Jersey Unreported Judgments

[2010]JRC230C

ROYAL COURT

(Samedi Division)

16^th December 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle, Tibbo, Le Breton, Morgan, Marett-Crosby and Le Brocq.

The Attorney General

-v-

Mahfuz Ahmed

Matthew Charles Harris

Sentencing by the Superior Number of the Royal Court, following guilty pleas to the following charges:

Mahfuz Ahmed

1 count of:

Conspiracy to commit a Statutory Offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely Diamorphine (Heroin)), which is contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 1).

Age:  22.

Plea: Guilty.

Details of Offence:

Ahmed imported from the UK internally approximately 24.67 grams of heroin with a street value of £24,650.  Ahmed and Harris kept under surveillance and seen to meet each other on two occasions.  On the second occasion Ahmed passed what the prosecution said was a quantity of drugs and Harris passed £300 in cash to Ahmed.  A subsequent analysis of mobile telephones showed contact between the two defendants prior to importation together with contact with third parties (unidentified by prosecution) who were involved in arranging the importation and contact between the two defendants in Jersey.  The telephone evidence showed that whilst Ahmed was the courier and Harris the point of contact both were heavily involved in this importation.  The Crown did not seek to distinguish between the two defendants in terms of their culpability. 

The Crown took a starting point of 8 years' imprisonment under the Rimmer guidelines. 

Harris - personal amount of cannabis found with a value of £5 (Count 4). 

Details of Mitigation:

The Crown

Guilty plea entered on Indictment; first offender; previous good character. 21 at the time of this offence; was not co-operative with the Police denying any involvement in the importation, denied meeting Harris before the drug exchange.  Gave an account to the probation officer to the effect that he had been threatened to undertake the importation.  The Crown questioned the veracity of this account.  The threats, in any event, did not amount to mitigation. 

Defence

Submitted that starting point should be 7 years; greater allowance for his role as courier.  Tried to pull out of the first attempt at importation but then had been threatened with a knife.  Claimed he had been offered £1,300 to bring the drugs into Jersey.  Knew he was importing drugs but not the precise type of drugs.  Guilty plea was valuable.  Youth; apology to Court; using time on remand constructively.  Low risk of re-offending; offence out of character. 

Previous Convictions:

None.

Conclusions:

Count 1:

4½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Confiscation Order sought in the sum of £300.

Recommendation for Deportation Order sought.  Adjourned pending clarification as to whether he had an outstanding application for British Citizenship with the Home Office in England. 

Sentence and Observations of Court:

Ahmed and Harris have pleaded guilty to conspiring to import heroin into Jersey.  The Court's policy in such cases was absolutely clear and had been in place for a long time and established by the Court of Appeal and that policy called for a custodial sentence for such offending.  The Court had considered the starting point and the starting point of 8 years' imprisonment taken by the Crown was the correct one.  The Crown did not distinguish between the roles played by the two defendants.  Ahmed was responsible for bringing drugs into the Island.  In mitigation the Court had taken into account his guilty plea.  Some value to that plea as the drugs were not found on him.  No previous convictions and a letter of remorse.  The Court had noted all the references and had noted all that was said on his behalf by Counsel.  Only aged 21 at the time of the offence.  The Court had taken this into account when considering sentence.  The Court had not taken into account the allegations of threats in mitigation as did not think that threats as a matter of policy amounted to mitigation.  The Court had carefully looked at the explanation provided by Ahmed to the probation officer.  It did not find that explanation credible.  The Court felt able to slightly adjust the Crown's conclusions to allow a little extra for mitigation. 

Count 1:

4 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Confiscation Order made in the sum of £300.

Deportation hearing adjourned until Friday 14^th January, 2011 at 10am.

Matthew Charles Harris

1 count of:	Conspiracy to commit a Statutory Offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely Diamorphine (Heroin)), which is contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 4).

Age:  29.

Plea: Guilty.

Details of Offence:

See Ahmed above.

Details of Mitigation:

The Crown

Guilty plea entered on Indictment; no mitigation through age; appalling criminal record; eleven previous drugs offences.  No other significant mitigation. 

Defence

Had been a drug addict for the last 14 years and had ruined his life through drugs; now institutionalised; family still supportive.  He was not the main person behind this importation.  He wanted to be sent to Winchester prison as it had better facilities there for underlying drug problems.  No issue taken with starting point; valuable guilty plea; needed motivation to break habit and therefore suggested lesser sentence would give him that hope and motivation. 

Previous Convictions:

Eleven convictions for a total of forty-five offences; eleven previous drug offences (including importing, receiving and possessing controlled drugs); other offending involving common assaults; attempted robbery, larceny, breaking and entry, motoring and public order. 

