Jersey Unreported Judgments

You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Capuano Mason McBride and Picot [2014] JRC 034 (06 February 2014)
URL: http://www.bailii.org/je/cases/UR/2014/2014_034.html
Cite as: [2014] JRC 034, [2014] JRC 34

[New search] [Help]

Superior Number Sentencing - drugs - importation - Class A - attempting to pervert the course of justice.

[2014]JRC034

Royal Court

(Samedi)

6 February 2014

Before :

Sir Michael Birt, Kt., Bailiff and Jurats Clapham, Le Cornu, Nicolle, Crill and Blampied.

The Attorney General

-v-

Mario Romano Capuano

Georgina Mary Mason

Michael Morton McBride

James Francis Picot

Sentencing by the Superior Number of the Royal Court, after conviction of Capuano at Inferior Number Trial on 27^th November, 2013, and following guilty pleas by the remaining defendants to the following charges:

Mario Romano Capuano

First Indictment

1 count of:

Conspiracy to commit a statutory offence (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely diamorphine (heroin), contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999), contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 1).

Age: 45.

Plea: Not guilty.

Details of Offence:

First Indictment

Capuano was the Jersey principal/point of contact for the importation of 110 grams of heroin that was physically imported by McBride who fulfilled the role of courier. The heroin had a street value of £110,000 in Jersey. Mason acted as Capuano's lieutenant or gofer and she acted as a point of contact when Capuano was not available to contact the Scottish end of the conspiracy. She arranged Capuano's travel and the travel for McBride. She provided a safe house for Capuano and followed instructions by forwarding funds to Glasgow which the Crown inferred were payment for the purchase of the drugs in Glasgow.

Capuano denied any involvement but was found guilty after a trial. McBride had admitted the importation but denied being in conspiracy with anyone other than Mason. In interview his initial account was that he had been threatened to undertake the importation so as to clear a debt of a few thousand pounds. The Crown applied the Rimmer guidelines and took a starting point of 11 years for Capuano, 10 years for Mason and 9 years' imprisonment for McBride.

Second Indictment

A 19 year old friend of both defendants consumed a quantity of alcohol and a quantity of painkillers (Tramadol) at Mason's flat in the company of both the defendants. The Tramadol tablets had been prescribed to Mason. The defendants were concerned that the victim had died earlier in the morning but did not call an ambulance until early afternoon the same day. They both lied to the police who were investigating the matter as a sudden death. In particular both claimed to have no knowledge of where the friend had obtained the tablets from or having seen the victim taking any of the tablets.

Whilst Mason stood by her statement when interviewed under caution, Picot had provided two further statements over a period of 4 days in which he admitted his earlier lies and he provided a full account to the police when interviewed.

Details of Mitigation:

The Crown

Did not have the benefit of any mitigation.

The Defence

Did not show remorse as he maintained his innocence; suggested that because it was a majority decision there might have been some validity to his defence; he was not a well man; he suffered from a number of complaints; concerned at the impact on his relationship with his fiancée (Mason) if he received a long term of imprisonment. No previous drug convictions. Missing his adult son and an ill mother in Glasgow which was a cause for upset.

Previous Convictions:

22 convictions for 38 offences including indecent assault, ABH, robbery, house breaking, theft, fraud, handling stolen goods, motoring offences and failing to surrender custody at appointed time.

Conclusions:

First Indictment

Starting point 11 years' imprisonment.

Count 1:

11 years' imprisonment.

Forfeiture and destruction of drugs sought but delayed until position of further prosecution resolved.

Forfeiture and destruction of four mobile phones sought.

Sentence and Observations of Court:

Three defendants to be sentenced for the importation of 110 grams of heroin on the basis of the Crown's version of events. McBride was the courier, Capuano the organiser in Jersey, there was another organiser in Scotland and Mason assisting by making travel arrangements, moving money etc.

McBride put forward a different version of events at trial, that he had organised everything and that the only other person involved was Mason. The Court could not sentence on that basis because the version was disbelieved at trial. If the Court accepted McBride's version then this would increase his sentence because under his version he was more involved. Therefore no prejudice to him by sentencing on Crown's version of events.

Under the Rimmer guidelines 100-250 grams bracket produced a "starting point" of 10-13 years' imprisonment. The Court had taken into account the involvement of the individuals. The starting points were therefore:-

Capuano - 11 years

Mason - 10 years

McBride - 10 years

For Capuano none of the points made amounted to material mitigation and he was sentenced as per the starting point.

First Indictment

Conclusions granted.

Georgina Mary Mason

First Indictment

1 count of:

Second Indictment

1 count of:

Attempting to pervert the course of justice (Count 1).

Age: 29.

Plea: Guilty.

