Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - Class B and C - perverting the course of justice.

[2013]JRC086

Royal Court

(Samedi)

10 May 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Liston.

The Attorney General

-v-

Daniel Duncan Baugh

Darren Carl Lawlor

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Daniel Duncan Baugh

First Indictment

12 counts 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 (Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12).

Second Indictment

1 count of:

Perverting the course of justice (Count 1).

Age:  26.

Plea: Guilty.

Details of Offence:

First Indictment

535 grams of cannabis and 1,701 diazepam tablets were imported over the course of twelve postal importations, of which Lawlor was involved in three (two cannabis importations totalling 207g and one diazepam importation of 301 tablets).  The importations were instigated by Baugh.  Delivery addresses used were those of his co-defendants, who were willing participants (one of whom is to be sentenced separately for additional offences).  The suppliers were internet dealers that Baugh had discovered in an online forum; the packages were sent primarily from Birmingham and Glasgow, and one from Tyneside.  The importations, in date order, were as follows, indicating where the importation was either estimated (based on evidence) or seized: (1) 100 diazepam tablets (estimated); (2) 14g cannabis (estimated); (3) 107g cannabis (seized); (4) 301 diazepam tablets (seized); (5) 100g cannabis (seized); (6) 100g cannabis (estimated); (7) 300 diazepam tablets (estimated); (8) 28g cannabis (estimated); (9) 55 diazepam tablets (estimated); (10) 96g cannabis (seized); (11) 500 diazepam tablets (seized); (12) 90g cannabis (estimated).  The drugs seized and estimated had a minimum street value of approximately £8,000.  Drugs were for personal use or to be shared with co-defendants; there was no evidence of financial benefit for drug trafficking or of an intention to supply on a wide commercial scale. 

Second Indictment

A Polish man, Lukasz Blachut, was falsely accused in interview (5^th July, 2012) as being responsible for the importations and was consequently arrested, taken into custody, interviewed at length and had his home searched.  He was under suspicion for two months. 

Details of Mitigation:

Comparative good character; very good references.

Previous Convictions:

Offences against the person and property; despite admission of using drugs, there were no previous drug convictions. 

Conclusions:

First Indictment

Count 1:	14 months' imprisonment.
Count 2:	14 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	14 months' imprisonment, concurrent.
Count 5:	14 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.
Count 7:	14 months' imprisonment, concurrent.
Count 8:	14 months' imprisonment, concurrent.
Count 9:	14 months' imprisonment, concurrent.
Count 10:	12 months' imprisonment, concurrent.
Count 11:	12 months' imprisonment, concurrent.
Count 12:	12 months' imprisonment, concurrent.

Second Indictment

Count 1:

7 months' imprisonment, consecutive to the First Indictment.

Total: 21 months' imprisonment. 

Confiscation Order in the nominal amount of £1 sought. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The perverting charge was the most serious, the Court being concerned that an innocent man was placed under suspicion for two months with the defendants doing nothing to inform the police until pressed in interview in early September.  Only a custodial sentence would suffice for this offence despite the strong personal mitigation available.  Had the Court not felt constrained to pass a custodial sentence for perverting the course of justice, it would have been inclined to pass a non-custodial sentence for the drugs importation offences, because the amounts were outside the Campbell guidelines and there was very strong personal mitigation.  However the Court could not pass mixed custodial and non-custodial sentences, so a custodial sentence was imposed for the drugs matters.  Lawlor had not instigated the offences and had allowed himself to be drawn in, justifying his shorter sentence. 

First Indictment

Count 1:	8 months' imprisonment.
Count 2:	8 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent.
Count 4:	8 months' imprisonment, concurrent.
Count 5:	8 months' imprisonment, concurrent.
Count 6:	6 months' imprisonment, concurrent.
Count 7:	8 months' imprisonment, concurrent.
Count 8:	8 months' imprisonment, concurrent.
Count 9:	8 months' imprisonment, concurrent.
Count 10:	6 months' imprisonment, concurrent.
Count 11:	6 months' imprisonment, concurrent.
Count 12:	6 months' imprisonment, concurrent.

