Jersey Unreported Judgments

[2011]JRC153

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-

Andres Blanco

Paul Anthony Breese

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10^th June, 2011, following guilty pleas to the following charges:

Andres Blanco

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:  42.

Plea: Guilty.

Details of Offence:

Count 1: In November 2010 Blanco travelled to the Island via Gatwick, from his home in Spain and imported 98.07 grams of heroin in the packages, carried internally, with an average purity of between 14% and 15% by weight of diamorphine and a street value of £98,050.  He had visited the Island in August 2010 when he was introduced to Breese.  Blanco alleged he had been given £3,000 before leaving the Island, having agreed to courier drugs into the Island at a later date, and that he expected to receive a further £5,000. 

Breese met Blanco and his girlfriend at the airport and drove them to the Hotel Ambassadeur where he arranged their accommodation before driving off.  Blanco was arrested at the hotel a short while later.  Breese returned to the hotel and as he drove into the car park saw Blanco being put into a police van, so turned back onto the main road and then into the nearby Marks and Spencer car park, from which he attempted to leave on foot but was caught by police officers who arrested him on suspicion of being concerned in the importation of controlled drugs. 

Analysis of the mobile phone records showed no direct contact between Blanco and Breese but that both had been in contact with the same third party on a Spanish mobile number. 

Breese consistently denied being involved in the importation of heroin during questioning, pleaded not guilty on Indictment and changed plea to guilty at a very late stage. 

Count 2: Following the arrest of Breese a search was made of his hoime address and various items were seized including a set of digital scales and two lumps of cannabis resin weighing a total of 2.3 grams, street value £13.

Count 3: Breese had been disqualified from driving in Jersey in 2004 and had not taken a test since.  Claimed an Irish driving licence he had obtained was valid. 

Details of Mitigation:

Candid in his admissions.  Had become unemployed in Spain when his young girlfriend fell pregnant, desperate for money and had let it be known that he "would do anything" to get money.  An Englishman he knew in Spain brought him over to Jersey and introduced him to Breese.  ON his return to Spain he had been given the drugs to bring to Jersey.  Was not sure what he was importing but believed it to be Class A drug in powder form.  High level of cooperation and had indicated that he was prepared to give evidence for the prosecution at Breese's trial. 

Previous Convictions:

Two previous convictions in Spain between 2006 and 2007 for two offences, one of which involved drugs for which it appears he received a suspended sentence. 

Conclusions:

Count 1:

Starting point 10 years.  4 years' imprisonment.

Forfeiture and destruction of the drugs sought. 

Confiscation Order in the nominal sum of £1 sought. 

Recommendation for deportation sought. 

Sentence and Observations of Court:

Drugs carried internally so not entitled to full 1/3 discount for guilty plea but very material mitigation of cooperation and willingness to give evidence for the prosecution which accounted for the substantial percentage discount.

Count 1:

Starting point 9 years.  4 years' imprisonment.

Forfeiture and destruction of the drugs ordered. 

Confiscation Order in the nominal sum of £1 made. 

Recommendation for deportation made. 

Paul Anthony Breese

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).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 3).

Age:  46.

Plea: Guilty.

Details of Offence:

See Blanco above.

Details of Mitigation:

Guilty plea, although at a very late stage in the proceedings and on a limited basis.  Break in offending, having not been convicted of any offence for the last seven years. 

Previous Convictions:

Seventeen previous convictions between 1982 and 2004 for twenty-five offences, five drug related culminating in 1997 sentence of 4½ years' imprisonment, following a Newton hearing, for importation of heroin. 

Conclusions:

Count 1:	Starting point 9 years.  7 years' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.

Total: 7 years' imprisonment. 

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

Full 1/3^rd discount for guilty plea, had been entitles to maintain not guilty plea, further discount for the other mitigation available to him.  Sentenced on his version of events. 

Count 1:	Starting point 9 years.  5 years' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.

Total: 5 years' imprisonment. 

Forfeiture and destruction of the drugs ordered. 

