Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class B.

[2018]JRC005

Royal Court

(Samedi)

10 January 2018

The Attorney General

-v-

Krzysztof Kulik

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 29^th September, 2017, following a guilty plea to the following charge:

Age:  43.

Plea: Guilty.

Details of Offence:

The defendant was stopped by Customs Officers when he disembarked the car ferry from Poole in a black BMW.  He stated he was a chef by trade and had come to the Island to look for work.  When asked the usual questions he stated he had nothing to declare and nothing of a prohibited nature.  During a check of the BMW an officer lifted the floor lining of the boot, which revealed a quantity of cling-film wrapped brown taped packages.  Subsequent analysis showed the packages to contain 210 bars of cannabis resin with a total weight of 20,239·75 grams.  Considered as 21 kilos the UK purchase price was estimated at £25,200, local street value between £300,000 to £400,000.  Officers seized £205 from the defendant on arrest. 

Details of Mitigation:

When asked to explain his involvement the defendant appeared very open, stating he had money problems and had been offered £7,000 if he undertook the importation; had received £700 'up front'.  Initially resisted temptation of 'easy money' but felt somewhat intimidated by the proposer, a male of Russian origin, eventually succumbing to the temptation.  Credit for guilty plea, of previous good character, cooperative during interview.

Previous Convictions:

None

Conclusions:

Confiscation Order sought in the sum of £205.

Recommendation for deportation sought.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Benefit declared £700.  Confiscation Order made in the sum of £205.

Recommendation for deportation made.

Forfeiture and destruction of the drugs ordered.

C. R. Baglin, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is here to be sentenced on one count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to the Customs and Excise (Jersey) Law 1999.  He is 43 years old and of good character and has entered a guilty plea to importing eight wrapped packages of cannabis resin in the boot of a car driven by him. 

2.        The weight of cannabis was a minimum of 20 kilograms and somewhere up between that and 21 kilograms.  The wholesale price in the United Kingdom approximately £25,000, the street value in Jersey between £300,000 and £400,000.  He was apparently to be paid £7,000 for bringing the drugs into the Island although he has not received any of that money in advance and presumably will not get it now.  He was in financial difficulties at the time and that was the reason why he says that he succumbed to the temptation of bringing the drugs into Jersey. 

3.        The Court has made an assessment of his benefit of £700 which was monies paid to him in advance to assist in expenses and bringing the car to the Island and a Confiscation Order of £205 has been made.

4.        The Court's sentencing policy is well settled.  We apply the Court of Appeal case of Campbell and others-v-AG [1995] JLR 136 and first have to fix a starting point.  Having regard to the quantity of drugs and the defendant's involvement in drug trafficking the Crown takes a starting point of 8 years' imprisonment.  We think that is correct and we think that given the amount of drugs involved in particular and the fact that he was trusted with a significant amount of these drugs to bring to the Island, 8 years is an appropriate assessment of the starting point and we take it.

5.        The mitigation which has been fully set out to us by Advocate Bell and which we have considered rests on particularly the guilty plea, the good character, the ill health and then financial difficulties that preceded the offending, the fact that this was a one-off enterprise, the letter of remorse and the cooperation which the defendant has given to us and to the Customs respectively.  We have read all the references which have been supplied.  We also have noted that he has apparently made a positive contribution at Her Majesty's Prison on remand where it is said that he has been monitoring younger inmates in his trade, which is that of a Chef. 

6.        It is not clear that in the light of the finding of the drugs in the boot of the car the defendant would be entitled to the full one-third for the guilty plea which has been entered but we are certainly willing to give him a very generous discount for mitigation for that guilty plea and indeed are prepared to allow a significant amount for the other aspects of mitigation which I have mentioned. 

7.        In our view the appropriate sentence of imprisonment to impose is 4 years and 4 months' imprisonment.

8.        We have gone on to consider the question of deportation and I am going to return to the sentence of imprisonment in just a moment after I have made the remarks I am going to make about deportation.  We think that there is no doubt that applying the test in Camacho-v-AG [2007] JLR 462, the twin test which is set out in that case, that a deportation recommendation ought to be made in Jersey.  Here we have a defendant who is not a British national who has imported over 20 kilograms of cannabis and we think for offending of that kind he meets the first test if I can put it that way that his continued presence in the Island would be to the detriment of the Island.  As he has been living in the United Kingdom and not living in Jersey and has no contact with Jersey the second part of the test is relatively straightforward to apply.  There are no human rights considerations that we need to take into account in so far as Jersey is concerned and accordingly we make the recommendation for deportation. 

