Jersey Unreported Judgments

Inferior Number Sentencing - arranging possession of criminal proceeds - possession of criminal proceeds - drugs - possession - Class C.

[2017]JRC040B

Royal Court

(Samedi)

14 March 2017

Before     :

Sir Michael Birt, Commissioner, and Jurats Crill and Liston

The Attorney General

-v-

David Whelan

Stephen James Grace

Stuart Michael Robinson

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

David Whelan

1 count of:	Entering into or becoming concerned in an arrangement that facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person, contrary to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999 (Count 1).
1 count of:	Having possession or control of criminal property, contrary to Article 30(1) of the Proceeds of Crime (Jersey) Law 1999 (Count 2).
5 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 4, 5, 6, 7 and 8).

Age:  43.

Plea: Guilty.

Details of Offence:

On 13^th May, 2016, Grace and Robinson travelled in a hire car to Jersey on the Condor Liberation from Poole.  They were the subject of a Customs and Excise surveillance operation from the time of their arrival.  Officers stopped them at customs, and they claimed that they were in Jersey for a fishing trip.  They were allowed to proceed.  The following morning they were seen to take the car to People's Park.  They parked it and left it unlocked.  Whelan approached the car and got inside.  Whelan was arrested.  As he got out of the car, he dropped a mini screwdriver and socket set.  Grace and Robinson were arrested at their hotel. 

A search of the car revealed a Blackberry mobile telephone in the glove compartment, which was open.  A ripped piece of paper under the screen protector had what appeared to be a coded message written on it. 

Whelan's van and home address were searched, and the drugs in Counts 4 to 8 were found.  In the loft of Whelan's address, officers found a black suitcase, which contained a blue holdall.  Inside the holdall was a plastic bag containing £40,020. 

In interview, Whelan answered "no comment" to all substantive questions.  In a second interview, Whelan was questioned about his finances.  He denied having any income other than his wages.  However, in relation to the cash found in the attic, he stated that this was savings from private work and gambling.  He refused to give further details.  He also denied being a drug user until informed of the drugs found in his home and van.  He denied knowing Grace and Robinson. 

Grace maintained that he and Robinson had travelled to Jersey for leisure. 

Robinson initially also stated he had come to Jersey for leisure, but then admitted that they had travelled to the Island for financial gain and were to be paid £500 each to bring the hire car over and leave it unlocked at an agreed location overnight in order that an unknown third party could conceal cash within it.  He was also given £1,000 for expenses.  Robinson admitted that he suspected that the cash would be the proceeds of crime. 

Whelan was released from custody, but analysis of a tracked attached to his van showed that he had stopped in Belvedere Terrace a few hours before his arrest.  A nearby garage, rented by Whelan, was searched, and a toolbox containing £80,000 in mail bags was seized.  Whelan was again arrested.  In interview he denied knowing the man from whom he rents the garage, and otherwise gave largely "no comment" answers. 

Whelan's basis of plea to Count 1, which was accepted by the Crown, was that he suspected (rather than knew) that the garage he rented would be used for money laundering. 

Whelan's basis of plea to Count 2 was that the £40,020 in his loft was legitimate savings, and a proportion of it represented the proceeds of crime (namely failure to declare income to the tax department).  This basis was rejected by the Jurat, who found that the Crown had proved that the cash was the proceeds of an unspecified crime other than tax evasion. 

Details of Mitigation:

Crown: Guilty pleas to Counts 1, 2, and 4 - 8 (though pleas to 1 & 2 entered on the morning of trial, and the basis to Count 2 rejected by the Jurats but maintained in Social Enquiry Report.)

Defence: No knowledge of the predicate offences (relevant to Count 1 only).

Previous Convictions:

More than 30 previous convictions, including a 6½ year sentence for supplying Class A drugs.

Conclusions:

Whelan's involvement with the money laundering was greater than Grace and Robinson's.  The most likely underlying criminal activity was drug trafficking, and a deterrent sentence is warranted. 

Count 1:	3 years and 9 months' imprisonment.
Count 2:	3 years and 9 months' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	3 years' imprisonment, concurrent.
Count 7:	3 years' imprisonment, concurrent.
Count 8:	3 years' imprisonment, concurrent.

Total: 3 years and 9 months' imprisonment. 