Details of Offence:

See Capuano above.

Details of Mitigation:

The Crown

First Indictment

Guilty plea albeit only entered 2 weeks before the trial. Not entitled to customary one-third. The Crown recommended a 25% discount for the guilty plea. Criminal record of little significance. First drug offence. To her credit that despite her relationship with Capuano she declined to give evidence on his behalf.

Second Indictment

She was the prime mover in the planning and provision of the false information to the police. She sought to persuade Picot to participate. She had a greater level of culpability. Guilty plea on Indictment. Not cooperative in interview.

The Defence

She accepted the Crown's summary of facts and was to be sentenced on the basis of the Crown's facts. She was not entitled to full one-third discount. She was the first to enter a guilty plea. For the Second Indictment she should receive full discount for guilty plea. She accepted the Crown's facts but did not accept Picot's true recollection of events. She accepted greated culpability than co-accused. She suffered health difficulties post operation. Very remorseful. Using time in prison positively. Invited the Court to consider totality.

Previous Convictions:

2 convictions for 3 offences for obstruction/refusing to obey police x 2 and resisting arrest.

Conclusions:

First Indictment

Starting point 10 years' imprisonment.

Count 1:

7 years' imprisonment.

Second Indictment

Count 1:

18 months' imprisonment, consecutive to Count 1 on the First Indictment.

Total: 8½ years' imprisonment.

Confiscation order in the nominal sum of £1 sought.

Forfeiture and destruction of drugs sought but delayed until position of further prosecution resolved.

Forfeiture and destruction of four mobile phones sought.

Sentence and Observations of Court:

See Capuano above.

First Indictment

Guilty plea was late therefore 25% reduction only. Treated as a person of good character. Previous offences were minor. Noted from psychologist's report that she was very strongly influenced by whichever boyfriend she was with. She had acted under the influence of Capuano. Made a 4 year deduction from the starting point.

Starting point 10 years' imprisonment.

Count 1:

6 years' imprisonment.

Second Indictment

Wanted to emphasise that she had not been charged with Mr Carr's death and the Court was not concerned with what she did or did not do in that respect. Charged with attempting to pervert the course of justice which relates to the lies that she had told in relation to the events the night before. She and Picot knew that Mr Carr had taken tablets the night before with alcohol. She had lied about this. The texts that she had sent showed that she had intended to tell lies about what had happened.

Count 1:

12 months' imprisonment, consecutive to Count 1 on the First Indictment.

Total: 7 years' imprisonment.

Confiscation order in the nominal amount of £1 made.

Forfeiture and destruction of drugs ordered but possibly delayed until position of further prosecution resolved.

Forfeiture and destruction of four mobile phones ordered.

Michael Morton McBride

First Indictment

1 count of:

Age: 21.

Plea: Guilty

Details of Offence:

See Capuano above.

Details of Mitigation:

The Crown

Guilty pleas albeit entered after Mason's plea. The Crown applied a 25% reduction. Youth: aged 20 at the time of the offence and at conviction. Provisions of 1994 Law applied. The Crown contended no other method of dealing with him other than custody due to the nature of the offence. He had a criminal record including a previous conviction for possession with intent to supply controlled drugs. Not shown any remorse for his involvement.

The Defence

Emphasised youth. The Court had a discretion whether to impose youth detention or imprisonment. On instructions the defendant happy to stay in prison. He had given three different versions of facts. He was to be sentenced on the Crown's version of events. He entered guilty plea late due to breakdown with original lawyers but had indicated a guilty plea to an importation as compared to conspiracy offence at an early stage. Difficult background. Unprepared for life.

Previous Convictions:

18 convictions for 35 offences including vandalism, breach of the peace, theft, possession of offensive weapons, disorderly conduct, possession of a controlled drug with intent to supply, acting in a threatening and abusive manner, breach of the peace and failing to comply with conditions of bail.

Conclusions:

First Indictment

Starting point 9 years' imprisonment.

Count 1:

6 years and 3 months' imprisonment.

Forfeiture and destruction of drugs sought but delayed until position of further prosecution resolved.

Forfeiture and destruction of four mobile phones sought.

Sentence and Observations of Court:

See Capuano above.

First Indictment

Had benefit of youth, aged 20 at the time of conviction. Too serious for a non-custodial sentence. Guilty plea was late. Change of plea was always open to him. 25% reduction applied. Poor record. Noted background report.

Starting point 9 years' imprisonment.

Count 1:

6 years' imprisonment.

Forfeiture and destruction of drugs ordered but possibly delayed until position of further prosecution resolved.

Forfeiture and destruction of four mobile phones ordered.

James Francis Picot

Second Indictment

1 count of:

Attempting to pervert the course of justice (Count 1).

