Sir Michael Birt, Kt., Bailiff, and Jurats Kerley and Crill.
The Attorney General
Paul Martin Dolan
Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:
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).
Details of Offence:
Customs stopped the defendant after disembarking the ferry and questioned him. After several hours, the defendant informed customs that he was concealing eight packages internally. In interview he stated he believed the packages to contain drugs. All eight packages were seized and contained a total of 104.65 grams of brown powder which contained mostly paracetamol and caffeine, traces of morphine and six acetylmorphine which were below the limit for quantification using the States analyst routine methods. The wholesale value totalled £16,000.00 and the street value £104,000.00 (Count 1).
Details of Mitigation:
Guilty plea, co-operative and low-purity of drugs.
27 previous convictions of which 5 are drug related.
2½ years' imprisonment.
Confiscation Order sought in the sum of £244.27.
Forfeiture and destruction of drugs sought.
Sentence and Observations of Court:
3½ years' imprisonment.
Confiscation Order made in the sum of £244.27.
Forfeiture and destruction of drugs ordered.
C. M. M. Yates, Esq., Crown Advocate.
Advocate S. E. A. Dale for the Defendant.
1. You imported 105 grams of powder concealed internally. We are quite satisfied that you thought you were importing a controlled drug even though you may not have known that it was heroin, and we proceed on the basis that you did not believe it to be heroin. As it turned out the powder in fact contained only a minute amount of morphine, the bulk of the powder being paracetamol with some caffeine, both of these being compounds commonly used to dilute heroin. The analyst states that the morphine is most likely to have been due to a minute quantity of degraded heroin. Now had this in fact been 105 grams of heroin of ordinary strength the starting point in accordance with the Rimmer Lusk and Bade-v-AG  JLR 373 guidelines would have been 10 years; so the likely sentence after mitigation would have been something in the region of 6-7 years.
2. We were referred to the case of AG-v-Deadman and Hall  JRC 154 where the court took the view that it was not appropriate to apply the Rimmer guidelines in their full vigour when, as in that case, the defendants attempted to import 79 grams of powder which they believed to be heroin, but which, in fact, contained less than 1% of diamorphine, an amount so low as to be close to the limit of detection. The court in that case imposed sentences of 2 years' imprisonment and 18 months' youth detention.
3. We have also been referred to Hasson-v-AG  JCA 124 where the Court of Appeal reduced a sentence from 6 to 5 years where Hasson had pleaded guilty to possession with intent to supply heroin, which was of 7% purity and the amount involved was some 34.23 grams. The Court of Appeal in that case proceeded on the basis that heroin of less than 10% purity was, in effect, unmarketable.
4. Similarly in the English case of R-v-Afzal and Arshad (1991) 13 Cr App R (S) 145 there was an importation of 1.23 kilos of heroin which was of less than 1% purity. The court held that a reduction in sentence from that which would otherwise have been passed, was appropriate where the strength of heroin was so low that the substance was, in effect, unsaleable or if sold, would expose the seller to retaliation by dissatisfied customers. Nevertheless the court imposed sentences of 8 and 5 years' imprisonment in that case.
5. We agree with the court in Deadman and Hall that a significant reduction in the sentence which would otherwise be passed should be given where the purity is as low as it is in this case and as it was in that case. But the fact remains that a person in the defendant's position is intending to import a controlled drug and to add to the supply of such drug in the Island with all the undesirable consequences which follow from that. It is no thanks to him that the substance turns out to be so weak that it is, in effect, unsaleable or will give rise to retaliation, or may not even be a controlled drug at all so that the offence is technically one of attempt. We have to say that we think the defendants in Deadman and Hall can consider themselves quite fortunate in the sentences which were passed.
6. We take into account in mitigation the guilty plea and all that has been urged upon us by Advocate Dale to whom we have listened carefully. We also take into account the other mitigation available on the papers. Nevertheless, having regard to the sentences passed in Hasson and in the English case to which we have referred, we think that the conclusions of the Crown do not adequately reflect the gravity of what the defendant intended to do in this case and what he did everything in his power to do. As we say, the fact that it turned out that the purity was so low was no thanks to him.
7. In all the circumstances we think that the minimum sentence that we can properly pass is more than that moved for by the Crown.
8. The sentence which we pass is one of 3½ years' imprisonment.
9. We order the forfeiture and destruction of the drugs.
R-v-Afzal and Arshad (1991) 13 Cr App R (S) 145.