Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - Class C.

[2012]JRC006A

Royal Court

(Samedi)

5 January 2012

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Breton and Marett-Crosby.

The Attorney General

-v-

Andrew Scott Page

David Anthony Childs

Michael James Keane

Reginald Joseph Tucker

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

Andrew Scott Page

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:  32.

Plea: Guilty.

Details of Offence:

The four defendants smuggled 4,727 BZP tablets into Jersey from the UK on 7^th June, 2011.  The drugs had a potential Jersey retail value of £10 per tablet, giving rise to a potential net Jersey profit after UK purchase prices of as much as £46,000. 

Page, Childs and Keane were facilitators for the importation.  From Jersey Page procured the funding for the drugs, which Childs and Keane obtained in Liverpool.  Childs and Keane couriered the drugs to Portsmouth where they handed them to Tucker.  These three travelled to Weymouth together, although Tucker split from the other two before all three boarded the ferry to Jersey.  Tucker, who was carrying the drugs in a rucksack, remained apart from the other two throughout.  Keane and Childs' jobs were to chaperone him and act as decoys to draw any suspicion. 

In addition to funding, Page met the defendants in Jersey, chaperoned them to a bar in St Helier, and was to have taken delivery of the drugs in a nearby flat.  The defendants were arrested before the final transfer could occur.  Together with the drugs in the rucksack, Tucker was carrying a letter and a social security cheque made out to Page - his next door neighbour in Portsmouth. 

All four either denied the offence in interview or made no comment. 

Details of Mitigation:

A late guilty plea two months before trial which should result in Page enjoying less credit as a consequence. 

Previous Convictions:

218 previous convictions, mostly for dishonesty, although he had two convictions for possessing cannabis. 

Conclusions:

The Crown's conclusions were based on an error as to the amount of tablets imported, leading to a higher starting point being proposed than would have been had the error been noticed prior to sentencing. 

Thus the Crown erroneously proposed a starting point of 5 years' imprisonment, (the statutory maximum). 

In the absence of a guideline case for Class C trafficking offences, the Crown suggested that the categories set out in Bonnar and Noon-v-AG 2001/212 could by analogy inform the selection of starting points in Class C cases, such that, for example, the importation of 5,500 or more Class C tablets would justify a starting point of the maximum statutory sentence of 5 years. 

Count 1:

3 years and 4 months' imprisonment.

Forfeiture and destruction of drugs sought.

Order in the sum of £368.40 to pay towards the Prosecution's costs sought. 

Sentence and Observations of Court:

The Court concluded that it was wrong in principle to use Class A or B guidelines for quantity as a means of assessing starting points in Class C cases and declined to do so.  The starting point of 5 years was in any event too high.  A starting point of 4 years' 6 months in the case of each of Page, Childs and Keane would be adopted, and 4 years in the case of Tucker.  The only obvious mitigation was the guilty plea of each defendant.  Page should not receive as much credit as the others because his plea was entered late.  Keane deserved some recognition for the fact that his record was not as bad as Page's or Childs, and because Childs had previous convictions for serious drug offences. 

Count 1:

Starting point 4½ years' imprisonment.  3 years' imprisonment.

Forfeiture and destruction of drugs ordered. 

No order made in respect of a contribution towards the Prosecution's costs. 

David Anthony Childs

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 Page above. 

Details of Mitigation:

Guilty plea at the earliest opportunity.

Previous Convictions:

74 previous convictions again typically for dishonesty, although two were for conspiring to supply cocaine committed as a young offender in 2002.

Conclusions:

Count 1:

3 years imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 4½ years' imprisonment.  2 years and 8 months' imprisonment.

Forfeiture and destruction of drugs ordered. 

Michael James Keane

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:  25.

Plea: Guilty.

Details of Offence:

See Page above.

Details of Mitigation:

Guilty plea at the earliest opportunity.

Previous Convictions:

10 previous convictions, though none for drug offending.

Conclusions:

Count 1:

3 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 4½ years' imprisonment.  2½ years' imprisonment.

Forfeiture and destruction of drugs ordered. 

Reginald Joseph Tucker

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:  67.

Plea: Guilty.

Details of Offence:

See Page above.

Details of Mitigation:

Guilty plea at the earliest opportunity.

Previous Convictions:

87 previous convictions, one of which was for possessing drugs with intent to supply in 1995. 

Conclusions:

Count 1:

2 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 4 years' imprisonment.  2 years' imprisonment.

Forfeiture and destruction of drugs ordered. 

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. J. Haines for Page.

Advocate R. Tremoceiro for Childs.

Advocate C. G. Parslow for Keane.

Advocate L. J. Glynn for Tucker.

JUDGMENT

THE BAILIFF:

1.        The four of you were concerned in the importation of 4,727 tablets of what is commonly known as BZP, a Class C drug.  It has a retail value of some £47,000 in Jersey.  Tucker was the courier; the other three of you were involved in the importation as described in the Crown summary.  It is accepted that you were working for others who are not before the Court, but nevertheless, you all played important roles in what was a carefully planned importation as described by the Crown Advocate. 

2.        We accept that no distinction is to be drawn between Page, Childs and Keane in respect of the degree of involvement and responsibility of each of them.  All the defendants have bad records.  Page has numerous previous convictions of which three are for possession of drugs, and he was subject to a suspended sentence imposed by Winchester Crown Court at the time of this offence.  Childs also has numerous previous convictions including two for conspiring to supply cocaine for which he received 4 years' youth detention back in 2002.  Keane's record is the least bad, he has ten previous convictions for dishonesty and motoring offences and no previous drug offences.  Tucker has numerous previous convictions including two previous drug offences back in 1995. 