Second Indictment

Count 1:

7 months' imprisonment, consecutive to the First Indictment.

Total: 15 months' imprisonment.

Confiscation Order in the nominal amount of £1 made.

Forfeiture and destruction of drugs ordered.

Darren Carl Lawlor

First Indictment

3 counts 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 (Counts 4, 5 and 6).

Second Indictment

1 count of:

Perverting the course of justice (Count 2).

Age:  35.

Plea: Guilty.

Details of Offence:

See Baugh above.

Details of Mitigation:

Comparative good character; very good references.

Previous Convictions:

No previous convictions.

Conclusions:

First Indictment

Count 4:	8 months' imprisonment.
Count 5:	8 months' imprisonment, concurrent.
Count 6:	6 months' imprisonment, concurrent.

Second Indictment

Count 2:

7 months' imprisonment, consecutive to the First Indictment.

Total: 15 months' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

See Baugh above.

First Indictment

Count 4:	4 months' imprisonment.
Count 5:	4 months' imprisonment, concurrent.
Count 6:	3 months' imprisonment, concurrent.

Second Indictment

Count 2:

5 months' imprisonment, consecutive to the First Indictment.

Total: 9 months' imprisonment.

Forfeiture and destruction of drugs ordered.

W. A. F. Redgrave, Esq., Crown Advocate.

Advocate P. S. Landick for Baugh.

Advocate D. A. Corbel for Lawlor.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I am going to take first the sentences on the case of perverting the course of justice because that is the more serious of the offences with which we are dealing today and I repeat what the Court said in the case of AG-v-Picot [2011] JRC 106:-

"3       The offence of attempting to pervert the course of justice is a very serious offence.  There is no limit in theory to the imprisonment term that can be imposed for that offence."

In relation to the facts of that case the Court went on:-

"This particular offence that you committed is not the worst form of attempting to pervert the course of justice but, if you do not think about yourself for a moment but think about Mr Taylor, it was directly down to you that he was taken into custody and held overnight and not released until midday the following day - a time when he will not have known what was going to happen to him; will not have understood why his liberty was being taken away from him, and that is very serious.  And had he not had the alibis that he did have, then you might have succeeded in passing on the blame to him for the offences which you committed.  That is mean and unacceptable.  If you did not understand it before I hope you do now; it is completely unacceptable."

2.        There are at least two types of offence of attempting to pervert the course of justice.  One of them is where parties get together to provide a false alibi without implicating a third party but the more serious kind is when a third party is implicated, which is what happened here.  What happened here was that you, Mr Baugh, named a Polish man who lived downstairs, when you were interviewed, as being the person who had asked you to sign for registered mail.  And Mr Lawlor, you then confirmed it, admittedly after some prevarication; and indeed, just on that point the Court does not agree with the Crown that there is no distinction between you.  We think that Mr Lawlor's offence is less serious than that of Mr Baugh because we accept that Mr Lawlor went along with the suggestions rather than created the idea himself.  But then when one looks at what actually happened, as a result of implicating Mr Blachut, he was arrested at his place of work.  All his work colleagues will have known that he had been arrested by the police and taken away.  Taken into custody, his home was searched; he was interviewed at length under caution and then he was released.  It is worth just reminding ourselves of what the interpreter said:-

"I would describe [him] as having been shaking, nervous and in a highly agitated state.  he was worried that he missed a scheduled Skype call with his wife in Poland and she would be worried.  He feared that his employers would think badly of him as he had been arrested in the workplace.  I recall thinking at the time that if this man is innocent then it is a terrible experience that he has been put through."

3.        And it was entirely your fault that he had to suffer that.  Here is a man who is in a foreign country who needs an interpreter to have things explained to him; he is arrested at his place of work and taken into custody and interviewed by the police.  And what is more, when he is released, he does not know for two months whether or not the police are going to come back and take him again; he has two months of uncertainty, not knowing what the position is before eventually, in September, you agreed that he had not in fact been involved at all. 

