Jersey Unreported Judgments

[2011]JRC196

Royal Court

(Samedi)

5 October 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Clapham, Le Cornu, Marett-Crosby, Nicolle and Le Brocq.

The Attorney General

-v-

Liljar Baksh Khan

Felicity Jayne Towers

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 8^th July, 2011, following guilty pleas to the following charges:

Liljar Baksh Khan

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).

Age:  30.

Plea: Guilty.

Details of Offence:

Count 1:-

On 14^th April, 2011, Towers, an Australian citizen working in London, arrived on a flight from Gatwick and imported 109.5 grams of heroin with an average purity between 16% and 17% by weight of diamorphine, with a street value of £110,000.  On arrival she took a taxi to the Hotel Ambassadeur where she met Khan in the lobby.  Both were arrested by customs officers. 

Prior to search at the custody suite Towers said "I was told to bring these packages, I'm not actually sure what they are" and produced two condom wrapped packages, one from her underwear and one which had been carried internally.  Towers alleged that she had been given the drugs by Khan in London and expected to receive £3,000 before leaving the Island.  She said she was introduced to Khan by another Asian male who had befriended her in London, and knew of her own use of cocaine and her financial difficulties. 

In interview Towers appeared genuinely shocked when informed of the value of the packages and to some extent the actual content, although she had expected it to be a controlled substance.  Thereafter Towers was very cooperative, made full admissions and provided a detailed statement after caution including admission of previous trips to Jersey with other packages with unknown content. 

Analysis of mobile phones seized from both defendants on arrest (and a further eight from Khan's local address) showed direct contact between them in relation to the importation. 

I interview Khan admitted to being a drugs user with a "wild" heroin habit in the past, but became evasive when questioned about the mobile phones, and then exercised his right to silence with "no comment" answers to all questions relating to Towers.  He admitted recent travel to London but was silent in relation to a substantial cash withdrawal from the London branch of his bank the day before Towers alleged she had received the packages from him. 

An investigation into his back accounts showed unspecified credits of £108,764.90 into his bank accounts in just over three years, with no employment records or income tax returns in the Island since claimed arrival in 2001.  Unspecified credits of £15,500 had also been paid into Towers' bank account from Jersey during three years prior to arrest. 

Count 2:-

During the search of Khan's local address a small lump of cannabis resin with a value of not more than £5 was found amongst his possessions. 

Details of Mitigation:

Little meaningful mitigation other than guilty pleas. 

Previous Convictions:

25 offences during preceding eight years, eight drug offences in Jersey since 2004, three cautions in UK for possession of drugs, 18 months' imprisonment for affray. 

Conclusions:

Count 1:	Starting point 11 years' imprisonment.  7 years' imprisonment.
Count 2:	2 week's imprisonment, concurrent.

Total:  7 years' imprisonment. 

Confiscation Order in the sum of £388.66 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:	Starting point 11 years' imprisonment.  7 years' imprisonment.
Count 2:	No separate penalty.

Total:  7 years' imprisonment. 

Confiscation Order made in the sum of £388.66.

Forfeiture and destruction of drugs ordered. 

Felicity Jayne Towers

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:  40.

Plea: Guilty.

Details of Offence:

See Khan above.

Details of Mitigation:

Admitted guilt and role at a very early stage, full confession, high level of cooperation, indicated willingness to give evidence for prosecution at any trial which might arise from the information she provided.  Has numerous difficulties; became dependant on cocaine which made her vulnerable and in debt; took opportunity to wipe the slate clean with an unusual level of openness and honesty; assessed as unlikely ever to re-offend; numerous very supportive letters and references, many of which confirmed personal information she had provided to investigating officers and probation.

Previous Convictions:

None. 

Conclusions:

Count 1:

Starting point 11 years' imprisonment.  4 years' imprisonment.

Total:  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.

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

Advocate N. A. K. Williams for Khan.

Advocate M. T. Jowitt for Towers.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment of being knowingly concerned in the importation of heroin, and Mr Khan in your case also on a lesser offence in relation to cannabis.  This was a joint enterprise by which you were both knowingly concerned in the importation of 109.5 grams of heroin with a local street value of £110,000.  The drugs were brought into the Island by Miss Towers in return for a payment of £3,000.  It may or may not be that this is the first occasion of such offending in the sense that Miss Towers has admitted bringing packages in previously although she cannot identify the contents of the packages, and approximately £15,500 has been paid into accounts in Jersey in the last two years.  The Court treats this on this basis; it would appear that if you are a mule, in the context of bringing drugs into the Island, then you are a semi-professional mule, whatever those other packages might or might not have contained.  The exact part to be played by Mr Khan is a little unclear, but it would seem apparent to us on all the information which is before the Court that you are at least as involved as your co-defendant. 

2.        The Crown has taken a starting point of 11 years' imprisonment for both of you and have done so on the basis of the case of Rimmer-v-AG [2001] JLR 373 in the Court of Appeal.  The Court applies the policy which we are indeed charged to apply by that case and we think the Crown's starting point of 11 years' imprisonment is correct.  We take into account in reaching that conclusion, not just the quantity of drugs involved, but also the nature of the drug trafficking and your respective roles in it. 

3.        Mr Khan, we have taken into account your guilty plea which is a valuable guilty plea.  We note the expressions of remorse which you have expressed and we have looked also at the letters that have been passed up to us, both from you and from a previous partner and your daughter.  We have had regard to what your counsel has had to say, but at the end of the day we think that 7 years' imprisonment is the correct sentence to impose, allowing, from the starting point of 11, the deduction of 4 years in all.  We have taken into account in particular the record which you have, including convictions for drug offences in the past.  In so far as the cannabis offence is concerned Mr Khan, no separate penalty is applied.  So that is a total of 7 years' imprisonment for you. 

4.        Miss Towers, you have entered a guilty plea and have expressed remorse and have cooperated with the authorities and we accept that and take it into account.  We accept also the statements made by your counsel that the impact of this offending may well be significant in so far as your future career is concerned.  But nonetheless, you were paid for bringing these drugs into the Island, and you did so with your eyes open.  We have had careful regard to references, it is fair to say, the like of which this Court has not seen before.  We take into account in particular your willingness to give evidence in the case and your expression of that willingness to the authorities and indeed we have had regard to all the papers before the Court, and adopted the Court's customary approach in that respect.  Having regard to all these things and the matters expressed by your counsel, we think the conclusions of the Crown are correct and you are sentenced to 4 years' imprisonment. 

5.        We have also gone on to consider the question of deportation in respect of Ms Towers.  The importation of heroin into this Island is an extremely serious offence.  It will usually lead the Court to a conclusion that the first part of the test in R-v-Nazari [1980] 2 Cr. App. R. (S) 84, that is to say, is the person's continued presence detrimental to the interests of the community, it will usually lead the Court to the view that that test is passed.  But in all these cases the Court has a discretion to exercise and there is a balance to be drawn as to that very strong impact on the community, which would suggest a deportation recommendation ought to be made, against the circumstances of the offending and of the offender.  In this case two Jurats were of the view that a deportation recommendation ought to be made; four Jurats were of the view that it ought not to be made and so we are not going to make a recommendation for deportation in your case, but in not making that recommendation we wish to make it absolutely plain that an offence of this kind will usually lead to the first part of the Nazari test being passed. 

6.        We also order the forfeiture and destruction of the drugs. 

Authorities

Rimmer-v-AG [2001] JLR 373.

R-v-Nazari [1980] 2 Cr. App. R. (S) 84.

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

AG-v-Hamon & Boustouler [2011] JRC 108.

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

AG-v-Hume & Ors [2006] JRC 076.

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