Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - possession - Class A, B and C - possession of prohibited weapon - presentation of false document to an Immigration Officer.

[2014]JRC069

Royal Court

(Samedi)

17 March 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Le Cornu, Morgan, Marett-Crosby, Olsen and Blampied.

The Attorney General

-v-

Paul Filimon Motofelea

Ovidiu Lucaciu-Dina

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 7^th February, 2014, following guilty pleas to the following charges:

Paul Filimon Motofelea

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 (Counts 1).
1 count of:	Possession of a prohibited weapon, contrary to Article 33(1)(b) of the Firearms (Jersey) Law 2000 (Count 2).

Age:  32.

Plea: Guilty.

Details of Offence:

Motofelea stopped upon arrival in Jersey by Customs Officers at the harbour and asked whether he had any prohibited items and said "Yes a gun".  A replica Rohm 88 handgun was recovered from underneath the driver's seat of the car.  The gun had been designed to fire 9mm rubber projectiles and other types of blank or prohibited ammunition.  Motofelea stated that he had it for protection having previously been robbed whilst sleeping in his car (Count 2).

The Audi car was subject to a search and a total of 17.67 kilos of skunk cannabis was found concealed within the four doors of the car and also within the rear bumper.  Motofelea stated he had been given the cannabis to bring to Jersey by a fellow Romanian in Italy for which he had been paid €1,500 and a SIM card.  The wholesale price in Italy of 17.67 kilos was £31,800.  The wholesale value in Jersey: £106,020.  Street value in Jersey: £309,353.  Motofelea admitted that he had concealed the cannabis within the door panels et cetera.  He implicated his co-accused Lucaciu-Dina as being someone whom he had been in contact with prior to the importation and whom he was due to meet upon arrival (Count 1).

Lucaciu-Dina was arrested but denied all knowledge of the importation albeit admitted knowing Motofelea.  He was released pending further enquiries.  Testosterone worth £20 had been found during a search of his home (Count 3).

Six days later Customs Officers examined an unaccompanied Renault car booked to travel on 1 November from Jersey to St Malo.  A search revealed a number of documents in the name of Lucaciu-Dina (Count 5).  Cash in the sum of £9,810 was found concealed within a number of X-box game cases.  A quantity of tablets/powder suspected of being ecstasy was also found.

On 1 November Lucaciu-Dina attempted to leave the Island using a false Romanian identification card.  He was recognised and arrested.  He was found to be in possession of 8 suspected ecstasy tablets (Count 5).  A total 28 MDMA tablets and 1.48 grams of MDMA powder was found with a street value of £400 (Count 4).

Lucaciu-Dina admitted that he knew that Motofelea was importing cannabis although he thought it was at a lesser amount between 2 and 5 kilos. His role was to introduce him to dealers for the onward supply of the cannabis.  He was attempting to leave the Island because of the cannabis importation.  He admitted possession of the ecstasy tablets which was for his personal use.  His intention was to evade detection by Customs Officers by using the false ID et cetera. 

For the purposes of a starting point the Crown under the Campbell guidelines had taken a starting point of 8 years' imprisonment.  The Crown did not seek to distinguish between the roles played by the two defendants. Crown treated the exportation of the ecstasy tablets as a separate and distinct offence warranting a consecutive sentence.

Details of Mitigation:

The Crown

Guilty plea.  Man of good character.  Cooperative in interview, made admissions and implicated co-accused.

The Defence

Guilty plea.  Previous good character and co-operation.  Did not seek to minimise his involvement.  Low risk of re-conviction.  Taking advantage of educational opportunities whilst in prison.  Remorse.

Previous Convictions:

None.

Conclusions:

Starting point 8 years' imprisonment.

Count 1:	5 years' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total: 5 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Forfeiture and destruction of the phones and devices identified sought.

Forfeiture and sale of the Audi seized, with proceeds of sale being paid to the Drug Trafficking Confiscation Fund sought.

Confiscation Order in the sum of £204.41 sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1 was the most serious count against the two defendants for the importation of cannabis.  Motofelea had imported just under 18 kilos of skunk cannabis and he had concealed the 89 packages within the car.  The wholesale value in Italy was £31,000 compared to £106,000 in Jersey and a street value in Jersey of £309,000.  Motofelea committed the offence with Lucaciu-Dina. Also in the car was a replica Rohm firearm which fired rubber bullets and other projectiles.

Lucaciu-Dina pleaded guilty to the exportation of 28 ecstasy tablets and powder and had been found with false identification on his embarkation.  He also had possession of a Class C drug - testosterone.  Lucaciu-Dina had admitted his intention to flee the Island following his interview in relation to Count 1.

