Jersey Unreported Judgments

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

[2015]JRC030A

Royal Court

(Samedi)

11 February 2015

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Fisher, Marett-Crosby, Nicolle, Milner, Le Breton and Le Cornu.

The Attorney General

-v-

Ibrahim Abdullah Roslan

Nicholas Whitcombe

Alistair James Lagadu

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 6^th January, 2015, following guilty pleas to the following charges:

Ibrahim Abdullah Roslan

3 counts of:	Conspiracy to be 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, and 4).
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 3).
2 counts of:	Supply of a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Counts 5 and 6).
1 count of:	Possession of a controlled drug with intent to supply it to another, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 7).

Age:  26.

Plea: Guilty.

Details of Offence:

Roslan moved to Jersey from the UK and began ordering drugs from Whitcombe.  Whitcombe employed a sophisticated packaging system that enabled drugs to be sent by post.  Whitcombe could provide any drugs that Roslan specified, within two days, including MDMA tablets of any specified purity and appearance.  The first planned importation consisted of two nine-bars of cannabis (Count 1) and 300 ecstasy tablets (Count 2) apparently posted to the home of an innocent friend of Roslan.  Within days there had been a second importation, of 1Kg Mephedrone (Count 3), and an agreement to import a further 300 ecstasy tablets (Count 4).  Roslan sold 2oz of the Mephedrone to Lagadu and 2oz to another Jersey resident (Counts 5 and 6).  Whitcombe flew to Jersey to attend a meeting at a café with the others.  All three defendants were arrested, Roslan in possession of a "tester" sample of Mephedrone in his sock (Count 7).  £1400 was found in Whitcombe's hotel room.  Whitcombe had been awaiting prosecution in England for a drugs trafficking offence that he admitted. 

Lagadu had sent messages to Roslan seeking to purchase an unspecified quantity of ecstasy tablets of which he thought he could "shift loads" (Count 8).  Lagadu pleaded on the basis that the quantity sought was between ten and fifty tablets.  Lagadu's home contained a small cannabis plant and personal quantities of cannabis resin and Mephedrone (Counts 9-11). 

Details of Mitigation:

Character, family support, plea, remorse, co-operation including unsolicited offer to give evidence against co-accused. 

Previous Convictions:

None. 

Conclusions:

Count 1:	Starting point 18 months' imprisonment; 7 months' imprisonment, concurrent to Count 2.
Count 2:	Starting point 10 years' imprisonment; 3½ years' imprisonment.
Count 3:	Starting point 4 years' imprisonment; 18 months' imprisonment, concurrent.
Count 4:	Starting point 10 years' imprisonment; 3½ years' imprisonment, concurrent.
Count 5:	Starting point 12 months' imprisonment; 5 months' imprisonment, concurrent.
Count 6:	Starting point 12 months' imprisonment; 5 months' imprisonment, concurrent.
Count 7:	Starting point 12 months' imprisonment; 5 months' imprisonment, concurrent.

Total: 3½ years' imprisonment. 

Compensation Order sought in the sum of £1.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Conclusions granted.

Nicholas Whitcombe

3 counts of:	Conspiracy to be 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 and 4).
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 (Count 3).

Age:  24.

Plea: Guilty.

Details of Offence:

See Roslan above.

Details of Mitigation:

Plea, remorse, support of family, treated as a first offender.  Claimed that he was merely following the instructions of a third party throughout. 

Previous Convictions:

1 conviction for assault as a youth. 

Conclusions:

Count 1:	Starting point 18 months' imprisonment; 10 months' imprisonment, concurrent to Count 2.
Count 2:	Starting point 10½ years' imprisonment; 6 years' imprisonment.
Count 3:	Starting point 4 years' imprisonment; 2½ years' imprisonment, concurrent.
Count 4:	Starting point 10½ years' imprisonment; 6 years' imprisonment, concurrent.

Total: 6 years' imprisonment. 

Compensation Order sought in the sum of £1,618.20.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Conclusions granted.

Alistair James Lagadu

1 count of:	Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 8).
1 count of:	Production of a controlled drug, contrary to Article 5(a) of the Misuse of Drugs (Jersey) Law 1978 (Count 9).
2 Counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 10 and 11).

Age:  22.

Plea: Guilty.

Details of Offence:

See Roslan above.

Details of Mitigation:

Plea, remorse, support of family and girlfriend, residual youth. 

Previous Convictions:

45 previous convictions, including 3 for personal possession of drugs. 

