Jersey Unreported Judgments

[2010]JRC121

ROYAL COURT

(Samedi Division)

1^st July 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Tibbo, Le Breton, Le Cornu, Liddiard, and Marett-Crosby.

The Attorney General

-v-

David Rhys Hamilton

Dayle David Owens

Sentencing by the Superior Number of the Royal Court, after conviction at trial on 10^th March, 2010, to the following charges:

David Rhys Hamilton

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:  19.

Plea: Not guilty.

Details of Offence:

The defendants left Holywell in North Wales between 9 and 11am on Wednesday 6^th May, 2009, travelling in Owens' car.  Hamilton supplied the funds, about £400 in cash.  They also had an unknown amount of cannabis resin with them, which they smoked on the journey down. 

They arrived in Tewksbury, near Bristol, at 3:05am on Thursday 7^th May, as shown by a receipt later recovered.  They paid £55 for a room in a Travelodge, leaving three hours later.  When they arrived in Weymouth, they found that they had missed the ferry.  The following morning they caught the 6am Condor ferry to Jersey, arriving at about 10:15am.  They were stopped by customs officers and said they had nothing to declare.  Owens said that they intended to go fishing and "go on the lash" and that they would stay at the local Travelodge.  At the time they had less than £100, no booked accommodation, no return ticket and no local contacts. 

The car was searched and two bank cards were recovered with traces of cocaine.  A lump of cannabis resin was found, the remainder of what they had been smoking on the journey.  The rear wheels were X-rayed, revealing the packages.  Specialist machinery would have been needed to place the packages in the tyres, and the extra weight would have caused vibration in the vehicle when in motion. 

The total weight of cocaine recovered was 984.82 grams.  The street value in £79,000, wholesale price £64,000.  To purchase the drugs in the United Kingdom would have cost approximately £31,000. 

Both defendants initially denied all knowledge of the importation.  Hamilton later claimed that he believed they were importing cash and had been promised £1,000 each.  When this version was put to Owens he agreed with it.  Neither gave any information as to who had given them the drugs, how the packages had been put in the car, when and where they were going to hand them over, when or how they were going to be paid, or by whom.  When asked, they either declined to answer or claimed not to know.  Hamilton stated that he would be in "big trouble" if he named anyone, and "I didn't ask any questions.  You don't ask questions."  Both admitted to using cannabis, Hamilton also admitted being a regular user of cocaine. 

The mobile phones seized from the defendants on arrest were examined.  When seized by customs, Hamilton's phone was missing its SIM card, and in interview he said he had lost it in one of the hotels.  At trial the forensic expert confirmed it would have been in the phone at 11:15am on the day of their arrest when a text message was received.  The search of the defendant's car was started at 10:45 that day.  The SIM card has never been recovered. 

Details of Mitigation:

Youth, no previous convictions for drug offences, support of mothers.  Maintained his belief they were importing money. 

Previous Convictions:

No relevant convictions.

Conclusions:

Count 1:

Starting point 15 years.  10 years' youth detention.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 14 years.  8 years' youth detention.

Forfeiture and destruction of drugs ordered. 

Dayle David Owens

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:  19.

Plea: Not guilty.

Details of Offence:

See Hamilton above.

Details of Mitigation:

Youth, no previous convictions for drug offences, support of mother.   Had expressed remorse although maintained his belief they were importing money.

Previous Convictions:

No relevant convictions. 

Conclusions:

Count 1:

Starting point 15 years.  10 years' youth detention.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 14 years.  8 years' youth detention.

Forfeiture and destruction of drugs ordered. 

R. C. P. Pedley, Esq., Crown Advocate.

Advocate C. M. Fogarty for Hamilton.

Advocate I. C. Jones for Owens.

JUDGMENT

THE commissioner:

1.        The defendants have been found guilty of importing 984.82 grams of cocaine with an estimated street value of £79,000.  It was of 2% purity which, according to the evidence of customs officer Jason Harrison at the trial, is about the limit at which a user would get an effect.  The drugs were secreted in the rear wheels of Owens' car.  Expert opinion is that specialist machinery would have been required to place the packages in the tyres.  Both defendants told the police, when interviewed, that they thought they were importing cash for which they had been promised £1000 each.  They maintained in their interviews with the Probation Department that this was their belief. 

2.        Hamilton has previous convictions for motoring offences but no drug-related convictions.  He is assessed at a low risk of re-offending.  Owens has convictions for affray, possession of an offensive weapon and a motoring offence, but again no drug-related convictions.  He has been assessed at a moderate risk of re-offending. 

3.        Applying the Rimmer guidelines the Crown submits that the correct starting point is 15 years.  Whilst those guidelines set the starting point where the weight exceeds 400 grams at 14 years upwards, we regard these defendants' involvement in the drugs trade as justifying the lower starting point of 14 years. 