9.        I now return to the element of mitigation, which Advocate Bell has submitted, we ought to take into account.  The defendant has apparently been living in the United Kingdom for the last nine years and has been living with the same partner for the last eight years and is in practice acting as the father to her two children by another relationship.  The Immigration Act as it applies in the United Kingdom by virtue of Schedule 4 to the Act makes it plain that an Island's deportation order does not apply in the United Kingdom unless the Secretary of State resolves to exempt the exclusion on consideration of the case.  So it may be that the Secretary of State will not be minded to lift the exemption in any event.  If he does lift the exemption and considers then the question of deportation, it appears from the Immigration Rules part 13 which Advocate Bell has put before us that there is a significant difference where someone is sentenced to 4 years' imprisonment or more or to less than 4 years' imprisonment in so far as the balancing of their Article 8 convention rights has to be made by the Secretary of State.  In short summary where the sentence is 4 years or more then there will need to be some very compelling circumstances over and above the relationships with children or partners in the United Kingdom before the Secretary of State will exercise his discretion in favour of the person who would otherwise have been deported. 

10.      Advocate Bell submits that given that that appears to be the position of the United Kingdom we ought to impose a sentence of less than 4 years' imprisonment so that we do not, in effect, make a deportation order in respect of the United Kingdom as well as Jersey.  The first thing to say about that is that we do not settle the deportation rules which are made in the United Kingdom; that is a matter for them to settle because we are different legal jurisdictions in that way.  The second is that there is no reason not to make a deportation order in Jersey having regard to the case of Camacho which we are charged to apply and we add to that that we have not had the type of enquiry into personal circumstances which would have been made if the defendant had been resident in Jersey.  So if the circumstances had been exactly as they are in the United Kingdom one would have expected an investigation into the recommendation for deportation by the immigration authorities to have been much more extensive than it has in fact been.  That is why we cannot say whether we would have balanced the convention rights against deportation had we had to think about it or not.  We simply have not got that information. 

11.      What we think we can go on to say though is that in our view the question of sentence is one which necessarily needs to be considered on a non-discriminatory basis.  The British national who is in exactly the same position as the defendant but who happens to be British and not Polish should not be in a position of saying that he gets a higher sentence than what is the right sentence simply because he is British and not Polish.  So we do not think in principle that Advocate Bell's submissions are right when he says that we should reduce the sentence below the period of 4 years to enable the defendant to avoid a deportation order in the United Kingdom.  In fairness to Advocate Bell he made that submission on the basis that the offending here was on the cusp of a 4 year sentence and it is apparent from what we have said that we do not think it is on the cusp, we think the Crown was not badly out in its first assessment.

12.      However, given that the effect of the 4 year and 4 months' sentence may be to result in a deportation from the United Kingdom we think we should add this because there is this further factor which the Secretary of State will no doubt want to consider how it applies.  It entirely is a matter for her but it is this.  It is well known that the sentencing policy of this Court in drugs importation trafficking cases is more severe than the sentencing policy in the United Kingdom.  We assume that in drawing up the Immigration rules part 13 and in fixing on the period of 4 years, those making the appropriate recommendation to the Secretary of State for the adoption of those rules will have had regard to the sentencing policy of the United Kingdom courts and, given that our sentencing policy is different, it seems to us that that would be a material factor.  Whether it is "compelling circumstances" for the purposes of the rules is a matter for the Secretary of State but at first blush it seems to us to be a compelling factor to be taken into account in relation to any consideration of deportation from the United Kingdom, because the human rights point is clearly an arguable point however it comes to be resolved.  

13.      In the circumstances we are going to sentence the defendant as follows.  On the Indictment you are sentenced to 4 years and 4 months' imprisonment.

14.      We are going to make a recommendation to the Minister for deportation.

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

Authorities

Campbell and others-v-AG [1995] JLR 136.

Camacho-v-AG [2007] JLR 462.

AG-v-Dos Santos [2015] JRC 229.

AG-v-Henderson [2017] JRC 151B.

AG-v-Ferreira [2015] JRC 213.