Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - supply - possession - Class A and B.

[2012]JRC180

Royal Court

(Samedi)

11 October 2012

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Morgan, Kerley, Olsen, Blampied and Liddiard.

The Attorney General

-v-

Paul George Clamp

Louise Marie Ellis

Fabio Joaquim Gouveia Ferreira

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 8^th and 10^th August, 2012, following guilty pleas to the following charges:

Paul George Clamp

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:  48.

Plea: Guilty.

Details of Offence:

Ellis acted as a courier and imported 121.28 grams of heroin with 17% purity.  Wholesale value was between £20,800 and £46,500 and street value in Jersey of £122,000.

Upon arrival at Jersey Airport with her 7 year old daughter Ellis made contact with "Paul" being the name that she was provided with by supplier in Liverpool of the heroin, together with a telephone number for "Paul".  There was a sequence of calls between "Paul" and Ellis which directed her to her hotel.  She was told to wait there and the heroin would be collected from her.  "Paul" was also in contact with Ferreira and he was directed to go to the hotel and collect the package from Ellis, handing the package to "Paul" and another male whom it was contended by Clamp was the principal behind the importation.  At the time of the arrest of Clamp he was found in possession of the mobile phone which matched the number provided to Ellis and an examination of the phone revealed the various telephone calls to Ellis and Ferreira.  Clamp denied any involvement in interview but subsequently entered a guilty plea on a specific factual basis.  This was to the effect that he was fulfilling the role of a link man or "buffer" between the courier and others and the actual principal behind the importation.  He accepted the prosecution's evidence showing his involvement as the link man.  He was to receive £1,000 for his involvement.  Ellis who was in debt expected to receive £2,000.  Ferreira whose involvement was on the periphery expected to receive "gear" for his personal use. 

The Crown equated the respective involvements of Ellis and Clamp as being of equal culpability and having regard to the quantity and value of the drugs seized took a "starting point" of 10 years' imprisonment.  No "starting point" was taken for Ferreira as he had been charged with an Article 5(c) offence.

Details of Mitigation:

The Crown

Guilty plea albeit it late in the day.  Change in plea one month before trial dates.  Did not have the benefit of youth or previous good character, albeit no previous drug offences.  Following entering a guilty plea he had provided a witness statement to the police and expressed a willingness to give evidence on behalf of the prosecution against certain individuals if the prosecution decided to proceed against him.  The Crown considered Clamp's statement to be genuine and of assistance. 

The Defence

Emphasised not involved in importation, finance or onward supply of the heroin.  Not pre-planned.  Living with the person whom it was claimed was the person behind this importation and who was also his employer.  Defence agreed correct "starting point" had been taken.  Had provided a witness statement and identified individuals behind the importation and was willing to give evidence against them.  Insufficient credit given by Crown for this piece of mitigation.  Claimed disparity between sentence sought for Clamp and Ferreira.  He had come to Jersey to work and was using time in prison constructively. 

Previous Convictions:

20 convictions for 39 offences including burglary and theft, violence, criminal damage, shoplifting, motoring and breach of court orders re failing to surrender to bail.

Conclusions:

Count 1:

Starting point 10 years' imprisonment. 5 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Clamp and Ellis had been involved in different ways in the importation of 121 grams of heroin with a street value of £123,000.  The guidelines suggested a "starting point" of 10 to 13 years for amounts of 100 grams to 250 grams.  Clamp was the link man in Jersey and he was in frequent telephone contact with the person in the UK and also with Ellis and Ferreira.  He would be sentenced on the factual basis put forward by him which was that he was not an organiser or involved in the finance or in the onwards supply of the heroin.  He was to receive a fee of £1,000 and what he did was at the direction of his flat mate/employer. 

The Court agreed with the Crown's approach that he had the same culpability as Ellis and the correct "starting point" was one of 10 years' imprisonment.  In terms of mitigation he pleaded guilty late in the day and was therefore not entitles to the full one third deduction; a number of previous convictions, but none for drugs.  He was making efforts in prison and the Court had read his letter.  But for one matter, the Court's sentence would have been one of 6½ years.  After he had pleaded guilty he provided a statement and indicated that he would give evidence against those who had organised this importation.  The prosecution had accepted that the contents of the statement were genuine and was of substantial assistance to the prosecution.  The Court repeated its previous comments (see AG-v-Miah 2002/210) in that those who provide assistance to the prosecution and are prepared to have that recognised in open court are deserving of substantial mitigation.  The Court felt that the Crown had not allowed sufficient deduction for this mitigation.  The Court was going to allow a deduction of 2½ years for this mitigation. 

Count 1:

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

Forfeiture and destruction of the drugs ordered. 

Louise Marie Ellis

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:  31.

Plea: Guilty.

Details of Offence:

See Clamp above.

