Jersey Unreported Judgments

[2010]JRC177

ROYAL COURT

(Samedi Division)

29^th September 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats De Veulle, Tibbo, Le Breton, Nicolle and Bullen.

The Attorney General

-v-

Ewa Agata Chlewicka

Dorota Korbuszeweska

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 3^rd September, 2010, following guilty pleas to the following charge:

Ewa Agata Chlewicka

1 count of:

Being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  (Count 1).

Age:  37.

Plea: Guilty.

Details of Offence:

On 17^th May 2010, customs officers stopped a car arriving at Elizabeth Terminal with two female passengers.  Chlewicka said that she had come to the Island in order to meet a boyfriend she had met on the internet.  She could not remember the name of the hotel, said that she was unemployed but had sufficient money to support both Korbuszewska and herself. 

Two weeks later a car containing the defendants along with Chlewicka's two children arrived at the harbour.  The officer recognised the names and realised that they were the same women she had spoken to earlier that month.  Chlewicka said that she was in the Island for a short break but would not be seeing her boyfriend again as they had split up.  Remembering that both defendants were unemployed she asked how they were funding the trip.  Chlewicka said that she received maintenance from her ex-husband and that a trip to Poland would be just as expensive. 

At about 1:30pm on Wednesday 16^th June 2010, less than a month later, the two defendants arrived on a flight from Gatwick.  They stated that they were over for another short break.  They both denied carrying any prohibited items.  During a full search Chlewicka did not want to hand her knickers to officers and tried to put them back on.  As she did so a green and orange package was seen.  Chlewicka was arrested and cautioned.  Korbuszewska was also arrested and cautioned.  When searched, as she was about to remove her dress she said "Ok, I have" and then produced a green and pink package from her knickers.  Both were x-rayed to check for internal concealment, which proved negative. 

The package recovered from Chlewicka contained 211.96g of cocaine, that recovered from Korbuszewska contained 211.85g, totalling 423.8g.  The estimated cost is between £10,000 and £11,700.  The wholesale value in Jersey is between £21,000 and £24,000 and the street value is £34,000. 

Both defendants gave largely "no comment" interviews, but in their probation reports both defendants gave identical versions of how the importation came about.  They claimed that on their second visit to Jersey they had been drugged and raped in their hotel, but decided not to report it.  Once they had returned to Holland the men who had assaulted them turned up at their home, said that they had recorded the rapes on their mobile phones, and would put the footage online unless the defendants carried out the importation.  There were also threats aimed at Chlewicka's children, and threats to burn her house down.  They both claimed that they had been told to travel to Jersey via Gatwick to smuggle drugs, but were only given the packages after the plane had touched down in Jersey.  They said they were approached by another passenger who was on the same flight but unknown to them, and told to conceal the packages in their underwear.  A customs officer stated that they had been watching from the moment they entered the terminal, and had not met anyone nor gone to the toilets.  The Crown submitted that this account was implausible. 

Both were assessed as being at the higher end of a low risk of re-offending. 

Details of Mitigation:

Guilty pleas; good character; some mental health issues; recent remorse. 

Previous Convictions:

None deemed relevant. 

Conclusions:

Count 1:

Starting point 14 years.  9 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:

Starting point 13 years.  7 years' imprisonment.

Forfeiture and destruction of the drugs ordered.

Recommendation for deportation made.

Dorota Korbuszeweska

1 count of:

Being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  (Count 1).

Age:  31.

Plea: Guilty.

Details of Offence:

See Chlewicka above. 

Details of Mitigation:

See Chlewicka above. 

Previous Convictions:

None deemed relevant. 

Conclusions:

Count 1:

Starting point 14 years.  9 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:

Starting point 13 years.  7 years' imprisonment.

Forfeiture and destruction of the drugs ordered.

Recommendation for deportation made.

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

Advocate C. R. Baglin for Chlewicka.

Advocate S. A. Pearmain for Korbuszeweska.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are charged with and have pleaded guilty to being knowingly concerned in the importation of cocaine into this Island.  The importation of Class A drugs, of which cocaine is one, is a very serious offence here and the Court has an established policy of sentencing those who commit these offences to periods of imprisonment unless there are exceptional circumstances.  Very often these sentences are imposed where to do so will cause some hardship for the families of the offenders, and the Court notes, with sadness here, that there will be an impact on both your families as a result of the sentences we are about to impose.  But against that we take into account that those who commit criminal offences should think about the consequences before embarking on their course of criminal conduct.  What also goes into the scales is the fact that the amount of drugs involved is capable of doing substantial damage to this community.  The Court has no doubt that a custodial sentence is right in principle here. 

2.        You had, respectively, 211.96 grams and 211.85 grams on you, but you are charged as part of a joint enterprise so that, in effect, the importation was approximately 423 grams.  In the case of Rimmer v AG [2001] JLR 373, the Court of Appeal set down the approach which this Court should follow when sentencing offenders for committing this offence.  It is clear from that case that the weight of drugs is the most significant factor, although we also take into account, as we are required to do, any other relevant features which include the involvement in drug trafficking and, to a lesser extent, the street value of the drugs.  The case of Rimmer also makes it plain that the Court is not to treat these bands as embodied in a statute or set in stone and for that reason, and having regard to the street value of the drugs that have been imported, we propose to take a starting point of 13 years.  That is based largely on the quantity of drugs but reduced because of the relatively low street value. 

3.        We now come to mitigation which we allow against that starting point.  The Court has taken into account your guilty pleas and gives you full credit for that.  We have also taken into account that you are essentially of good character and we have taken into account the personal mitigation which you both have, including some difficulties with mental health which you have both experienced.  We think that you have shown, at least recently, some remorse and you have produced some admirable references.  We do not take into account any significant mitigation in relation to the alleged threats. 

4.        In the circumstances the Court sentences you to 7 years' imprisonment on this Indictment. 

5.        We have also had to consider the question of deportation and the test to be applied is set out in the Court of Appeal case of Camacho v AG [2007] JLR 462.  We have no doubt that your continued presence in the Island is to the Island's detriment.  That flows from having convictions of this kind.  We are not advised of any human rights issues which arise and indeed understand you to accept that the deportation order should be made.  Accordingly the Court makes a recommendation for deportation when you have served your sentence. 

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

Authorities

Rimmer v AG [2001] JLR 373.

Camacho v AG [2007] JLR 462.

Shahnowaz-v-AG [2007] JLR 221.