Jersey Unreported Judgments

[2011]JRC172

Royal Court

(Samedi)

31 August 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Morgan, Fisher, Milner and Liddiard.

The Attorney General

-v-

Peter Ian McDonald

Lynette Steele

Christopher John Bernard Owens

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

Peter Ian McDonald

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:  39.

Plea: Guilty.

Details of Offence:

On 11^th March, 2011 Owens travelled by air to Jersey from Liverpool.  He was stopped at customs and questioned.  He claimed that he was in the Island to look for work and gave the number of a local contact.  After x-rays proved negative for suspicious packages he was released.

The same day McDonald and Steele (who are partners) travelled together from Liverpool to Jersey via the ferry from Portsmouth.  McDonald was carrying five packages internally containing a total of 89g of heroin with purities of between 17% and 19% diamorphine.  Steele was carrying a single package containing 29.9g of heroin with a purity of 21% diamorphine.

In interview McDonald admitted that he had imported five packages and encouraged Steele to import the sixth.  He knew the packages contained drugs, but thought it was ecstasy.  He had done this to pay off a drugs debt - part of which was "inherited" from a third party.  Threats had been made against his family. 

McDonald told the officers that Steele had not been present when he was given the drugs and that he was given £600 cash to pay for the trip.  McDonald had been told to contact someone in the UK by text who would arrange for the drugs to be collected.  The number was saved in Steele's phone as "MP".  He later gave the identity of "MP" as "Mark Parr" and gave a description of both him and his car (this information was repeated in open court).

Steele told officers that she had initially been told by McDonald that the trip to Jersey was a holiday and had only been given the drugs shortly before leaving Liverpool.  She knew the package contained drugs, but did not know what type.  Steele later claimed to report preparers that she had been given the drugs on the ferry shortly before arrival in Jersey.

Further enquiries were carried out, following which Owens was arrested at the Airport Departures Lounge.  In interview he repeated his earlier claim that he was in Jersey to search for work, but admitted that he had not done so.  He told the officers that he had arranged for two people to import some herbal cannabis for him to use whilst he was in the Island.  He denied all knowledge of the heroin.

Following his first appearance in the Magistrate's Court, Owens asked to speak to a Customs Officer.  He was cautioned and made a number of unsolicited comments, including "I suppose next time I have to use non-Scousers, don't I?" and "there was no weed - all he did have was the heroin to give to me".  Owens claimed in report that his role was to collect £18,000 payment for the drugs.

Details of Mitigation:

Guilty plea (though inevitable given internal concealment).  Cooperative with Customs and named supplier in open court.  Difficult background and tragic deaths of two of his seven children in the last five years.  Remorse for involving Steele in the importation.  High risk of re-offending.

Defence accepted the Crown's starting point and conclusions were fair and did not urge a reduction

Previous Convictions:

16 convictions for 32 offences, mainly of dishonesty.  Single drug related charge of possession of cannabis in 1995.  Last offence in 2004.

Conclusions:

The Crown submitted a distinction should be made between McDonald and Steele, who were mules, and Owens who was involved in the organisation of the importation.

Count 1:

Starting point 10 years' imprisonment.  4 years' imprisonment.

Confiscation Order in the nominal sum of £1 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Conclusions granted.

Lynette Steele

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:  33.

Plea: Guilty.

Details of Offence:

See McDonald above.

Details of Mitigation:

Guilty plea (though inevitable given internal concealment).  Cooperative with customs.  Low risk of re-offending.  Suffering from depression that affected her ability to make decisions.  Vulnerable and manipulated into importation by McDonald.  Involvement came late in the process and obtained no benefit.  Difficult and abusive upbringing.  Two daughters who now lived with relatives.  Remorse.

 

Defence urged the Court to treat this as an exceptional case that justified going below the Rimmer guidelines, suggesting a starting point o 9 years and final sentence of 3 years.

Previous Convictions:

Police caution for shoplifting.  Treated as of good character.

Conclusions:

The Crown submitted a distinction should be made between McDonald and Steele, who were mules, and Owens who was involved in the organisation of the importation.

 

Count 1:

Starting point 10 years' imprisonment.  4 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

It is possible to depart from the Rimmer guidelines in the case of Steele as there are exceptional circumstances.

Count 1:

Starting point 9 years' imprisonment.  2½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

Christopher John Bernard Owens

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:  28.

Plea: Guilty.

Details of Offence:

See McDonald above.

Details of Mitigation:

Guilty plea (which had greater value due to lack of direct evidence).  Has learning difficulties, ADHD and Asperger's Syndrome.

 

Defence urged the Court to reduce the starting point to 10 years and give more credit for mitigation.  Stated that Owens wrongly believed that collecting money would not put him at risk of prosecution.

Previous Convictions:

17 convictions for 40 offences including four drug offences.  In May 2009 received sentences of three years, concurrent, on two counts of possession with intent to supply Class A drugs.

Conclusions:

The Crown submitted a distinction should be made between McDonald and Steele, who were mules, and Owens who was involved in the organisation of the importation.

Count 1:

Starting point 11 years' imprisonment.  6 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Owens was closest to the importation and it was a commercial arrangement.  The Crown's Conclusions were generous, but the sentence would not be increased.

Conclusions granted.

Miss E. L. Hollywood, Crown Advocate.

Advocate A. D. Field for McDonald.

Advocate A. J. Clarke for Steele.