Miss E. L. Hollywood, Crown Advocate.

Advocate J. C. Gollop for Blanco.

Advocate J. W. R. Bell for Breese.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are jointly charged with the offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin.  Mr Breese also is charged with two other counts which I will not deal with in any great detail. 

2.        The facts are that on the 2^nd November Mr Breese received a text message from a Spanish mobile telephone number indicating that "Hello my pal will be with u 2moro on that building work so be ready.  Take care."  The following day Mr Breese received a further text message from the same number saying "Any chance of picking me pal up at 5".  During that afternoon of the 3^rd November, Mr Breese then collected Mr Blanco and his girlfriend from the arrivals department at the airport and drove them to the Hotel Ambassadeur.  The three entered the hotel and Mr Breese requested a room for the couple before going back out to his car and driving away.  A little later Mr Blanco was arrested on suspicion of being concerned in the importation of controlled drugs into Jersey and cautioned.  He made no reply.  He was subsequently interviewed and later on that day he advised officers that he had an urgent need to use a toilet.  It turned out that he was carrying internally 10 suspect packages wrapped in condoms, which turned out to contain heroin.  In the course of arresting him, the police, having attended at the hotel, noted that Mr Breese had turned up driving a car.  He was pulling into the hotel and on, apparently, seeing the police present he took evasive action, swerved back onto the road and drove off in the direction of Green Island.  He was subsequently arrested on suspicion of being concerned in the importation of controlled drugs and cautioned, to which he made no reply.  He was then further arrested on suspicion of driving whilst disqualified and again cautioned to which he also made no reply. 

3.        The amount of heroin which was physically imported into the Island by Mr Blanco was 98.07 grams, the heroin was analysed as having a purity of being between 14 and 15% by weight and a street value in the Island of £98,050.

4.        The Court has found the approach to sentencing on this case difficult because the Crown has adopted an approach to these two co-accused which is, in our view, inconsistent.  The Crown has treated Blanco as a man to be a mere courier who nonetheless imported drugs for financial gain.  He claims to have been paid £3,000 by Mr Breese with a promise of £5,000 to come.  In addition to his other mitigation the Crown says that he has special mitigation for having given a witness statement and being prepared to give evidence against his co-accused Mr Breese.  The witness statement which he made was passed up to the Court by Mr Blanco's counsel and the evidence that that statement contains puts the co-accused, Mr Breese, at the heart of the importation, in the sense that he commissioned it by asking whether Mr Blanco would import hashish and that he paid for Mr Blanco's services.  Despite this, the Crown has accepted a plea of guilty from Mr Breese which is, in our view, obviously inconsistent with the statement which Mr Blanco has made. 

5.        The detail of those factual circumstances which the Crown accepted in relation to Breese, are as follows.  Mr Breese met Mr Blanco, together with a man called John, in Jersey in August 2010 at the Ambassadeur Hotel.  He had no further communications with Mr Blanco following that meeting.  He neither provided nor intended to provide any money to Mr Blanco; and he did not source or assist in sourcing the drugs given to Mr Blanco in Spain.  When he collected Mr Blanco from the airport, Mr Breese knew that an operation was taking place where Mr Blanco might be importing drugs and Mr Blanco did import drugs as expected by Mr Breese.  However Mr Breese did not know the quantity or type of drug that Blanco imported.  He collected Mr Blanco at the airport, and took him to the Ambassadeur Hotel, but he had no knowledge of whom Mr Blanco was supposed to meet in Jersey after his arrival.  So quite distinct from being at the heart of the importation, the basis upon which Mr Breese tendered his plea of guilty, which the Crown accepted, was that in effect Mr Breese was to be a taxi driver for Mr Blanco. 

