Jersey Unreported Judgments

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

[2013]JRC148B

Royal Court

(Samedi)

29 July 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan, Fisher, Kerley, Marett-Crosby, Crill and Milner.

The Attorney General

-v-

Gintaras Zabiela

Stuart James Paul

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 17^th May, 2013, following guilty pleas to the following charges:

Gintaras Zabiela

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:

INnorder to pay off his dealer, Zabiela acted as courier of 82.88 grams of cocaine of 62% purity, concealed between two pairs of underpants that he was wearing.  His suitcase also contained an ostensibly commercially wrapped package containing tea.  He said the two consignments were from different sources and were intended for different recipients.  He did not suspect that the "tea" package contained contraband.  Paul agreed with another man that he would take delivery from Zabiela of 557 grams of herbal cannabis (the contents of the "tea" package), for a fee.  Mobile telephone evidence suggested that Paul's role also extended to advising at least six different telephone contacts of the failure of the importation.  Paul was also in possession of 3.6 grams of cannabis resin. 

Details of Mitigation:

Zabiela unhelpful during the investigation but later made a statement exonerating Paul in relation to the cocaine and implicating him in the cannabis importation.  Pleaded guilty at Indictment.

Previous Convictions:

23 convictions in the United Kingdom between 2006 and 2009, mostly for theft offences associated with his drugs dependency.  Convicted for simple possession of Class C and Class A drugs in 2009. 

Conclusions:

Count 1:

Starting point 9½ years.  6½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Confiscation Order sought in the nominal sum of £1.

Sentence and Observations of Court:

Count 1:

Starting point 9½ years.  6 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

Confiscation Order sought in the nominal sum of £1.

Stuart James Paul

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 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:  31.

Plea: Guilty.

Details of Offence:

See Zabiela above.

Details of Mitigation:

Pleaded guilty at Indictment.  Good work record and references.  Supportive girlfriend and young child.  Offer of employment.  Spent the equivalent of 7 months remanded in custody.

Previous Convictions:

6 driving convictions between 2001 and 2003.

Conclusions:

Count 2:	150 hours' Community Service Order, equivalent to 9 months' imprisonment.
Count 3:	40 hours' Community Service Order, equivalent to 7 days' imprisonment, concurrent.

Total: 150 hours' Community Service Order, equivalent to 9 months' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 2:	100 hours' Community Service Order, equivalent to 4 months' imprisonment.
Count 3:	40 hours' Community Service Order, equivalent to 7 days' imprisonment, concurrent.

Total: 100 hours' Community Service Order, equivalent to 4 months' imprisonment. 

Forfeiture and destruction of drugs ordered.

D. J. Hopwood, Esq., Crown Advocate.

Advocate J. M. Grace for Zabiela.

Advocate P. S. Landick for Paul.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Zabiela you are here to be sentenced for being knowingly concerned in the importation of cocaine in January this year.  The quantity was 82.88 grams at 62% purity.  It had a street value of £10,000-£25,600.  The cocaine was hidden between the two pairs of underpants you were wearing at the time.  You were not particularly cooperative when interviewed by customs officers.  You pleaded guilty on Indictment, but that was inevitable in all the circumstances, and while you are entitled to significant mitigation for that guilty plea, the Court does not think that you should be afforded the full one-third.  You did agree to give evidence against Mr Paul on the cannabis charge, which is a substantial piece of mitigation.  The Court has had regard to your absence of convictions for drug trafficking and we have read your letter. 

2.        The Court's approach to drug trafficking sentences for cocaine is guided by the case of AG-v-Rimmer, Lusk and Bade [2001] JLR 373.  For cocaine of this quantity there is a starting point of 9-11 years' imprisonment.  The Crown has taken 9½ years.  We think that is right.  We did note that both the Crown and the defence counsel have described you as, "a mere courier".  The Court does not think the addition of the adjective "mere" is at all helpful.  There is no distinction between a courier and "a mere courier".  The involvement in drug trafficking is what we have to assess.  Here we are satisfied that you are not high up the chain but the quantity of drugs is such that some increase from 9 years to 9½ years is appropriate. 

3.        We have taken into account everything your counsel has said and the mitigation that I have highlighted above and we think that the right sentence is one of 6 years' imprisonment. 

4.        We also make a Confiscation Order in the nominal sum of £1. 

5.        We have also considered the question of deportation, which has not been contested.  We have to have regard to two questions.  The first is to whether this conduct is such that you should not be permitted to remain in the Island and we think that easily passes that test.  We note that there is nothing in Human Rights terms either for you or for any other dependents or connections in the Island and therefore there is no reason why we should not make an order recommending your deportation, and we do indeed make that recommendation that when you have served your sentence you should be deported. 

6.        We order that the cocaine which you were carrying should be destroyed and forfeited.  We also order the same in relation to the cannabis that you were carrying but which is not the subject any longer of a charge against you.  So you are sentenced to 6 years' imprisonment.

7.        Mr Paul, you are here to be sentenced for being knowingly concerned in the importation of approximately half a kilo of herbal cannabis and possession of 3.59 grams of cannabis resin.  The amount involved for the trafficking offence is less than the Campbell guidelines and therefore we do not need to have regard to them. 

8.        We have had regard to all the material before the Court.  We think the Crown has been very generous in your case and we have approached the matter on the basis of the factual circumstances which the Crown has put before us and has accepted.  Having done that, we think we must logically reduce the Crown's conclusions slightly. 

9.        You are sentenced on Count 2 to 100 hours' community service with an alternative which would have been 4 months' imprisonment and on Count 3 to 40 hours' community service, the alternative would have been 1 week, and it shall run concurrently making a total of 100 hours' community service. 

10.      The reduction from the Crown's conclusions reflects that the Court would not have imposed in your case a sentence of some 16 months' imprisonment had we been starting from scratch.  That is to say, we have taken into account the time served upon remand and, of course, taken into account all the other mitigation which you have available to you.  So you are sentenced to 100 hours' community service. 

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

Authorities

Rimmer Lusk and Bade [2001] JLR 373.

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

AG-v-Grzyb [2010] JRC 235.

R-v-Nazari (1980) 3 All ER 880.

Camacho-v-AG [2007] JLR 462.