3.        The first issue we have got to consider is the starting point upon which all defence counsel have made submissions.  The maximum sentence for importation of a Class C drug is 5 years.  The Crown has, in this case, taken a starting point of 5 years.  It has done that by analogy with the top bracket in the well-known case of Bonnar and Noon [2001] JLR 626, which relates to Class A drugs, and in particular the passage in Bonnar which says that there will be a starting point of 14 years upwards for 5,500 tablets or more.  But in our judgment the analogy breaks down in two respects.  First, 14 years is not the maximum sentence permitted by statute for importation of a Class A drug, it is life imprisonment.  Secondly, the quantity of drugs which we have here, some 4,700, falls within the second bracket in the Bonnar scale, not the top bracket as was indicated by the Crown. 

4.        In any event, we do not think that one can read across from Class A sentencing levels to Class C in such a direct manner.  We were also referred by counsel to three cases where the Court has imposed sentences for Class C drug offences.  In the case of AG-v-Munro [2011] JRC 121 there was possession with intent to supply of some 1,500 tablets of BZP.  There were no previous drug convictions but there were other drug offences on that occasion and a starting point of 2 years was taken, reduced to 1 year as an actual sentence for the Class C offence.  But that was imposed consecutively and one has to look very cautiously at consecutive sentences because of the impact of the totality principle which often results in a sentence being reduced below what it would have been if it stood alone. 

5.        In AG-v-Allman Jones [2010] JRC 230A the defendant imported 18,900 tablets of BZP together with 30 kilos of cannabis on his boat.  He had a previous drug conviction.  The sentence was one of 3 years for the BZP offence, concurrent with 6½ years for the cannabis offence.  No starting point was indicated. 

6.        In AG-v-Spinola [2010] JRC 100 the defendant was in possession with intent to supply of some 6,200 BZP tablets and 2.2 grams of cocaine.  He was sentenced to 3½ years' imprisonment for the BZP offence, concurrent with 4 years for the cocaine offence.  He had one previous drug conviction. 

7.        All in all, we have not been able to obtain great guidance from these three cases where clearly the facts varied considerably.  But what we do consider is that it is not appropriate to take as a starting point the maximum sentence for the importation in this case, of just under 5,000 tablets.  In our judgment the maximum sentence must be reserved for a more serious importation, although that is not to accept the argument put forward by defence counsel that one can always think of something more serious than the offence currently before the Court and therefore, in effect, can never impose the maximum sentence.  There comes a time when offences are serious enough to justify the maximum even if one can envisage something more serious which would also justify the maximum.  In our judgment the correct starting point for Page, Childs and Keane in this case is 4½ years' imprisonment. 

8.        In the case of Tucker the Crown also took the maximum starting point of 5 years but then reduced the final sentence very much more than the others to take account of, amongst other things, the level of his involvement in the offence.  In our judgment that is wrong in principle.  The level of involvement is to be taken into account in deciding the starting point and not by way of mitigation.  Accordingly, we agree with the Crown that Tucker's degree of involvement was less than that of the other three and therefore it must be reflected in a lesser starting point.  We think the correct starting point in his case is one of 4 years. 

9.        So we turn therefore to the mitigation in each case and first of all Page.  He has pleaded guilty but he did so only two months before the trial date.  We agree with the Crown that a full discount of one third should not therefore be given.  Such discounts are to be reserved for those who plead guilty at the earliest opportunity.  Mr Haines sought to argue that it was all the fault of the Prosecution that he did not plead guilty earlier, but in our judgment we are not satisfied as to that; the defendant knew whether he had committed this offence or not, it was open to him to plead guilty at an earlier stage.  We have read his letter of remorse and we have read the background report but there is not a great deal of mitigation other than the guilty plea. 

10.      In the circumstances the sentence in your case is one of 3 years' imprisonment. 

11.      Turning to Childs, he also pleaded guilty but he did so at the earliest opportunity.  We agree therefore that he should have a one third discount.  We have read the references and also the background report but again it has to be said that there is not a great deal of mitigation other than the guilty plea.  Nevertheless, because we give a full discount for the guilty plea, the sentence is slightly less. 

12.      The sentence in your case is one of 2 years and 8 months' imprisonment. 

13.      In the case of Keane, he also pleaded guilty at the earliest opportunity.  In his case there is a psychiatric report which we have read and considered, and also the background report.  We also take into account in his case that his previous convictions are less numerous and less serious than his colleagues.  In all the circumstances we think a slightly lesser sentence is appropriate for him. 

14.      The sentence in your case in one of 2½ years' imprisonment. 

15.      Finally we come to Tucker.  He also pleaded guilty at the earliest opportunity and therefore we agree with the Crown he should have the usual discount.  We have read in his case the letters from his daughter and his wife and his letter of remorse, and we have read the background report.  There is mitigation in his case and all in all we think that the original conclusion of the Crown was right in his case.  We did not fully understand how the Crown had descended from 5 years to 2 years in his case, but we think a reduction from 4 years to 2 years is appropriate. 

16.      The sentence in your case is one of 2 years' imprisonment. 

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

18.      We do not make a costs order against Mr Page. 

Authorities

Bonnar and Noon [2001] JLR 626.

AG-v-Munro [2011] JRC 121.

AG-v-Allman-Jones [2010] JRC 230A.

AG-v-Spinola [2010] JRC 100.