Confiscation Order sought in the sum of £40,727.19

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Count 1:	27 months' imprisonment.
Count 2:	15 months' imprisonment, consecutive to Count 1.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	3 years' imprisonment, concurrent.
Count 7:	3 years' imprisonment, concurrent.
Count 8:	3 years' imprisonment, concurrent.

Total: 3 years and 6 months' imprisonment.

Confiscation Order made in the sum of £40,727.19.

Forfeiture and destruction of the drugs ordered.

Stephen James Grace

1 count of:

Entering into or becoming concerned in an arrangement that facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person, contrary to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999 (Count 1).

Age:  49.

Plea: Guilty.

Details of Offence:

See Whelan above.

Details of Mitigation:

Crown: Guilty plea, low risk of reconviction, no previous convictions. 

Defendant: Out of character, no knowledge of predicate offence, remorse, cooperation with financial investigation. 

Previous Convictions:

None.

Conclusions:

See Whelan above.

Count 1:

2 years imprisonment.

Total: 2 years imprisonment. 

Confiscation Order sought in the sum of £180.

Sentence and Observations of Court:

Count 1:

2 years' imprisonment.

Total: 2 years imprisonment.

Confiscation Order made in the sum of £180.

Stuart Michael Robinson

1 count of:

Entering into or becoming concerned in an arrangement that facilitates, by any means, the acquisition, use, possession or control of criminal property by or on behalf of another person, contrary to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999 (Count 1).

Age:  45.

Plea: Guilty.

Details of Offence:

See Whelan above.

Details of Mitigation:

Crown: Full and frank account in interview, cooperative, named UK contact, guilty plea, low risk of reconviction, no previous convictions.  

Defendant: Out of character, no knowledge of predicate offence, cooperation with investigation. 

Previous Convictions:

None.

Conclusions:

See Whelan above.

Count 1:

2 years imprisonment.

Total: 2 years imprisonment. 

Confiscation Order sought in the sum of £240.

Sentence and Observations of Court:

Count 1:

21 months' imprisonment.

Total: 21 months' imprisonment.

Confiscation Order made in the sum of £240.

M. R. Maletroit, Esq., Crown Advocate.

Advocate L. J. Glynn for Whelan.

Advocate C. F. D. Sorenson for Grace.

Advocate S. E. A. Dale for Robinson.

JUDGMENT

THE commissioner:

1.        Just as the courier who imports controlled drugs forms a vital link in the supply chain so does the person who transmits the proceeds of crime back to the United Kingdom or elsewhere whether that crime is drug trafficking or some other form of crime. 

2.        As the Superior Number said in AG-v-Goodwin [2016] JRC 165: "the evil of money laundering generally receives an increasing focus in the international community and that it is right that this Court should reflect that increasing focus in the sentences it passes" in money laundering offences.   It was emphasised in AG-v-Turney [2016] JRC 175 that there has been a change in sentencing policy compared with the older cases to take account of these concerns. 

3.        Now Count 1 in this case relates to the sum of £80,000.  The Crown has accepted the basis of plea as put forward by the defendants and the Court proceeds on that basis.  So you Mr Grace and Mr Robinson were each to be paid £500 plus expenses of £500 to bring over the hire car, leave it unlocked in the People's Park car park, retrieve it the next day and take it back to the UK.  You both believed the sum of £80,000 was to be stashed in the car and that this was the proceeds of crime, although you did not know exactly what crime. 

4.        You, Whelan have pleaded guilty on the basis that you had allowed a third party to use the garage where the £80,000 was stashed and you agreed to collect the hire car from the People's Park.  You did not know the amount of money or its source but you suspected that the arrangement concerned money which was the proceeds of crime. 

5.        Count 2 concerns you alone Mr Whelan and it relates to the sum of £40,000-odd which was found in your loft.  At the Newton Hearing the Jurats disbelieved your version that the sum of represented your savings from private work which you had not declared to the tax office and concluded that it was the proceeds of some other crime. 

6.        Now dealing with you first Mr Whelan, you have a poor record including having supplied Class A drugs in 2005 for which you were sentenced to 6½ years' imprisonment but in mitigation you pleaded guilty to Count 1 albeit very late, namely on the morning of the trial and you pleaded guilty to Count 2, although again much of the benefit of your plea was lost because of the Newton hearing.  Nevertheless, you still receive a discount for your guilty pleas.

7.        We note that you have no convictions since you came out of prison, you have a good work record, excellent references from your employer and many character references and your own letter to us which we have read carefully. 