4.        At a pre-trial hearing held before Sir Philip Bailhache, Commissioner, on the 21^st December, 2009, he ruled as to the mens rea required in relation to this offence and in the context of the defendants' stated belief that they were importing money, he said the following in conclusion:-

"17. The mens rea of the offence under Article 61(2)(b) of the 1999 Law involves a knowledge or belief that the goods imported were prohibited goods.  It is not necessary for the prosecution to prove that the defendant knew precisely what the goods were.  It is sufficient that the prosecution can establish that the defendant knew that he was engaged in an operation involving the importation of goods which were subject to a prohibition.  I respectfully adopt the words of Widgery LJ (as he then was) in R-v-Hussain (1969) Cr. App. R. 448, (which is still good law in England) when he stated:-

"It seems perfectly clear that the word "knowingly" in the section in question is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place.  If, therefore, the accused knows that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction, even if he does not know precisely what kind of goods are being imported.  It is, of course, essential that he should know that the goods which are being imported are goods subject to a prohibition.  It is essential he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently.  But it is not necessary he should know the precise category of the goods the importation of which has been prohibited."

The English statutory provision is for all practical purposes identical to Article 61(2)(b) of the 1999 Law.

18. Applying those principles to the facts of this case, I do not find it possible to give an unqualified affirmative or negative answer to the question posed by the Crown Advocate.  I would answer the question, and would propose to direct the Jurats, in this way.  First, the prosecution must prove that the goods imported were prohibited goods.  The goods in this case were cocaine, and there is no dispute that the importation of cocaine is prohibited.  Secondly, the prosecution must prove that the defendants knew or believed that the goods which they were importing were prohibited goods.  If the Jurats find that these defendants knew that there was cocaine, or some other controlled drug, in the vehicle, the verdict must be "Guilty".  If the Jurats find that the defendants believed that they were importing money which was either to be used for the purposes of drug trafficking or was itself the proceeds of drug trafficking, the verdict must be "Guilty".  If the Jurats find that the defendants believed they were importing money, but no more than that, the verdict must be "Not Guilty".  I accordingly answer the Crown Advocate's question in that way."

5.        At the trial the Learned Jurats were so directed.  It is the case that in the nature of verdicts in criminal cases no reasons are given and the defendants therefore do not know whether the Jurats were sure that they knew:-

(i)     That it was cocaine, or

(ii)       Some other drug, or

(iii)      Money to be used for drug trafficking or which was the proceeds of drug trafficking. 

6.        Advocate Fogarty submits that as a consequence the defendants do not know the factual basis upon which they are to be sentenced.  A Newton hearing, usually reserved for pleas of guilty, would be unfair, in her submission, and the Court should proceed on the factual basis most favourable to them, namely their belief that this was money.  This might arguably take the offence out of the Rimmer guidelines. 

7.        The defendants are appealing their convictions and the issues raised by Advocate Fogarty will be aired in due course before the Court of Appeal.  For our purposes it suffices to say that the judgment of Sir Philip Bailhache and the directions given to the trial court were concerned with the mens rea of the offence with which the defendants were charged, namely whether they were knowingly concerned in the importation of cocaine.  Applying the directions so given, the Jurats, by their verdict, were sure that the defendants were knowingly concerned and they stand to be sentenced for the offence for which they were convicted, namely the importation of cocaine, an offence which comes within the Rimmer guidelines. 

8.        The defendants erroneous belief, communicated to the police and to the Probation Department, that they were importing money does not, in the view of this Court, comprising as it does the Jurats who sat at the trial, either as a matter of principle or on the facts of this case, make a difference to the determination of the appropriate sentence. 

9.        Both defendants fall within the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994 but we agree with the Crown that the offending here is too serious to justify a non-custodial sentence.

10.      Turning to mitigation, the main plank of Advocate Fogarty's mitigation for Hamilton is what she has described as the extraordinary way this case has proceeded and that the defendants do not know, she says, what they have been convicted of.  We can see nothing extraordinary in the way this case has proceeded.  A point of law, namely the mens rea of the offence, was taken at a pre-trial hearing and was the subject of a fully reasoned judgment.  Whether that judgment is correct in law will be a matter for the Court of Appeal but it is not a matter for this Court.  Furthermore, the defendants do know what they have been convicted of, namely the importation of cocaine knowingly. 

11.      The defendants get no credit for a guilty plea, having pleaded not guilty and causing a trial and the Crown has, in its words, struggled to find ways to reduce the sentence we have considered the mitigation and the documents put to us very carefully.  Foremost in our minds is the youth of the two defendants who were both 18 at the time.  As the Bailiff said in AG-v-Murphy [2009] JRC 155, no Court likes sending young men to prison for a long time but we have to bear in mind the victims of the drug trade and the misery caused to users and their families here.  Again, as the Bailiff said, the harm done "is almost incalculable, those who deal in drugs must expect severe sentences".

12.      We have taken particular note of the impressive support of the defendant's two mothers who are here in Court which speaks much for them and we have considered carefully the excellent references.  We agree that these are two naive young men who had been cynically used by others, others who are not before us.  We cannot criticise the conclusions reached by the Crown but as an act of leniency we are going to reduce the sentences. 

13.      You are both sentenced to 8 years' youth detention. 

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

Authorities

Rimmer and Others-v-AG [2001] JLR 373.

AG-v-Hamilton and Owens [2009] JRC 246.

AG-v-Murphy [2009] JRC 155.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Durkin and Ors [2004] JRC 163.

AG-v-Carter, Allan and Hume [2005] JRC 051.

AG-v-Smith [2009] JRC 063.