Jersey Unreported Judgments

Inferior Number Sentencing - drugs - possession - Class A

[2018]JRC047

Royal Court

(Samedi)

5 March 2018

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Grime and Christensen.

The Attorney General

-v-

John Rankin Coll

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).

Age:  53. 

Plea: Guilty. 

Details of Offence:

On 28^th October, 2017, the defendant was stopped by Customs and Immigration as he arrived at Jersey Airport on a flight from Glasgow. 

The defendant stated that he was in possession of a small quantity of methadone.  The methadone had been prescribed in the defendant's name and it was to last the duration of his stay.  The defendant stated that he had nothing further to declare. 

The defendant was arrested and cautioned on suspicion of importing controlled drugs internally.  A search was conducted of his person however nothing of a prohibited or restricted nature was found. 

The defendant was transferred to the Jersey General Hospital where a scan of his abdomen took place.  A duty Radiologist considered the x-ray results to be suspicious and he was transported to Police Headquarters. 

On 29^th October, 2017, the defendant excreted a single green balloon wrapped package. 

On 30^th October, 2017, the contents of the balloon wrapped package was analysed.  A total of 4.36 grams of powder was present.  A further analysis showed that the consisted of less than 1 per cent by weight of heroin containing diamorphine.  The street value of the drugs was £800.00 to £4,350.00. 

The defendant admitted to importing the drugs to pay off a family debt. 

Details of Mitigation:

Guilty plea; positive references; positive approach to alcoholism whilst in custody; low purity of drugs. 

Previous Convictions:

9 convictions compromising 21 offences, the most recent 3 offences were drug related. 

Conclusions:

Count 1:

2 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Conclusions granted.

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant, who is 53, stands to be sentenced for one count of importing heroine which had been secreted internally.  The Crown accepts that he was acting as a courier and undertook the importation to settle a family member's debt. 

2.        A total of 4.36 grams were found which would have a value of between £800 and £4,350 based on a street value of purity of under 20%, but that valuation was prepared before a recent valuation which showed that the powder contained less than 1% of diamorphine. 

3.        Following the guidelines in the case of Rimmer, Lusk and Bade v AG [2001] JLR 373 a starting point of between 7 and 9 years would apply.  The Crown contended that 7 years would be appropriate, and ordinarily the Crown would have moved for a sentence after mitigation of some 4 years.  We agree that 7 years is the appropriate starting point under those guidelines. 

4.        However, the Crown say there is authority for the proposition that at such low levels of purity the court will impose a custodial sentence of 50% less that it would otherwise have done. 

5.        In Hasson v AG [2004] JCA 124 which involved heroine with a purity of 7% the Court of Appeal stated that ordinarily:-

"...in Jersey the actual weight, and not the weight adjusted for the percentage of purity, should be taken as the relevant factor."

And citing the English case of R v Aranguren (1994) 99 Cr. App. R. 347 it said:-

 "30.  ...we do not consider that there should be a reduction in the starting point where the degree of purity is below the average.  Usually, neither the carrier (as we have already noted) nor indeed the dealer have any regard to the degree of purity, and it would not be appropriate to make a reduction in such circumstances."

6.        In the case before us the defendant had no knowledge of the degree of purity of the heroine he was carrying and indeed as the Crown has said he entered his plea to the count before either he or the Crown were aware of this low level of purity. 

7.        In AG v Deadman & Hall [2011] JRC 154 the court sentenced two accused for bringing into the Island heroine that was less and perhaps much less than 1% by weight.  Such was the low purity value of the drugs in that case, ascertained prior to the Indictment, that the matter was charged as an attempt with the court stating that "one can barely describe the powder as containing heroin".

8.        Whilst neither accused had any knowledge of this fact the court in that case declined to apply the Rimmer guidelines "not because all attempts fall into this category where the Rimmer guidelines will not apply, but it is because in this case there was an attempt to import heroin which was of such low purity that the amount is not measureable".  Whilst the Crown moved a starting point of 8 years, and sentences of 4½ and 4 years respectively, the Court instead ordered sentences of 2 years and 18 months (the latter in relation to Hall who was just 21 years old). 

9.        The case of AG v Dolan [2014] JRC 116 involves an accused who imported 105 grams of powder internally.  The powder contained less than 1% of diamorphine accordingly in that case the Court stated:-

"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."

10.      The court in Dolan went on to indicate that whereas a 10 year starting point and a sentence in the region of 6 to 7 years might have followed, had the drugs been ordinarily of strength, a sentence of 3½ years was actually appropriate.  

11.      The same point applies in the case before us in that the defendant's intention was to import heroin adding to the supply in the Island and he had no knowledge of the quality.  It is no thanks to him that the purity transpires to be so low. 

12.      The defendant has a bad record and is assessed at a high risk of reconviction.  In the circumstances the Crown seek a sentence of 2 years' imprisonment half this sentence it would otherwise have sought   In terms of mitigation we have listened to all of the mitigation put forward by Advocate Hall and contained within her skeleton argument.  The defendant has pleaded guilty.  We have read the references and his own letter and we commend the fact that he is making such a positive approach to his time in custody. 

13.      We accept the authorities referred to us by the Crown that purity levels as low as this can be a factor to be taken into account by way of mitigation after applying the Rimmer guidelines.  However, we do not accept the assertion that at these levels it is the policy of the court to apply a reduction of 50%.  In our view there is no such policy, the amount of the reduction would depend entirely upon the facts of the individual case and on the facts of this case we agree with the reduction sought by the Crown. 

14.      Advocate Hall has mentioned the possibility of community service but in our view there are no exceptional factors here that would justify such a course. 

15.      You are sentenced to 2 years' imprisonment. 

16.      We order the destruction of the controlled substances seized in this case. 

Authorities

Rimmer, Lusk and Bade v AG [2001] JLR 373

Hasson v AG [2004] JCA 124

R v Aranguren (1994) 99 Cr. App. R. 347

AG v Deadman & Hall [2011] JRC 154. 

AG v Dolan [2014] JRC 116