Details of Mitigation:

The Crown

She pleaded guilty and was cooperative in interview.  She was of previous good character/offence was out of character.  She had expressed a willingness to provide a statement as part of the Prosecution's case against Clamp.  Following guilty plea by Clamp she provided a witness statement which the Crown accepted was genuine and expressed a willingness to give evidence on behalf of the Prosecution. 

The Defence

"Starting point" not disputed.  Not involved in the planning of importation but she was aware she was importing drugs but not quantity or nature of drugs.  Early guilty plea; cooperated with the police and offer of statement.  Offence was out of character.  Using time constructively in prison.  Suggested insufficient credit given for her mitigation.

Previous Convictions:

None.

Conclusions:

Count 1:

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

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

See Clamp above.

Ellis had been involved in England and fulfilled the role of courier.  The Court agreed that the correct "starting point" was 10 years' imprisonment.  She pleaded guilty at a very early stage and was therefore entitled for a full one third.  She had no previous convictions and this provided additional mitigation.  She was cooperative from the start.  But for the other matter of mitigation the Court's sentence would have been 5½ years' imprisonment.  She had also been willing to assist the Prosecution.  She was prepared to give evidence against Clamp and also against the English supplier.  Her cooperation also warranted a 2½ year deduction. 

Count 1:

Starting point 10 years' imprisonment.  3 years' imprisonment.

Forfeiture and destruction of the drugs ordered. 

Fabio Joaquim Gouveia Ferreira

1 count of:	Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  29.

Plea: Guilty.

Details of Offence:

See Clamp above.

Details of Mitigation:

The Crown

Guilty plea; admissions made in interview as to his involvement; does not have benefit of youth or previous good character; three previous drug convictions; admitted possession of cannabis at his home address; limited involvement.

The Defence

Had a limited role; claimed other male who went to that hotel has as much involvement as he did albeit he was not charged; he made admissions in interview as to his own involvement and was close to writing his own Indictment.  Since arrest he remained on bail and made substantial efforts to change his lifestyle and become drug free.  Guilty plea and delay in bringing case to conclusion caused by not guilty plea of co-accused.  Recommendation from Probation for a non-custodial sentence.

Previous Convictions:

4 convictions for 12 offences, including possession of controlled drugs with intent to supply, possession of drugs x 2, obstruction and motoring offences. 

Conclusions:

Count 2:	12 months' imprisonment.
Count 3:	1 month's imprisonment, concurrent.

Total: 12 months' imprisonment. 

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

See Clamp above.

He was not involved in the importation and his role was simply to go and collect the heroin.  He knew he was collecting drugs and expected some heroin for personal use.  In the event he got a friend to do what he had been asked to do.  He has previous drug convictions.  He had offered a guilty plea from the outset and came close to writing his own Indictment, albeit there was some other evidence against him over and above the admissions that he made in interview.  The Court had however been influenced by the fact that he had been on bail and that during that time period he had used his efforts to become drug free and to turn his life around.  Social Enquiry Report recommended a non-custodial sentence so as to encourage and support the progress that he had made.  The Court acknowledged that this was a highly unusual decision for the Court to make but due to his limited involvement and the efforts that he had made to change his life, then the Court was prepared to impose a non-custodial sentence.  Had a custodial sentence been imposed then it would have been 18 months' imprisonment. 

It was noted that he would complete the courses recommended in the Probation report and also undergo random drug tests.

Ferreira was warned as to his future conduct in terms of reoffending or breaching the Court's orders.  He had been given a chance and if he failed to take it then it was highly likely that he would be sent to prison. 

Count 2:	240 hours' Community Service Order and an 18 month Probation Order.
Count 3:	40 hours' Community Service Order, concurrent.

Total: 240 hours' Community Service Order and an 18 month Probation Order.

Forfeiture and destruction of the drugs ordered. 

J. C. Gollop, Esq., Crown Advocate.

Advocate S. A. Pearmain for Clamp.

Advocate R. A. Slater for Ellis.

Advocate R. S. Tremoceiro for Ferreira.

JUDGMENT

THE BAILIFF:

1.        Clamp and Ellis, you were involved in different ways in the importation of 121 grams of heroin with a possible street value up to £122,000.  For such an amount the starting point, in accordance with the guidance in the case of Rimmer, Lusk and Bade [2001] JLR 373, is 10-13 years because the quantity falls within the 100-250 gram bracket. 

2.        Clamp, you were the linkman in Jersey; you were in frequent telephone contact with "J", the apparent organiser of the importation in England, as well as with Ellis on her arrival in Jersey and Ferreira.  But we of course sentence you on the basis which has been accepted by the Crown, namely that you were not an organiser and you had no financial interest in the importation other than the fee that you were going to receive of about £1,000, and you had no involvement in the onwards supply and were not going to.  In effect you were doing what you did at the direction of your flatmate and employer, who was the organiser. 

3.        We agree with the Crown that your level of involvement should be regarded as being the same as that of Ellis and therefore we take a starting point of 10 years which is the bottom of the relevant bracket. 

