Jersey Unreported Judgments

[2011]JRC154

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-

Anthony Derek Deadman

Peter Douglas Hall

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 27^th May, 2011, following guilty pleas to the following charges:

Anthony Derek Deadman

1 count of:

Attempting to commit a statutory offence (namely the fraudulent evasion of the prohibition on the importation of a controlled drug, namely diamorphine (heroin), contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 and contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 1).

Age:  42.

Plea: Guilty.

Details of Offence:

In February 2011 Deadman and Hall travelled down by car from Gateshead to Weymouth and then by ferry to Jersey.  Between them they imported 79.1 grams of powder concealed internally which they believed to be heroin.  Deadman had concealed three packages containing 40.3 grams, Hall concealed three packages containing 38.8 grams.  The street value of the powder was £79,000.  Both had carried out the importation under threat from a drug dealer to whom they owed money.  Deadman had been lent £1,600 to purchase the car they travelled in and for travel and accommodation expenses.  All debts were to be expunged in return for the importation.  Both feared for their own safety if they had not agreed to participate, Deadman also feared for safety of family members to whom he was close. 

Indicted under Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 because analysis of the powders had shown that although diamorphine was present it was close to the limit of detection and was "less (and perhaps much less) than 1%" by weight.  Prosecution able to proceed on basis of what the defendants believed they were doing.  Statement from expert witness maintained powder would still have been sold on street as heroin.  Financial report concluded that Deadman had benefited from drug trafficking to the extent of £1,600 and had distrainable assets of £255.

Details of Mitigation:

Admitted offence before he produced packages, cooperative during interview save with regard to naming organiser.  Guilty plea on first presentation in lower court (at which time charged under Article 61(2)(b) of the Customs and Excise (Jersey) Law) 1999 maintained throughout.  Documented history of Post Traumatic Stress Disorder following near-fatal stabbing leaving physical and mental scarring, associated psychiatric illness.  Historic convictions of generally minor nature, none for drugs offences and no previous custodial sentence.  Single, long-term invalidity/employment. 

Previous Convictions:

Historic convictions of a minor nature; 15 year break between 1990 and 2005 and nothing during the last 5 years and none for drugs. 

Conclusions:

Count 1:

Starting point 8 years.  4½ years' imprisonment.

Forfeiture and destruction of the drugs sought. 

Confiscation Order in the sum of £255 sought. 

Sentence and Observations of Court:

The Court took the view that in this very unusual case it was not appropriate to apply the Rimmer guidelines due to the nature of the powder, nonetheless the attempt warranted a custodial sentence. 

Count 1:

2 years' imprisonment.

Forfeiture and destruction of the drugs ordered. 

Confiscation Order in the sum of £255 made. 

Peter Douglas Hall

1 count of:

Attempting to commit a statutory offence (namely the fraudulent evasion of the prohibition on the importation of a controlled drug, namely diamorphine (heroin), contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 and contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 1).

Age:  21.

Plea: Guilty.

Details of Offence:

See Deadman above.

Details of Mitigation:

During interview gave "no comment" to majority of questions relating to the importation of the powders but admitted drug use and alleged that he had a problem with alcohol.  Guilty plea entered in lower Court, maintained thereafter.  Still enjoyed the benefits of youth to some degree although not of good character.  Single, unemployed, lived with Deadman who treated him as "nephew" although no blood relationship. 

Previous Convictions:

Thirteen convictions for twenty one offences between 2005 and 2011 including possession of Class B drug; was subject of a six week suspended sentence and a 40 hour Community Service Order imposed by Gateshead Magistrate's at time of offence. 

Conclusions:

Count 1:

Starting point 8 years.  4 years' imprisonment.

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

The Court took the view that in this very unusual case it was not appropriate to apply Rimmer guidelines due to the nature of the powder, nonetheless the attempt warranted a custodial sentence. 

Count 1:

18 months' imprisonment.

Forfeiture and destruction of the drugs ordered. 

Miss E. L. Hollywood, Crown Advocate.

Advocate J. W. R. Bell for Deadman.

Advocate J. N. Heywood for Hall.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for the offence of attempting to commit a statutory offence, namely the prohibition on the importation of heroin. 

2.        The facts are that between you, because it is a joint charge, you brought into the Island, internally secreted in condom wrapped packages, some brown powder which you believed was heroin.  From Mr Deadman was recovered a total of 40.3 grams, from Mr Hall a total of 38.8 grams.  The expert who analysed the material has found that the powder contained traces of diamorphine.  When asked what he meant by that he said:-

"The level of diamorphine was close to the limit of detection for our identification method.  I have not attempted to measure the level because it is below the range within which our validated methods can give reliable results.  The data obtained suggest that it is less (and perhaps much less) than one percent." 

3.        The Crown has asked us to apply the Rimmer guidelines.  Those guidelines are designed to tackle the evil which is the importation of Class A drugs into Jersey.  It is the Court's policy, in relation to trafficking in drugs, to impose a custodial sentence and in the case of Class A drugs a lengthy custodial sentence.  And that policy is well settled. 

4.        This case, however, is very unusual.  It is unusual because one can barely describe the powder as containing heroin, as the amount is not sufficiently great as can be measured.  In the Court's view it is not appropriate to apply the Rimmer guidelines to this case.  This is not because all attempts fall into the category where the Rimmer guidelines will not apply, but it is because in this case there was an attempt to import heroin which in fact was of such low purity that the amount is not measurable.  Nonetheless, at the end of the day the fact remains that you did try to bring in heroin into this Island.  You took all steps within your power to bring that heroin in and for that it is right that you should be sentenced, and the Court takes the view that a custodial sentence is the correct sentence to impose. 

5.        We have taken account of everything that your two counsel have said and were it not, Mr Hall, for your youth, you would have received the same sentence as Mr Deadman. 

6.        Mr Deadman you are sentenced to 2 years' imprisonment. 

7.        Mr Hall you are sentenced to 18 months' imprisonment.  The 6 months difference takes account of the fact that you are so much younger and indeed to some extent Mr Deadman because you had your young colleague with you, you carry some responsibility for getting him in trouble as well. 

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

Authorities

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

AG-v-Hasson [2004] JRC 036.

AG-v-Hasson [2004] JLR N7.

Hasson-v-AG [2004] JLR N33.

Hasson-v-AG [2004] JCA 124.

R-v-Mohammed Afzal and Mohammed Arshad (1992) 13 Cr. App. R. (S) 145.

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

AG-v-Ahmed and Harris [2010] JRC 230C.