The Court agreed that the correct starting point of 8 years had been taken by the Crown and the Court saw no distinction between the roles of the two defendants.  The Court had considered the submissions of Defence counsel for Lucaciu-Dina, given all the evidence the Court had no confidence in his explanations.  The importation of cannabis was not a victimless crime.  It was dangerous to the Island's community.  Motofelea's involvement was for financial gain.  It was agreed that the Crown's Conclusions of 5 years for both defendants on Count 1 was correct.  The Court noted that Motofelea was probably not entitled to the full one third as he was caught red-handed but he entered a very early guilty plea and was very co-operative.  He had not sought to minimise his involvement.  No previous convictions and the Court had noted his references et cetera.

In so far as concerns the possession of the prohibited firearm, the Court agreed with the Crown's conclusions of 12 months' imprisonment.  Normally the importation of a prohibited weapon would result in a consecutive sentence but on the grounds of totality the Court agreed that the sentence should be concurrent.

Conclusions granted.

Ovidiu Lucaciu-Dina

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).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).
1 count of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the exportation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 4).
1 count of:	Knowingly presenting an Immigration Officer a false identification document, contrary to Section 26(1)(d) of the Immigration Act 1971 (as extended to Jersey by the Immigration (Jersey) Order 1993) (Count 5).

Age:  37.

Plea: Guilty.

Details of Offence:

See Motofelea above.

Details of Mitigation:

The Crown

Guilty plea; pleas all entered before Magistrate's Cour save for Count 1 on Indictment.  Made admissions; cooperative; previous good character.

The Defence

Sought to distinguish role and claimed Lucaciu-Dina had lesser role.  He was to introduce people that he knew used cannabis in Jersey.  no financial advantage.  Guilty plea and good character.  Extremely remorseful.  Low risk of re-offending.

Previous Convictions:

None.

Conclusions:

Starting point 8 years' imprisonment.

Count 1:	5 years' imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	12 months' imprisonment, consecutive to Count 1.
Count 5:	1 month's imprisonment, concurrent.

Total: 6 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Forfeiture and destruction of the phones and devices identified sought.

Confiscation Order in the sum of £9,119 sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

See Motofelea above.

Guilty pleas carry more weight. Entitled to full allowance given the circumstances. But he was not cooperative.  Lack of criminal record and positive character. The Court agreed the Crown's conclusions were correct

Starting point 8 years' imprisonment.

Count 1:	5 years' imprisonment.
Count 3:	No separate penalty.
Count 4:	3 months' imprisonment, consecutive to Count 1.
Count 5:	3 months' imprisonment, consecutive to Count 1 and 4.

Total: 5 years 6 months' imprisonment.

Forfeiture and destruction of the drugs ordered.

Forfeiture and destruction of the phones and devices identified ordered.

Confiscation Order amount disputed so left over for determination on a date to be fixed.

Recommendation for deportation made.

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

Advocate C. M. Fogarty for Motofelea.

Advocate S. E. A. Dale for Lucaciu-Dina.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment which contains a number of counts against the two of you individually and one count, which is the most serious count, against the two of you together, that is being knowingly concerned in the fraudulent evasion on the prohibition on the importation of a controlled drug, cannabis. 

2.        Mr Motofelea imported just under 18 kilograms of skunk herbal cannabis in 89 packages concealed in a car brought to the Island on the car ferry from St Malo.  He packed the car himself.  The cannabis had been purchased in Italy where the estimated wholesale price was £31,800.  The wholesale consignment value in Jersey would have been approximately £106,000 and the street value approximately £309,000.  Mr Motofelea committed this offence with the second defendant, Mr Lucaciu-Dina.  Also in the car Mr Motofelea had with him a replica Rohn 88 handgun designed to fire and capable of firing rubber bullets and other types of blank ammunition. 

3.        The second defendant, Mr Lucaciu-Dina has pleaded guilty to being knowingly concerned in the exportation of some MDMA tablets- there were somewhere between 20 and 28, with other powder attached to them- with a total weight of 5.86 grams; also presenting a false identification document to Immigration Officers on embarkation; and possession of a small quantity of testosterone, which is a Class C drug.  The second defendant was seeking to leave the Island on the false identification papers following a first interview by the police on the subject matter of Count 1, the serious charge of being knowingly concerned in the importation of cannabis. 

4.        The Court first of all looks at a starting point on the importation charge and applies the guidelines of Campbell-v-AG [1995] JLR 136.  This case falls in the second bracket and we have to find a starting point within 6-10 years.  We think the right starting point for each defendant is 8 years. We do not think there is any distinction to be drawn between them on the information available to us. 

5.        We have considered carefully the mitigation of Miss Dale on behalf of the second defendant, but we have taken account of the fact that there seems to us to be a history of deceit in the approach of the second defendant.  He has a false identification card, his explanation to probation as to the attempted use of the green card to enter the United States, coupled with the numbers of telephones and breaches of bail, all lead us to have no confidence at all in the explanations which have been put before us, and accordingly we do not draw any distinction between the two defendants in relation to the starting point.  The importation of cannabis is not a victimless crime. The offence is there because the drug is recognised as dangerous to the health of our Island community.  In relation to the first defendant it was an offence committed for admitted financial gain. 