8.        It is sad that after the efforts you have made since coming out of prison you have now reverted and ended up before us once again.  In your case there can be no alternative to an immediate custodial sentence as your advocate has very realistically accepted. 

9.        We think it preferable to pass consecutive sentences for the two counts as they are separate.  In relation to Count 1 we consider that the degree of your involvement on the basis of your plea is in fact slightly less than the degree of involvement of your co-defendants.  They were bringing a car over and were going to act as couriers and take the money back to England.  On the basis of your plea your involvement was limited to the garage being used but for a purpose which you did not know exactly, and for your going to pick up the car on the day in question.  However your slightly lesser involvement has to be set against the fact that you have previous convictions whereas they have none and also the lateness of your plea of guilty, whereas they have pleaded guilty at an early stage. 

10.      Taking all these matters into account and taking account of the matters urged by your advocate we think the correct sentence on Count 1 is 27 months' imprisonment.  Turning to Count 2 we take account of the totality principle because we must have regard to what your overall sentence is.  We think that the correct overall sentence for you is 3½ years' imprisonment.  So on Count 1 the sentence is 27 months' imprisonment, on Count 2 it is 15 months' imprisonment making a total of 42 months or 3½ years' imprisonment. 

11.      Now Mr Grace and Mr Robinson, it is really very sad to see you both before this Court.  You are both middle-aged men with no previous convictions, excellent work records and a settled home life with your respective families.  It is very hard to understand why you both agreed to get involved in this venture for the comparatively small fee of £500.  You both put it down to moments of stupidity and bad judgment.  In each case the effect on your family has been considerable and you must bear the responsibility for this.  You have each served the equivalent of just under 11 months' imprisonment whilst on remand and we have taken note of that. 

12.      Now each of your counsel has urged a non-custodial sentence in your case.  The difficulty with that is that, as we have just explained, the Court takes a serious view of money laundering offences.  We were referred to two cases where a non-custodial sentence has been passed.  The first is the case of Turney; that involved the lesser sum of £42,000 but the defendant did have some previous convictions although it is not very clear exactly what.  Nevertheless the Court held in that case that in principle a sentence in excess of 2 years' imprisonment was the appropriate sentence, although on the special facts it passed a suspended sentence of 2 years because of the very special mitigation listed in paragraph 7 of the judgment. 

13.      The other case is AG-v-Cleaver [2016] JRC 080.  That involved the much lesser sum of £10,000 albeit over three separate journeys whereas you were only involved in one journey.  The defendant did have a previous conviction for growing cannabis.  A sentence of community service was passed but the Court made it clear that this was not to be regarded as a precedent.  It said at paragraph 3:

"We accept that there are numbers of mitigation points which you have as an individual and we are minded, in the light of everything that is contained in the probation report and on the basis of the papers we have seen generally, that it is an appropriate case in which we can show you some mercy.  But in doing so we want to make it absolutely plain that the sentence is related to the particular personal circumstances of your case and it does not form a precedent in any way at all."

14.      As you can see from the time we have taken to consider this, we have not found it easy and we have given very careful consideration to the points that both of your advocates have urged very clearly upon us.  But having done so we do not feel able to impose a non-custodial sentence.  Despite your good characters you agreed to smuggle the very substantial sum of £80,000 - and you admit to knowing the amount - out of Jersey believing it to be the proceeds of crime albeit you did not know exactly what sort of crime and thought it might be tax evasion.  Whilst the Court can take note of the predicate offence, the fact is that the gravamen of the offence of money laundering is to deal with the proceeds of crime no matter what crime.

15.      Furthermore, given the amount involved in this case as compared with all the other cases except Goodwin we cannot conclude that the 2 year sentence moved for is too high.  What we do think however is that Mr Robinson you should be given in mitigation an additional discount for the cooperation which you gave immediately you were interviewed by the police. 

16.      The sentence of the Court therefore is as follows.  Mr Robinson you are sentenced to 21 months' imprisonment and Mr Grace you are sentenced to 2 years' imprisonment. 

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

Authorities

AG-v-Goodwin [2016] JRC 165.

AG-v-Turney [2016] JRC 175.

AG-v-Cleaver [2016] JRC 080.

AG-v-Brennan [2016] JRC 234.

AG-v-Fish and Hinds [2016] JRC 181A.

AG-v-Whelan and Byrne [2005] JRC 045.