Conclusions:

Count 1:	5½ years' imprisonment.
Count 4:	1 week's imprisonment, concurrent.

Total:  5½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Confiscation Order sought in the nominal sum of £1.

Sentence and Observations of Court:

Starting point was right at 8 years' imprisonment.  Guilty plea albeit somewhat late.  Very little other mitigation available to him.  He had a poor record and had previous offences for trafficking.  He was, therefore, perfectly well aware of the Court's policy for such offences.  Counsel invited Court to give him some hope and encouragement for his future.  For that reason the Court was minded to reduce the Crown's conclusions by 6 months.  At the end of the day it was Harris' decision as to whether he continued to be involved in drugs.  If he did then he could expect the sentence to get longer and longer but it was a matter of his choice.  The Court expressed the hope that he would take advantage of the opportunities available. 

Count 1:	5 years' imprisonment.
Count 4:	1 week's imprisonment, concurrent.

Total:  5 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Confiscation Order made in a nominal sum of £1.

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

Advocate J. W. R. Bell for Ahmed.

Advocate S. E. Fitz for Harris.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Harris, Mr Ahmed, you are charged and you have pleaded guilty to conspiracy to evade the prohibition on the importation of Heroin.  The Court's policy in relation to this offence is absolutely clear and the Court has, for a long time, adopted the policy that this offence calls for a custodial sentence in accordance with the directions given to us by the Court of Appeal. 

2.        We have considered what the starting point for this offence ought to be and we think that the starting point is correctly taken by the Crown at 8 years.  We note that the Crown does not distinguish between the two of you and we also note that Mr Ahmed was responsible for bringing these drugs into the Island in the first place. 

3.        I want to say something about the mitigation which has been offered on behalf of you both.  First of all Mr Ahmed.  We have taken into account that you have pleaded guilty and that there was some value in that plea because the drugs were not actually found on you although they were found in your room at the hotel and you were holding the key to the room.  We take into account that you have no previous convictions and we note your letter of remorse that you have written to the Court.  We have read all the references which have been put before us and we have listened carefully to all that your counsel has said.  As to your youth, the legislature distinguishes between those who are aged under 21 and those who are aged over 21 in relation to the sentencing powers of the Court, and we say that because at the age of 21 frankly you ought to have known better but nonetheless you were only 21 at the time these offences were committed and the Court does take that youth into account in deciding on the appropriate sentence.  As to threats which you say were made against you, there is a long standing authority in this Court that we do not take threats into account as a matter of policy.  This is for two reasons; the first reason is to send out the message that those who get close to drug dealers do so at their own risk and one has to expect the possibility of threats if you then do not do what you are requested to do.  In that connection I add that we have looked carefully at the explanation which you gave to the Probation Office and which is set out at paragraphs ten to twelve of the Social Enquiry Report as to the circumstances which led up to your becoming aware, you say, that you were being asked to bring drugs to the Island.  I regret to say the Court does not find that explanation to be credible.  The second reason that the Court pays no attention to the question of threats is because the assertion that the threats have been made is one that is usually almost impossible to verify.  So the Court does not take into account, as mitigation, the threats which you claim have been made against you. 

4.        In the circumstances the sentence of this Court is that you will be sentenced to 4 years' imprisonment.  We have allowed a little extra for the mitigation because, having given you a discount for your guilty plea, we think the Crown had not allowed enough in respect of youth and your absence of previous convictions and so you are sentenced to 4 years' imprisonment on Count 1. 

5.        Mr Harris, the starting point for you is also right at 8 years' imprisonment and we take into account the guilty plea, which we agree is a valuable guilty plea and for which you are entitled to credit, but there does seem to us to be very little other mitigation.  You have a poor record including previous offences in drug trafficking and you know perfectly well what the policy of this Court is in relation to these offences.  However, your counsel has made a plea on your behalf that you need to have some hope or encouragement extended to you and for that reason only the Court is prepared to allow 6 months off the conclusions which the Crown has moved for and you are sentenced to 5 years' imprisonment.  At the end of the day it is your decision entirely as to whether you continue down this life of dealing in drugs and frankly, if you do continue, you can expect the sentences to get worse and longer and that is within your control.  In the course of serving your sentence you will have many opportunities given to you to help cure yourself of any addiction which you have and the Court would certainly suggest that you try and take them. 

6.        You are sentenced to 5 years' imprisonment on Count 1.  In relation to the possession of cannabis, the Crown's conclusions are granted and 1 week concurrent, so that makes a total of 5 years' imprisonment. 

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

Authorities

Rimmer-v-AG [2001] JLR 373.

Camacho-v-AG [2007] JLR 462.