6.        In the circumstances we have taken the view that the Crown's conclusions of 5 years' imprisonment for each of the two defendants on Count 1 are correct.

7.        We think that the first defendant was probably not entitled to a full discount for a guilty plea, in the sense that it was quite clear that he was caught actually importing the drugs in his car, but on the other hand he entered a very early plea of guilty and he was very cooperative with the police and did not, as his counsel put it, seek to minimise his involvement and did not waste anyone's time.  He has no previous convictions that are relevant and we have looked carefully at the references that have been put before us and his own expressions of remorse which was have accepted.  In the circumstances we think that the sentence of 5 years' imprisonment on Count 1 is correct. 

8.        In relation to the possession of a prohibited weapon we think the Crown was right to look at a sentence of 12 months' imprisonment on this charge.  We also think that normally importing a prohibited weapon of this kind would lead to a consecutive sentence.  In this case we are going to impose a concurrent sentence only on grounds of totality.

9.        Mr Motofelea on Count 1 you are sentenced to 5 years' imprisonment and on Count 2 to 12 months' imprisonment, concurrent, making a total of 5 years' imprisonment.

10.      In relation to Mr Lucaciu-Dina we think that the guilty plea carries more weight and we therefore give a fuller allowance in relation to the guilty plea.  On the other hand he has not been so cooperative with the police and in the circumstances, having had regard to the lack of relevant criminal record, therefore his good character and having regard to matters which are relevant in the background report, we think the right sentence is a total of 5 years' imprisonment on Count 1.

11.      We now turn to the remaining charges and on Count 3 which is the possession of testosterone, we are not going to impose any separate penalty.  That is so because in the context of the other offences it is difficult to put a sensible sentence to that charge.  In relation to Count 4, which is being knowingly concerned in the exportation of ecstasy, we think the right sentence is a consecutive sentence and we think the right sentence is one of 3 months' imprisonment.  We are treating this amount of ecstasy as being for personal use in the absence of any evidence to the contrary and we have therefore decided that 3 months' imprisonment is the correct sentence to impose on that charge.  Count 5 is a charge of presenting a false identification document.  It was a document which the second defendant had, apparently, acquired in Romania some months before.  Quite why he acquired it we have not been told, but we note that the maximum sentence under the relevant immigration statutes is 6 months' imprisonment for this offence.  We think 1 month, as proposed by the Crown, is too low and we think that it merits a 3 month sentence.  We also think it is a completely different offence from both the exportation of the ecstasy and the being knowingly concerned in the importation of the cannabis, and therefore it is going to carry a custodial sentence which is consecutive to the other sentences which have been imposed.

12.      Mr Lucaciu-Dina you are therefore sentenced to 5 years' imprisonment on Count 1; no separate penalty on Count 3; 3 months' imprisonment on Count 4, consecutive; 3 months' imprisonment on Count 5, consecutive to both Counts 1 and 4, making a total of 5 years and 6 months in all.

13.      We order the forfeiture and destruction of the drugs seized and of the Samsung mobile belonging to Mr Motofelea, and the Apple iPhones, the iPod, the Motorola phone and the Airtel Vodafone SIM card of Mr Lucaciu-Dina.

14.      We have given consideration to the question of the forfeiture of the Audi car.  In our view there is no doubt that this vehicle was used for the purpose of bringing in a substantial quantity of drugs.  It is said by Ms Fogarty that the car belongs to the first defendant's father who is unwell and who wishes to have the car realised for the purposes of applying the proceeds of sale to medical expenses which the first defendant's father and mother have incurred recently in Romania.  We note that the father's letter to us, giving a reference for his son, does not describe the car as belonging to him and we also note that the father appears to be in Romania and at any event the car, as we say, was in the possession of the first defendant and was substantially adapted for carrying the cannabis into the Island.  In the circumstances we think it is right that the car be forfeited and sold and the proceeds applied to the Drug Trafficking Confiscation Fund and we so order.

15.      We now turn to the question of deportation.  It is not a matter which has been opposed by either defendant.  There is no doubt that for the offence of being knowingly concerned in importing cannabis into the Island the first branch of the test set out in Camacho-v-AG [2007] JLR 462 is met.  Therefore we then have to consider whether there are any particular ties to this jurisdiction or Human Rights requirements which would be taken into account such that the defendants should not be the subject of a deportation recommendation.  We do not see that any such factors arise here and in the circumstances we are going to recommend to the Lieutenant Governor that both defendants be deported when they have served their sentences.

Authorities

Campbell-v-AG [1995] JLR 136.

Camacho-v-AG [2007] JLR 462.

Bonnar and Noon-v-AG [2001] JLR 626.

Firearms (Jersey) Law 2000.

Immigration (Jersey) Order 1993.

Misuse of Drugs (Jersey) Law 1978.