6.        Perhaps more thought should have been given by the Crown to the consequences of accepting a plea on this basis.  On the basis that there has been, to say the least, some uncertainty as to the facts, two Jurats were of the view that the sentence for both accused should be the same because it was simply impossible to distinguish between them.  The majority, however, have approached it in a different way and have given both accused the benefit of everything which might individually be said for either of them, even though it is inconsistent to do so.  We have, therefore, proceeded on the basis of what we know by way of hard facts.  The hard facts are that 98 grams of heroin have been imported into the Island.  Physically imported by Mr Blanco, and Mr Breese knowingly participated in that importation, in the way in which he has set out in the email to which I have referred and which the Crown have accepted.  The other hard fact which is relevant is that some 3 months before the importation Mr Breese and Mr Blanco and a third man called John, who may well be responsible for providing the drugs, had a meeting in Jersey at the Ambassadeur Hotel. 

7.        In the light of those facts the majority have taken a starting point in respect of both accused of 9 years.  Applying the Rimmer guidelines, the weight of the drugs puts the importation between 9 and 11 years as the starting point.  The starting point could arguably have been higher for either of them if the assumptions had not been made to give them the benefit of everything which might individually be said for either of them.  So we have taken the lower starting point for both of them at 9 years. 

8.        The mitigation which has then been applied is as follows. 

9.        In the case of Mr Blanco he has a guilty plea, but he was caught with the drugs internally and therefore the guilty plea does not carry a full discount.  He has cooperated with the police officers from an early stage.  And he has other mitigation available to him, the references which we have seen, his letter expressing remorse, and indeed all the material which has been mentioned by his counsel in his mitigation address to us.  But most importantly Mr Blanco has, by way of mitigation, the fact that he was prepared to give evidence against his co-accused at trial.  In the circumstances that is very material mitigation indeed, the Court is able to reduce the sentence from the starting point of 9 years to impose a sentence of 4 years' imprisonment.  We very much pay heed to the case of AG-v-Le Pavoux and Baumgartner [2003] JRC 075 and the case of AG-v-Hume and Others [2006] JRC 076 which were referred to by the Crown in emphasising that it is in the public interest that those who are brought to justice give information to the police and are prepared to give evidence to Court which is why Mr Blanco receives such a substantial discount from the sentence which would otherwise have been imposed. 

10.      As far as Mr Breese is concerned we start with the starting point of 9 years' imprisonment and apply a full discount for purposes of the guilty plea.  We accept that although it came late the accused has the benefit of the full discount because he was entitled to maintain the not guilty plea until such time as the Crown accepted the basis of the plea which he was prepared to make.  We take into account the other mitigation which is available to him, such as it is, including his letter to the Court and everything which his counsel said on his behalf.  In the circumstances we arrive at the sentence which we are going to impose on Mr Breese which is 5 years' imprisonment in respect of Count 1.  You are sentenced to 2 weeks' concurrent on Count 2, which is the possession of cannabis; and 2 weeks' concurrent on Count 3, which was driving without a licence. 

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

12.      The last matter which arises is the request by the Crown for a recommendation for deportation in respect of Mr Blanco.  In that respect we apply the test which has been set by this Court previously in Camacho-v-AG [2007] JCA 145.  It is a two-part test and the first part of it is to ascertain whether Mr Blanco's continued presence in Jersey is to the Island's detriment.  In those circumstances we take the view that the nature of this offence, the importation of heroin into the Island, is clearly one which justifies the conclusion that his continued presence in the Island would be detrimental to us.  The second part of the test involves a human rights consideration as to whether the deportation will cause hardship to innocent persons.  Having noted that this is not an Island with which he has any substantial connection, the Court has no doubt that the second part of the test is also passed, Mr Blanco has no links to the Island.  In the circumstances the Court is prepared to make a recommendation for deportation. 

13.      Mr Blanco you are sentenced to 4 years' imprisonment. 

14.      Mr Breese you are sentenced to 5 years' imprisonment. 

Authorities

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

AG-v-Le Pavoux and Baumgartner [2003] JRC 075.

AG-v-Hume and Others [2006] JRC 076.

Camacho-v-AG [2007] JCA 145.

Hamilton & Owens-v-AG [2010] JCA 136A.