Advocate M. V. Cook for Owens.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 11^th March this year the three of you arrived from the United Kingdom.  You all come from Liverpool, two of you arrived on the boat from Portsmouth and one from Liverpool by air.  Mr McDonald you were carrying on you, concealed internally, five packages containing 89 grams of heroin; Miss Steele you were carrying on you, in your leggings, one package containing 29.9 grams of heroin; Mr Owens you were not carrying any of the drugs yourself but you have pleaded guilty to being knowingly concerned in the importation of the heroin and in particular at an interview with Customs officers, you made two comments which show, in the Court's view, your considerable involvement in that exercise.  The first of those comments was "I suppose next time I have to use non-scousers don't I?" which puts you very much at the heart of the importation and secondly, although you have said that your only involvement was the financial involvement, you said at the time "there was no weed, all he did have was the heroin to give to me". 

2.        The Court has to follow the guidelines set out in Rimmer as to an assessment of the starting point.  It is a joint charge and each of you carries responsibility in law for the full amount of the drugs which are imported.  However, the quantum of the drugs is not in the charge and it is open to the Court depending on an assessment of the facts to proceed to sentence on the basis of a different responsibility for a different quantum of drugs.  Sometimes, perhaps on most occasions, the defendants will carry joint responsibility for the whole.  On other occasions there may be different levels of responsibility and indeed this is because the Court has made an assessment of the involvement of the defendant in drug trafficking as the case of Rimmer requires us to do. 

3.        The Court is satisfied that having regard to the quantum of drugs which has been imported the right starting point for Mr McDonald is 10 years' imprisonment, as indeed the Crown has moved.  That gives a proper assessment of his involvement in drug trafficking of this quantum of drugs. 

4.        The Court considers that it is possible to depart from the band of 10-13 years in the case of Miss Steele.  We have regard to the remoteness of the involvement as Mr Clarke has suggested; the shortness of time between that involvement and the arrest and in particular the lack of benefit which Miss Steele derived from the importation.  The Court accepts the submissions of her counsel that this was a case where she made a mistake in carrying out her part of the importation in circumstances where she was put under some pressure by her partner, Mr McDonald.  Nonetheless, the Court has no doubt that Miss Steele was aware that the drugs were being imported and that her partner was importing drugs as well, and it is clear that there was a connection between her and the supplier if only through the Facebook connection, which has been mentioned in the summary.  In the circumstances the Court takes a starting point of 9 years in respect of Miss Steele.

5.        As far as Mr Owens is concerned, the Court takes the view that he was closest to the organisation and the supply.  I have already mentioned the comment "I suppose next time I have to use non-scousers don't I".  It is clear from the other comments that you knew that it was heroin that was being imported; your counsel accepts that it was, as far as you were concerned, a commercial arrangement and you were conducting this importation for money; although it is said that you expected to collect the money and would only be paid £2,000, out of which you were to get your expenses; the comment, and I quote from what you said to Customs officers, "all he did have was the heroin to give to me" suggests that it is clear that you were going to be involved in the onward passage of the heroin in Jersey.  Furthermore it is right to say that if the supplier of the drugs from Liverpool did not get his money back to him, then he would not wish to supply the drugs in the first place, and therefore you carry prime responsibility, on your own story, for being prepared to take the money back to him.  The Court therefore considers that there ought to be a distinction between the starting points for you and for Mr McDonald and we therefore think the Crown's proposed starting point of 11 years is correct in your case. 

6.        Now we have had careful regard to the mitigation which has been advanced for each of you.  We take account of all the things which have been said on your respective behalves. 

7.        Mr McDonald, we take account of your guilty plea and accept that you should have some credit for that, although you were found with the drugs concealed internally and so you are not entitled to a full discount on that account.  Nonetheless you should have credit for that plea.  We certainly take into account the cooperation which you have given to Customs and we note that you have been prepared to name the supplier and indeed, have named him in open Court today.  That is a substantial piece of mitigation which goes in your favour and the Court has always made it plain that where a person cooperates in this respect, substantial credit will be given. 

8.        In the circumstances and taking into account everything your counsel has said, including your remorse and your letter to the Court, your family losses, and all the material before the Court, the Court considers that the appropriate sentence is as moved for by the Crown, namely 4 years' imprisonment and we sentence you to 4 years' imprisonment accordingly on this charge. 

9.        Miss Steele the Court takes the view that there was a considerable amount of mitigation in your case.  We have had regard to everything which your counsel has said.  We have noted that you are of good character, which particularly stands to your credit, given the difficulties that you have had with your upbringing and we take into account that you have committed this offence very largely on misguided reasons in support of your partner.  That was a serious error of judgement.  Of course we have taken into account what the Psychologists have to say about that which influenced you at the time. 

10.      Having regard to all that mitigation, we think the right sentence is 2½ years' imprisonment and we sentence you to that amount. 

11.      Mr Owens, the Crown has concluded that you should have 6 years' imprisonment.  You have previous convictions for the possession of the drugs with intent to supply and although we give you the full one third discount as credit for your guilty plea, there is, in our view, relatively little other mitigation on which you can rely.  We have certainly taken into account what your counsel has said, of the difficult upbringing that you have had and the efforts that you have been making in prison and we have had regard to the letters which have been passed up to us, but nonetheless it appears to us that you were, as we have said, right at the heart of this importation and in the circumstances we think the Crown's conclusions of 6 years were perhaps generous to you.  However we are not going to increase them and you are sentenced to 6 years' imprisonment. 

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

Authorities

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

Attorney General-v-Miah [2004] JLR N10.

Attorney General-v-Bray [2000] JLR N58a.