Conclusions:

Count 8:	Starting point 7 years' imprisonment; 2½ years' imprisonment.
Count 9:	2 months' imprisonment, concurrent.
Count 10:	2 weeks' imprisonment, concurrent.
Count 11:	2 months' imprisonment, concurrent.

Total: 2½ years' imprisonment. 

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Count 8:	Starting point 7 years' imprisonment; 2 years' imprisonment.
Count 9:	2 months' imprisonment, concurrent.
Count 10:	2 weeks' imprisonment, concurrent.
Count 11:	2 months' imprisonment, concurrent.

Total: 2 years' imprisonment. 

Forfeiture and destruction of the drugs ordered. 

D. J. Hopwood, Crown Advocate.

Advocate J. W. R. Bell for Roslan.

Advocate S. E. A. Dale for Whitcombe.

Advocate C. Hall for Lagadu.

JUDGMENT

THE commissioner:

1.        The three defendant's stand to be sentenced in relation to a number of drug-related offences.  The most serious offences relate to Roslan and Whitcombe and two importations of 300 ecstasy tablets each; those are Counts 2 and 4.  In AG v Gaish [2006] JRC 109 the approach of the Court in a case of this kind was not to impose a number of consecutive sentences but to fix upon concurrent sentences taking a starting point based upon the band that would apply to the total quantity imported.  Following that approach, which we endorse, and applying the Bonnar and Noon v AG [2001] JLR 626 guidelines the Crown move for an initial starting point of 9 years for Roslan and 9½ years for Whitcombe. 

2.        The Crown see these importations as something of a partnership in which both defendants were organisers; Whitcombe organising the wholesale procurement and despatch from the UK and Roslan the sales and distribution in Jersey.  However the overall plan, in the view of the Crown, was that of Whitcombe and he played a senior role; hence the Crown seeking a slightly higher starting point for him. 

3.        In addition to these importations Whitcombe and Roslan also stand to be sentenced firstly for the importation of 500 grams of cannabis resin, which falls below the lowest band in Campbell v AG [1995] JLR 136 (that is Count 1) for which the Crown seeks starting points of 18 months for both defendants and, secondly, for the importation of 1 kilogram of Mephedrone (that is Count 3) one of the" new psychoactive substances" for which the Crown seeks a starting point of 4 years for both defendants.  The Crown submits the defendants should be sentenced for the importation of this cannabis resin and Mephedrone concurrently with the ecstasy importations but with a Valler uplift (Valler v AG 2002/133) in order to reflect the extent of their criminal conduct in importing three different drugs into the Island.  On this basis the Crown seek an increase in the starting points on Counts 2 and 4 to 10½ years for Whitcombe and 10 years for Roslan.  Taking into account all of the mitigation available the Crown then seek total concurrent sentences of 3½ years for Roslan and 6 years for Whitcombe. 

4.        In this respect it is relevant to note that before the mobile phone analysis was obtained by the police, an analysis which formed the bedrock of the Crown's case, Roslan had named Whitcombe as his supplier and offered to give evidence against both Whitcombe and Lagadu.  The Court has always sought to reward defendants who have the courage to cooperate in this way, hence the Crown seeking a much lower sentence for Roslan in that respect. 

5.        In addition to this Roslan stands to be sentenced for two counts of supplying 28 grams of mephedrone to Lagadu and another person unknown, (those are Counts 5 and 6), and one count of possession of 9.57 grams of Mephedrone with intent to supply, (that is Count 7).  The Crown seeks starting points of 12 months for these offences, reduced to 5 months allowing for mitigation to be served, again concurrently. 

6.        Turning to Lagadu, he stands to be sentenced for one count of being concerned in the supply of 10 to 50 ecstasy tablets, (that is Count 8), one count of production of cannabis (this relates to a single immature cannabis plant to which no value has been ascribed), (that is Count 9), and two counts of possession of small quantities of cannabis resin and Mephedrone, (those are Counts 10 and 11).  The most serious charge is, of course, being concerned in the supplying of the ecstasy tablets, a Class A drug.  This offence has a wide ambit and following AG v Antunes, Saraiva and Viveiros [2003] JLR 144 applying the guidelines could result in excessive sentences for those involved on the periphery.  In this case the Crown say that Lagadu was not on the periphery.  He set about obtaining between 10 and 50 tablets to sell to his friends and to consume a proportion himself.  This quantity would put him in the lower of the bands and the Crown seeks a starting point there of 7 years.  He was 21 when he committed these offences and has the benefit of some residual youth but he does have a bad record and allowing for this and other mitigation the Crown move for a total sentence of 2½ years' imprisonment. 