Age: 21.

Plea: Guilty.

Details of Offence:

See Capuano above.

Details of Mitigation:

The Crown

Guilty plea on Indictment. He was cooperative and gave full account. Expressed remorse and regret. Aged 20 at the time of the offence but 21 when convicted and therefore the Crown applied approach in the case of AG-v-Cameron. Detention appropriate as no other method had been appropriate due to the offence being so serious. Had a criminal record. Previously breached non-custodial sentences. Background reports revealed history of drink and drug problems.

The Defence

Emphasis on age and cooperation with the police. He accepted the Crown's summary of facts. Picot had exceptional circumstances/request for mercy that a non-custodial sentence be imposed. He looked after fiancée's daughter, fiancée's dying father and his own mother. Turned his life around since the time of the offence. Shown remorse.

Previous Convictions:

None.

Conclusions:

Second Indictment

Count 1:

12 months' imprisonment.

Sentence and Observations of Court:

See Capuano above.

By his second and third statements he was moving towards the truth. He had done this within 4 days from the death and his first statement. His culpability was therefore short-lived. Exceptional circumstances enabling the Court to impose a non-custodial sentence.

Second Indictment

Count 1:

150 hours' Community Service Order equivalent to 9 months' imprisonment, plus an 18 month Probation Order and a 12 month Treatment Order.

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

Advocate A. T. H. English for Capuano.

Advocate S. E. A. Dale for Mason.

Advocate R. S. Tremoceiro for McBride.

Advocate L. A. Ingram for Picot.

JUDGMENT

THE BAILIFF:

1. Capuano, Mason, and McBride, you were involved in the importation of 110 grams of heroin which has a possible street value in Jersey of some £110,000. We are going to pass sentence on the Crown's version of events as set out in their summary. Therefore this is on the basis that McBride was the courier who imported the drugs concealed internally; Capuano was the organiser and the principal point of contact in Jersey, there being also an organiser in Scotland; and Mason assisted by making travel bookings, transferring money at Capuano's request, meeting McBride, and generally liaising over the arrangements in Jersey.

2. We should add that McBride has given a different version of events. He did this in the trial and through his counsel he has asserted that that is the version of events which he says happened. That is that he was the organiser and he organised everything and brought in the drugs; the only other person involved was Mason. That version was, of course, disbelieved in the trial; that is therefore one reason why we cannot sentence on that basis. We must proceed on the basis of the verdict in the trial. Secondly, where a defendant puts forward a different version of events which may affect sentencing, one may, of course, have to hold a Newton Hearing so that the Court can resolve which version to pass sentence upon. But in this case, the version put forward by McBride would result in a higher sentence than is moved for by the Crown, because on his version, his involvement was much greater than the involvement put forward by the Crown. Therefore we see no prejudice to McBride in sentencing on the Crown's version of events, which is what we do.

3. We must first, therefore, consider the starting points for the drug offence applying the well-known case of Rimmer and Others-v-AG [2001] JLR 373. This is a bracket involving 100-250 grams where the starting point is 10-13 years. The amount of drugs is obviously at the bottom of that band but on the other hand Capuano's involvement was as organiser and principal point of contact in Jersey; we therefore think that the correct starting point in his case is 11 years. In relation to Mason and McBride, we think that the correct starting point in each case is 10 years, namely at the bottom of the applicable bracket. The brackets are of course not set in stone, as Rimmer said, but we see no proper grounds for departing from the band in this case.

4. Turning then to Capuano and mitigation, we have to say that we do not consider any of the points made by Advocate English on his behalf amount to material mitigation and therefore we do not think there is any deduction from the starting point.

5. Capuano, the sentence in your case is one of 11 years' imprisonment.

6. Turning next to McBride and his mitigation, the first matter to note of course is that Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 applies to him in that he was 20 at the time of conviction i.e. when he pleaded guilty before this Court. However, we are quite satisfied that the offence in question is too serious to be dealt with by way of a non-custodial sentence. Nevertheless his youth is a significant mitigating factor. McBride pleaded guilty but it was late in the day, only two weeks before the trial. We have listened to the explanations given by his advocate and, whilst we understand there was a change of advocate, nevertheless it was always open to the defendant to plead at an earlier stage and therefore we think the discount should be 25%. McBride has a poor record so there is no mitigation in that respect but on the other hand we have had regard to the background report which shows an extremely difficult background and as we say, his youth is an important factor. Taking all these into account we think a deduction of 4 years is appropriate.

7. In your case the sentence will be 6 years and it is going to be imprisonment, as you have requested, rather than youth detention.

