Jersey Unreported Judgments

[2011]JRC152

Royal Court

(Samedi)

1 August 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Clapham, Fisher, Nicolle, Milner and Olsen.

The Attorney General

-v-

David Armstrong

Mohammed Abdul Shahnowaz

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 17^th June, 2011, following guilty pleas to the following charges:

David Armstrong

2 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 and 2).

Age:  52.

Plea: Guilty.

Details of Offence:

On Tuesday 14^th December 2010 Armstrong was stopped by Customs and Immigration Officers arriving from London Gatwick.  He subsequently produced two condom wrapped packages containing 132.5 grams of diamorphine (heroin) and 13.7 grams of cocaine.  Armstrong was subsequently charged with importation.

An examination of Armstrong's telephone revealed numerous calls of a brief duration had been made between Armstrong and Shahnowaz in the lead up to Armstrong's travel to Jersey.  During the time that Armstrong was in custody Shahnowaz made several attempts to contact him by mobile and landline.

On Thursday 30^th December a search warrant under art 19(2) of the Misuse Of Drugs (Jersey) Law 1978 was served on Shahnowaz's home and numerous drugs related items were seized along with £1,037 in cash.

Shahnowaz was arrested and in interview admitted using between one and two £50 bags of heroin per day.  Shahnowaz had not worked for a number of years and was in receipt of £226 per week in benefits out of which he paid £165 in rent. Shahnowaz was subsequently charged with importation.

Financial analysis of Shahnowaz's bank accounts showed that in the period between 31^st August 2010 and 20^th October 2010 £6,570 had been deposited in an account held solely by him and £1,527 into an account that he jointly held with his daughter.

Details of Mitigation:

Guilty plea however he had little choice other than to do so.  The Defendant co-operated but did not have the benefit of youth.  No drug related convictions.  The crown accepted that his role was that of a "courier".  He was remorseful and had a large number of family dependants.  References were provided to the court.

Previous Convictions:

24 convictions for 40 offences only one of which was for drugs (historic).

Conclusions:

Starting point 11 years.

Count 1:	7 years' imprisonment.
Count 2:	7 years' imprisonment, concurrent.

Total: 7 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Confiscation Order in the sum of £125 sought.

Sentence and Observations of Court:

The court took a starting point of 10 years. The court did not apply a full discount for the guilty plea as this was seen as inevitable in the circumstances. The court took into account the defendant's references, co-operation, ill health and the delay.

Count 1:	6 years' imprisonment.
Count 2:	6 years' imprisonment, concurrent.

Total: 6 years' imprisonment.

Forfeiture and destruction of the drugs ordered.

Confiscation Order in the sum of £125 ordered.

Mohammed Abdul Shahnowaz

2 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 and 2).

Age:  37.

Plea: Guilty.

Details of Offence:

See Armstrong above.

Details of Mitigation:

Guilty plea (albeit at a late stage) recognised by the crown and a full third credit was given.  No other mitigating factors.

Previous Convictions:

9 previous drugs convictions between 2001 and 2006.

Conclusions:

Starting point 11 years.

Count 1:	7 years' imprisonment.
Count 2:	7 years' imprisonment, concurrent.

Total: 7 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

The court took a starting point of 11 years.  The court had regard to Rimmer and Valler but declined to apply an uplift.  Full discount was granted for the guilty plea and credit was given for other mitigating factors.

Count 1:	7 years' imprisonment.
Count 2:	7 years' imprisonment, concurrent.

Total: 7 years' imprisonment.

Forfeiture and destruction of the drugs ordered.

C. M. M. Yates, Esq., Crown Advocate.

Advocate J. W. R. Bell for Armstrong.

Advocate O. A. Blakeley for Shahnowaz.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on two counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs.  The facts are that you, Mr Armstrong, brought in with you, in your underpants, 132.5 grams of heroin and 13.7 grams of cocaine.  You were to be met by Mr Shahnowaz.  There was an amount of telephone billing and other telephone information which links the two of you and a man called Abbo, who it is thought arranged for the drugs to be provided to you. 

2.        Mr Armstrong you were immediately cooperative with the customs officials who found you.  You entered a guilty plea at an early stage. 