4.        I am going to say something about the mitigation for you in a moment but the Court treats offences of perverting the course of justice extremely seriously and it is just for this reason that you, in this case, have placed an innocent man in fear of prosecution, in fear of jeopardy through the police for a lengthy period.  There is no alternative but a custodial sentence, in our view, as a result. 

5.        Because we have reached that conclusion we are going to be looking at a custodial sentence also in relation to the drugs offences which you have committed because we cannot impose a custodial sentence on perverting the course of justice and look for some non-custodial alternatives on the others.  Had that not been the case we would have been looking, in your cases, at non-custodial sentences but for the more serious charge. 

6.        In mitigation I would like to say that we have accepted completely your remorse; that you are sorry for what you have done.  We accept that, Mr Baugh, you are of substantially good character.  Mr Lawlor, you are of good character.  You have mitigation from your guilty plea and your references and character as set out in the various documents we have seen. 

7.        Mr Baugh you have turned your life around since all this happened and you have written us a very good letter which we have spent time reading and had regard to all that, indeed to all the material which is before the Court and we have had regard to the social enquiry report. 

8.        Mr Lawlor, in your case we have had regard to the psychological report particularly in the context of whether or not you carry the same amount of culpability in relation to the offence of perverting the course of justice; and we think the psychological report does show that you went along with suggestions which you ought not to have done. 

9.        We think that on the offence of perverting the course of justice the Crown's conclusions of 7 months' imprisonment in relation to Mr Baugh were generous, it could well have been higher. But, having regard to all the mitigation, we think that 7 months' imprisonment on that count is correct. 

10.      In the case of Mr Lawlor, on the count of perverting the course of justice, and marking the distinction between you and Mr Baugh, we think a sentence of 5 months' imprisonment is correct.

11.      I turn now to the drugs charges and, as I say, the quantity involved takes one outside the Campbell guidelines in relation to cannabis and we think that the right sentence in relation to the importation of cannabis in relation to each of those charges, would be, Mr Baugh in your case, 8 months' imprisonment and in relation to the diazepam, 6 months' imprisonment and those will concurrently with each other but consecutively to the offence of perverting the course of justice. 

12.      And so as a result, in your case Mr Baugh, you are sentenced on Counts 1, 2, 4, 5, 7, 8, 9 to 8 months' imprisonment and on the remaining counts on the First Indictment, in relation to diazepam, 6 months' imprisonment.  Those all run concurrently.  And on the Second Indictment to 7 months' imprisonment which runs consecutively, making a total of 15 months' imprisonment.

13.      Mr Lawlor, you are sentenced to 4 months' imprisonment in relation to the two counts of cannabis, and 3 months' imprisonment, concurrently in relation to the count of diazepam.  So they run together with each other, consecutively to the perverting the course of justice of 5 months, making a total therefore of 9 months' imprisonment in your case. 

14.      In relation to the drugs charges we also order the drugs to be forfeited and destroyed.

15.      You both have an enormous amount of positive things that can be said for you.  What we have found we cannot do is overlook the offence of perverting the course of justice because the Court always regards that as so serious; and particularly seriously that a completely innocent person has been put at risk.  You can use your custodial sentence constructively, I am sure you will.  There is plenty that can be taken constructively out of that sentence and the most constructive part of it perhaps would be to recognise that this was a serious mistake and that when you are released you can move on and start your lives afresh. 

Authorities

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

AG-v-Picot [2011] JRC 106.

Campbell, Malloy and MacKenzie-v-AG [1995] JLR 136.

AG-v-Valler [2002] JLR N 14.

AG-v-Hilario [2010] JRC 039.

R-v-Sheehan-Dinler [2008] EWCA Crim 1341.

R-v-Pryce and Huhne [11 March 2013].

AG-v-Hamon (14/12/12, sentencing note).