8. Before we consider passing sentence on Mason we must of course consider the Second Indictment which is before us, which relates to an attempt to pervert the course of justice by Mason and Picot. This arises out of the tragic death of Richard Carr. However, it is important to emphasise that Mason and Picot are not charged in connection with Richard's death; so any uncertainty as to when he died, and when these two defendants realised he was dead and whether they reacted responsibly at that time, are not for us to decide and are not relevant to the sentence in this case. All that is before us is the offence of attempting to pervert the course of justice and that relates solely to the lies which they told about the manner in which he had consumed drug tablets the night before. Because although both defendants knew that Richard had taken these tablets the night before, together with the alcohol which he and the others had been drinking, they lied to the police about this, no doubt in an attempt to exculpate themselves. It is clear from the text sent from Mason to Picot that she was the one who had the idea to tell the lies and we sentence on that basis. Mason continued to deny the position concerning the consumption of drugs repeatedly during interviews. To his credit Picot, on the other hand, began to tell the truth in his second statement and by the time of his third statement was, in effect, telling substantially the true position. This was given within a matter of four days from his original statements; so his attempt to mislead the police was short-lived before he corrected the position.

9. Having outlined the facts of that case we turn then to the sentence for Mason and first of all the drug offence. We take into account her guilty plea, but again it was late, and therefore we think the correct deduction is 25%. In her case we take into account in her favour that she is effectively a person of good character. She has three very minor public order offences but we treat her effectively as a person of good character. Most significantly it is quite clear from the psychological report that she is somebody who is very influenced by whoever her current boyfriend is and falls under his influence. At the time it was Capuano and we are satisfied that she carried out the offence very much under his influence. So taking account of these matters and everything else that is in the background report and has been put forward by her advocate, we think a deduction of 4 years is correct, so that the sentence on the drug offence, would be one of 6 years. As to the offence of attempting to pervert the course of justice we think that in all the circumstances of the case and having regard to totality, the correct sentence is one of 12 months.

10. Mason, in your case on the drug indictment the sentence is one of 6 years' imprisonment and on the other Indictment it is one of 12 months' imprisonment, consecutive, making 7 years in all.

11. Finally we come to Picot. As we have already said, you told the truth within about four days and that is clearly an important factor in considering the sentence which we should pass on you. You pleaded guilty from an early stage, you are a young man, you were 20 at the time but you were 21 at the time of your conviction. Nevertheless, in accordance with the case to which we have been referred, we do have regard to the terms of Article 4 of the 1994 Law, so we will only pass a sentence of imprisonment if there really is no alternative.

12. In your case you do appear to have made real strides since this happened, which was, of course, back in January 2013. There has been some delay since then, presumably because of the interaction with the drug offence. Your problem has been a chronic drug and alcohol misuse, but we are satisfied from the reports and the evidence before us that you really have tried to turn your life around since then. You have formed a new relationship since these events, you have become engaged, you have assumed responsibility for her child, you are helping to look after her very ill father, you appear to have addressed your drug and alcohol use and in all the circumstances we think that you really have made efforts to turn your life around. The recommendations from the Probation Service and the Alcohol and Drug Service are that the best course would be a Probation Order coupled with a Treatment Order.

13. Those who lie to the police must realise that they will usually end up serving a prison sentence but we are satisfied that this case is exceptional and we can and should proceed by way of a non-custodial sentence.

14. In your case we are going to impose a Probation Order of 18 months. We are also going to impose a Treatment Order with the Alcohol and Drug Service for 1 year, as recommended, but you must be punished too, so we are going to impose a Community Service Order of 150 hours' which we say is the equivalent of 9 months' imprisonment, which would have been the sentence we would otherwise have passed. Now you must realise, Mr Picot, that you must comply with these orders. So in relation to probation you must attend when you are directed and you must do what they say. Similarly with the Alcohol and Drug Service, you must attend, you must undergo any samples that they require you to provide and generally comply with their directions. Similarly with community service, you must attend punctually and work hard and do as they ask. Because if you do not do any of these things, if you do not turn up to any of them or if you do not comply with what they say, or of course if you reoffend, then you will be brought back here and you will be resentenced for what you have done and the likely result then, as you can imagine, is prison. So this is your chance and we hope that you take advantage of it.

15. Finally we order the forfeiture and destruction of the drugs, although we do allow for delay in relation to any possible further prosecution.

16. We also order the forfeiture of the telephones which were referred to.

Authorities

Rimmer and Others-v-AG [2001] JLR 373.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Kelly-v-AG [2001] JLR 108.

AG-v-Norris and Norris [2013] JRC 198.

AG-v-Cameron [2008] JRC 182.

Archbold Criminal Pleading Evidence and Practice 2013.

Thomas Current Sentencing Practice Part B1-8.

R-v-Bridgeman [2012] EWCA Crim 352.