4.        As to mitigation, you have pleaded guilty but you did so late, and you lied repeatedly at interview to start with.  In the circumstances you are not entitled to a one third discount but we do give you a discount for the guilty plea, but as I say, not as much as we are going to give Ellis and not as much as we would have given you had you pleaded guilty from the start. 

5.        You have many previous convictions but we note that there are no previous drug convictions and you clearly have been making efforts in recent years to try and turn your life around.  We have read your letter and we have read the other matters put before us by your advocate and we note the certificates you have obtained in prison and we hope very much you will continue to use the time constructively.  Were it not for the one further item of mitigation that I am about to come to, the sentence which we would have imposed on you would have been 6½ years. 

6.        But, once you pleaded guilty, you said that you were willing to give evidence against those who had organised the importation, and indeed you gave a witness statement to the police.  The Crown Advocate has informed us that the Prosecution accept the genuineness of what you were saying and that we should regard it as being of substantial assistance at the same level as that offered by Ellis.  The Court has said repeatedly that those who give overt assistance in this way are entitled to a substantial discount in sentence additional to the ordinary mitigation. 

7.        We would repeat what we said in the case of AG-v-Miah 2002/210 which is "that those who give information about drug dealers to the police, and acknowledge in open court that they have done so, will be given a substantial discount in their sentence."  The Court wishes to encourage the provision of information to the police so that they can progress investigations against other people and we also wish to encourage an acknowledgement in open court where that assistance is given, so that others can be encouraged to behave in a similar way in the knowledge that a substantial discount in sentence will follow.  We think that the Crown has not allowed sufficient in this regard.  We think an additional 2½ years should be allowed off your sentence beyond the other mitigation. 

8.        The sentence in your case on the one count you face is therefore one of 4 years' imprisonment. 

9.        Ellis, you were the courier and you were in debt in England and you agreed to bring it over to Jersey in return for a fee.  We agree that the correct starting point there is 10 years.  In your case in terms of mitigation you pleaded guilty from the outset.  We therefore give you a greater discount than we did Clamp, in your case the full one third.  We also note that you have no previous convictions, unlike him, and that gives you additional mitigation.  We note your cooperation from the start and we also note the progress you have been making in prison and we hope you will continue to make good use of your time there. 

10.      Were it not for the assistance that you have given we think the correct sentence in your case would have been one of 5½ years' imprisonment; that is one year less than Clamp.  But you too indicated a willingness to assist; you said that you were willing right from the start to give evidence against Clamp, who was pleading not guilty at the time, and you also said that you were willing to give evidence against "J".  So we think that you too should have an additional discount of 2½ years to reflect that. 

11.      In your case the sentence will be one of 3 years' imprisonment. 

12.      Ferreira, you were not involved in the importation, you were simply asked by Clamp to go and pick up a package for him from the Sandranne Hotel.  You knew that it contained drugs and you expected to receive some heroin in exchange for doing that.  In fact you did not do it yourself, you got a friend to do it but he knew the score as well and knew that he was being asked to pick up some heroin.  You took him there in your car and waited outside the hotel for him to collect the package. 

13.      You do have previous drug convictions.  In mitigation though, you did plead guilty from the outset; in addition, as your advocate has suggested, you come close to writing your own Indictment.  You do not do so fully because there was some other evidence; you were seen going into Clamp's flat, there is the evidence of your telephone calls and the fact that you were in the car outside the hotel.  But we accept that that was circumstantial evidence which might well not have been enough on its own, and certainly your immediate admissions made a considerable contribution to the prosecution case. 

14.      What has influenced us particularly in your case is that whilst you have been on bail, which is now nearly a year, you have made real efforts to defeat your heroin addiction.  You have had tests and all the evidence suggests that so far you are succeeding.  The probation report recommends that we should try and maintain this progress and assist you in turning your life around by imposing a non-custodial sentence.  The imposition of a non-custodial sentence for an offence such as this is highly unusual but in view of your very limited involvement, the fact that you were not involved in the importation and the efforts you have made to turn your life around since the arrest, the Court has been persuaded that it can proceed by way of a non-custodial sentence.  We think though that had it been a prison sentence, 18 months was the correct sentence rather than the 12 months which was moved for. 

15.      In your case, on the Count of being concerned in supply of heroin, the sentence is 240 hours' community service coupled with a Probation Order for 18 months and we note that there are various courses that you should attend as directed by the Probation Service and that they will require you to continue to undergo random drug-testing.  On the minor Count of the possession of cannabis, we impose a concurrent sentence of 40 hours' community service.  I do need to stress this to you though Mr Ferreira; if you commit any further offences during this period of probation or community service, or if you do not turn up for the community service and perform it diligently, or if you do not follow any of the directions you are given by the Probation Service then you will be brought back here, and if you are brought back here you will have had your chance and it is highly likely that then you would have to go to prison. 

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

Authorities

Rimmer, Lusk and Bade [2001] JLR 373.

AG-v-Miah 2002/210.

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

AG-v-Burns 2001/29.