Rimmer guidelines should be applied and we are therefore taking the same starting point as with Brown, which is a 9 year starting point.  The Court is of the view that you are clearly aware that you were holding the drugs, you knew it was heroin; you gave £150 to Brown who was to pass it on to Barrett; these are the agreed facts.  You were clearly offering a safe house for the holding of drugs; you received a visit at midnight, indeed, to receive them in the first place.  Allowing credit for your early co-operation with the police and for your early guilty plea, noting also that you were only 21 at the time of this offence and therefore giving you some credit for mitigation for your youth, we nonetheless also take into account the aggravating factor that the offence has been committed whilst on licence and either you have been pre-funded, or have pre-funded to the extent of £150, or at any rate you were trusted to pay the £150 on account of the organiser higher up the chain, which was paid to Brown. 

9.        So in the circumstances, taking all these factors into account, the Court considers the Crown's conclusions of 4 years' imprisonment are correct and you are sentenced to 4 years' imprisonment. 

10.      This is the second offence you have had for a drug trafficking offence.  As to deportation there is no doubt in the Court's mind at all that the first part of the test, "is your continued presence in the Island detrimental to the interests of the community?" is the question, there is no doubt in the Court's mind that that test is passed and that a person who commits two drug trafficking offences of this kind should expect the Court to conclude that their presence in the Island is detrimental to the interests of the community.  The Court has been divided on whether it is proportionate to order deportation in all the circumstances, but the majority have taken the view that, having regard to the interests of your child, which is something by your offending that you perhaps have not done, it would not be proportionate to order deportation and therefore we make no recommendation to this effect.  It is solely having regard to the fact that your child is 7 years old and will have spent 3 years in school in Jersey by the time you are released, that no deportation order is made. 

11.      Crespel, the Court takes the view that again, broadly speaking, the Rimmer guidelines should be applied; you were the link with the distributor, you were clearly not going to take these drugs yourself; you were expecting, according to the social enquiry report, a significant financial return.  The Court thinks that a starting point of 9 years' imprisonment is correct.  We take into account the guilty plea although it has come rather late in the process, and we take into account the fact that you were 22 at the date of the offence and nonetheless, we have also taken into account that on the other side of the coin as it were, you have not been as co-operative with the police as your co-accused Da Silva.  We also have noted the breach of bail conditions in the course of the events leading up to sentencing today. 

12.      In the circumstances the Court considers that the Crown's conclusions are correct and you are sentenced on Count 2 of the First Indictment to 5 years' imprisonment and on the single Count of the Second Indictment to 2 months' imprisonment, consecutive, making a total of 5 years' and 2 months' imprisonment. 

13.      The Court also orders the forfeiture and destruction of the drugs. 

Authorities

Rimmer and Others [2001] JLR 373.

R-v-Stevens [1997] 2 Cr App R (S) 180.

AG-v-Peacock [2008] JRC 027.

AG-v-Da Silva [2007] JRC 058.

Camacho-v-AG [2007] JLR 462.

AG-v-Whelan and Byrne [2005] JRC 045.

R-v-Nazari (1980) 3 ALL ER 888.

AG-v-McDonough 1994/193.

AG-v-Antunes [2003] JRC 074.

R-v-Whitehead (1996) 1 Cr App R (S) 111.