7.        We have listened to the mitigation put forward by all three counsel.  In terms of Roslan, he has no convictions and is therefore of good character; he has pleaded guilty and has written us a good letter of remorse and we have letters in support by his family.  As indicated earlier the most powerful mitigation in his case is the evidence that he is prepared to give against Whitcombe and Lagadu before the police had analysed the phone records and, as we have just said, it is the policy of the Court to reward people who have the courage to do this and also to encourage others to do the same and for that reason the Crown have already moved for a very substantial reduction. 

8.        Turning to Whitcombe, he has one conviction for an assault in 2004 but we are prepared to treat him as a first offender.  He pleaded guilty although he did deny the offences when interviewed by the police and had to be arrested in England and brought back to the Island.  He has written a good letter of remorse and he too has support from his family.  In particular in his case, the offending has separated him from his young daughter and from his new child who is about to be born at any time now.  We have heard what Advocate Dale has said about threats made, he says, to him but, as made clear in AG v Stefanek [2011] JRC 198 we cannot take those threats into account.  They cannot be verified and the Crown have not done so, as it did in the case of AG v Hogan [2008] JRC 207.  Drug dealers must accept the risks that go with putting themselves in that position. 

9.        Mr Lagadu has pleaded guilty but, as we have previously mentioned, he does of course have a bad record including three drugs offences.  He is, as we have already said, the youngest of the defendants, only 21½ at the time of the offences.  He has written us a good letter of remorse and he has the support of his family and his girlfriend who are present in Court. 

10.      In terms of our decision, we agree with the starting points put forward by the Crown for each of the defendants, having applied the principles set out in Gaish and Valler, notwithstanding the submissions put forward to us by defence counsel, which we considered carefully.  In our view the text messages recovered by the police give a clear indication of the extent of their involvement in the trafficking of these drugs and we agree with the assessment of the Crown which we have just read out to you. 

11.      Furthermore, in relation to Whitcombe and Roslan, we agree with the conclusions of the Crown and in doing so we have considered all of the mitigation that has been put forward, not all of which we have been able to summarise.  As we have said Roslan has a very substantial reduction for the reasons given and that exceptional sentence must not be used by either of the other defendants as a ground for suggesting that there is an unfair disparity.

12.      Turning finally to Lagadu, we were impressed by the mitigation most ably put forward by Advocate Hall and have given anxious consideration to whether a non-custodial sentence could be justified.  We have concluded that it cannot be because his involvement in drug dealing, as exemplified by the text messages, is just too great.  His involvement was not peripheral and the policy of the Court in relation to the trafficking of Class A drugs must and will be applied.  We will however reduce the conclusions very slightly. 

13.      Mr Roslan, in relation to Count 1 you are sentenced to 7 months' imprisonment, concurrent with Count 2.  In relation to Count 2: 3½ years' imprisonment, Count 3; 18 months' imprisonment, concurrent, Count 4; 3½ years' imprisonment, concurrent, Count 5; 5 months' imprisonment, concurrent, Count 6; 5 months' imprisonment, concurrent and Count 7; 5 months' imprisonment, concurrent.  That makes a total of 3½ years' imprisonment. 

14.      Mr Whitcombe, on Count 1 you are sentenced to 10 months' imprisonment, concurrent with Count 2.  On Count 2; 6 years' imprisonment, on Count 3; 2½ years' imprisonment, concurrent, on Count 4; 6 years' imprisonment, concurrent.  That makes a total of 6 years' imprisonment. 

15.      Mr Lagadu, on Count 8 you are sentenced to 2 years' imprisonment, on Count 9; 2 months' imprisonment, concurrent, on Count 10; 2 weeks' imprisonment, concurrent, on Count 11; 2 months' imprisonment, concurrent.  That makes a total of 2 years' imprisonment. 

16.      We also order the forfeiture and destruction of the drugs. 

Authorities

AG v Gaish [2006] JRC 109.

Bonnar and Noon v AG [2001] JLR 626.

Campbell v AG [1995] JLR 136.

Valler v AG 2002/133.

AG v Antunes, Saraiva and Viveiros [2003] JLR 144.

AG v Stefanek [2011] JRC 198.

AG v Hogan [2008] JRC 207.

AG-v-Dryden [2014] JRC 172.

AG-v-Allardice and Humphrys [2013] JRC 051.

AG-v-Huish [2014] JRC 194.