3.        Mr Shahnowaz, you did not enter a guilty plea immediately, but you did enter that plea at the pre-trial hearing and hence appeared before us today.  It is right to say straight away that a letter to the Court, which you sent as part of your mitigation says this "even though I have pleaded guilty to the current charge, I did not know about the drugs.  I believed that a man was only coming to collect debts and I agreed to help because I had a car and was happy to do this as a favour for financial gain.  I am guilty as far as making the phone calls."  Through your counsel you have told us that we are to disregard that statement and that you did in fact know that there was a drug element.  The statement "I did not know about the drugs", your counsel said, is to be ignored; and although there was, it is said, an involvement with a person who was to be collecting debts, it is conceded that although you did not know the type or destination of the drugs, you knew that drugs were being imported.  That is the position which you have put to us through your counsel. 

4.        The first point we need to decide is that of the starting point.  The Court applies the Rimmer Guideline to the question of starting point, that is to say we look at the total amount of drugs which have been imported, the weight of the drugs is the primary matter we take into account, and then also we have regard, as we are charged to by Rimmer, with an assessment, as far as we can, of your respective involvement in the drug trafficking.  The Crown has taken what is called a Valler uplift, of 1 year.  We decline to apply Valler in that way because, in our view, the right approach is to look at the quantity of drugs involved and the additional cocaine does not justify putting the starting point up.  Put another way, had the cocaine been a comparable amount of heroin we would be dealing with a total of heroin that is in the same bracket without the Valler uplift; and we will fix the starting point on that basis. 

5.        In our view the starting point for Mr Shahnowaz is 11 years.  We take into account the total amount of drugs by weight, of 145 grams or so.  We take into account the fact that there was an amount of drugs paraphernalia in your premises - a set of electronic scales, citric acid swabs, a black sharps box, a syringe and needle, a roll of silver foil, a syringe wrapper and alcohol wipe, plastic wrapping and a burnt spoon containing traces of diamorphine and pieces of kitchen roll.  It is clear that that paraphernalia might be present were you simply a drug user, but it is also consistent with being a drug trafficker.  We take into account that you have knowledge of the local scene.  We take into account that you have ensured that your mobile telephone is not available to the Police for inspection.  We take into account the fact that you sought to lie to us in the letter which you put before the Court.  And we take into account that you have two previous convictions for drug trafficking, one in 2003 and one in 2006.  We have taken into account all of those matters.  We do not take into account, although the Attorney General's statement does justify it, the financial transactions which are set out in the Attorney General's statement and although the amount of benefit is said to be disputed we noted that the financial transactions as detailed show that a substantial amount of cash, perhaps coincidentally roughly an amount equating to the wholesale value of the drugs in London, went out of your bank account between the end of August and the middle of October of last year.  As I say we reach our conclusions not taking the financial transactions into account, although they are noted.  As far as you are concerned, we take a starting point of 11 years. 

6.        Mr Armstrong we have decided to take a starting point of 10 years for you.  This is reflective of the fact that there was a substantial amount of drugs, which would normally lead to a starting point of 11 years, but we think that your involvement was very minor in the importation, other than the importation itself; that you were not the person who was to be involved with distributing the drugs once they arrived in the Island and accordingly we draw that distinction between you and your co-accused. 

7.        It is then a question of deciding what mitigation ought to be allowed against those two starting points. 

8.        Mr Shahnowaz we give you a full discount for your guilty plea and we think that there is little other mitigation, but to the extent that it is there we give credit for it.  We sentence you, therefore, to 7 years' imprisonment in accordance with the Crown's conclusions, concurrent on each count.  I hope that you will be able to use that time in prison to ensure that you do rid yourself of your addiction to heroin and that will be the start of rebuilding your life when you emerge. 

9.        Mr Armstrong as far as you are concerned we do not think that you are entitled to a full discount for the guilty plea because that plea followed almost inevitably from the fact that the drugs were found on you.  But we have taken into account the fact that you have no previous drugs convictions apart from the conviction for cannabis possession which was a long time ago and that bears with us not at all.  We have taken into account the references which you have supplied, of course we have given you some discount for your guilty plea and for your cooperation with the customs' officers.  We have certainly taken into account the ill health which you have suffered since the shooting incident in 2001 and the delay which you have had to put up with while the stress of these proceedings for the last 8 months or so.  Rolling all those things together we think the right sentence is one of 6 years' imprisonment on each count, concurrently, and we sentence you accordingly. 

10.      We order that the drugs be forfeited and destroyed. 

11.      The Confiscation Order in relation to Mr Shahnowaz is postponed for a date to be fixed. 

Authorities

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

Valler v AG [2002] JLR 383.