Jersey Unreported Judgments

Superior Number Sentencing - converting the proceeds of criminal conduct - drugs - importation - possession - supply - Class B

[2018]JRC062A

Royal Court

(Samedi)

22 March 2018

Before     :

Sir Michael Birt, Commissioner, and Jurats Nicolle, Blampied, Grime, Ronge, Pitman and Dulake.

The Attorney General

-v-

Adam Brian Hole

Kieran Davey Rice

Urbino Vieira Rodrigues

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

Adam Brian Hole

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 5).
2 counts 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 (Counts 9 and 10).

Age:  37. 

Plea: Guilty. 

Details of Offence:

In July 2017 Hole booked a ticket with Condor Ferries to travel on 27^th July, 2017, from Portsmouth to Jersey with a VW Passat registration KN60ACU.  He made a reservation to stay at Bohemia. 

On 31^st July, 2017, Rice was under surveillance by police officers.  That evening police observed a male, later identified as Rodrigues, driving in the area of La Retraite.  Rice was observed getting into the car and then exiting, carrying a dark-coloured Adidas holdall. 

On the morning of 1^st August, 2017, police were on duty in the area of Bohemia car park.  Officers saw Hole, outside the hotel, using his phone.  Later analysis of the phone showed that he had been in communication with a mobile attributed to Rice.  At this time Hole's silver VW Passat was parked in the rear car park of the hotel. 

A car driven by a friend of Rice then entered the rear car park at Bohemia.  Rice was in the front passenger seat.  Rice got out, met Hole and handed him a blue Adidas bag.  The two were seen shaking hands.  Rice was then seen carrying a black and white plastic bag that "appeared very heavy". 

An officer approached the driver of the car and identified himself.  Rice appeared as though he was "about to faint".  He was arrested on suspicion of drug trafficking offences.  His phone was seized, together with the black and white plastic bag. 

A search of the plastic bag revealed that it contained:

·         110 bars of cannabis resin weighing a total of 10.77 kilograms with an estimated local street value of between £161,595.00 and £215,460.00 (wholesale value between £44,000.00 and £66,000.00) (Counts 9 and 14A)

·         Approximately 3,454 buprenorphine (Buprenorphine or "subutex") tablets, weighing a total of 1.38 kilograms (potential street value £276,400.00) (Counts 10 and 15A)

At around the same time Hole was arrested in the carpark.  When asked "Do you have anything on you?"  Hole responded, indicating to the Passat, "It's in the car I just collected a bag.  I don't know what's in it".

The blue Adidas holdall was seized from the boot of the Silver Passat (the car was later found to have a secret compartment in the boot).  The Adidas holdall was found to contain:

·         14 bundles of cash totalling £115,000.00 (Count 5)

·         7 packages containing approximately 13,990 pink N-ethylpentylone tablets weighing a total of 5.16 kilograms (potential street value, if sold as "ecstasy", between £209,865.00 and £349,775.00) (Count 16)

The police subsequently searched Rice's home address, seizing:

·         Two bags containing 96.06 grams and 99.03 grams respectively of light brown crystalline MDMA with a purity of 74% (potential local street value if sold as 1 gram 'deals' in the region of £20,000.00) (Count 17).

·         A carrier bag containing 20 bars of cannabis resin weighing approximately 1.94 kilograms (under Rice's bed); local street value between £29,100.00 and £38,800.00, with a wholesale value of between £8,000.00 and £12,000.00 (Count 19).

·         A glass bowl containing 24.29 grams of cannabis resin, a large yellow kinder egg containing 23.75 grams of cannabis resin, a small glass jar containing 3.53 grams of cannabis resin, and a piece of cling film containing 2.16 grams of cannabis resin (together totalling approximately 54 grams); approximate street value between £870.00 and £1,120.00 (Count 20).

·         A further 16 pink N-ethylpentylone tablets, including fragments and residue of pink powder; if sold as 'ecstasy', a street value of between £240.00 and £400.00 (Count 22)

·         A money (note) counter, £402.00 cash and bank cards.

·         lined paper with contact details (including Hole's mobile number).

·         Rolls of masking tape, a vacuum sealer and vacuum food bags and yellow rubber gloves and cling film.

Rodrigues was arrested at home later that day.  He later admitted having a party at his home address on 28^th July, 2017, at which Rice was present, during which Rice handed out pink tablets/drugs from a dark coloured Adidas holdall.  Rodrigues stated that Rice had left the Adidas holdall at his house that night, and that he (Rodrigues) had dropped this off to Rice on 31^st July, 2017; knowing that it contained some pink tablets/drugs but having no knowledge of the quantity in the bag (Count 8).

Details of Mitigation:

Guilty plea, remorse, two young children.

Previous Convictions:

Several previous convictions including offences against the person, theft and public order matters, and one conviction for possession of a Class A controlled drug in March 2016.

Conclusions:

Count 5:	Starting point 6 years' imprisonment.  3½ years' imprisonment.
Count 9:	Starting point 6 years' imprisonment.  3½ years' imprisonment, concurrent.
Count 10:	Starting point 8 years' imprisonment.  5 years' imprisonment, concurrent.

Total: 5 years imprisonment. 

Confiscation Order sought in the sum of £115,000.

Seizure and forfeiture of the VW Passat sought.

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

Count 5:	Starting point 6 years' imprisonment.  3½ years' imprisonment.
Count 9:	Starting point 6 years' imprisonment.  3½ years' imprisonment, concurrent.
Count 10:	Starting point 9 years' imprisonment.  5½ years' imprisonment, concurrent.

Total: 5½ years' imprisonment.

Confiscation Order made in the sum of £115,000.

Seizure and forfeiture of the VW Passat ordered.

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

Kieran Davey Rice

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 5).
4 counts 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 (Counts 14A, 15A, 17, and 19).
1 count of:	Supply of a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Count 16).
2 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 20 and 22).

Age:  31. 

Plea: Guilty. 

Details of Offence:

See above.

Details of Mitigation:

Guilty plea, remorse, difficult family circumstances, health problems as a result of drug use.

Previous Convictions:

Several previous convictions for drugs offences including possession of MDMA and cannabis, permitting his premises to be used for smoking cannabis and the supply of cannabis.

Conclusions:

Count 5:	Starting point 6 years' imprisonment.  3½ years' imprisonment.
Count 14A:	Starting point 6 years' imprisonment.  3½ years' imprisonment, concurrent.
Count 15A:	Starting point 7 years' imprisonment.  4 years' imprisonment, concurrent.
Count 16:	Starting point 8 years' imprisonment.  5 years' imprisonment, concurrent.
Count 17:	Starting point 15 years' imprisonment.  9½ years' imprisonment, concurrent.
Count 19:	Starting point 2½ years' imprisonment.  18 months' imprisonment, concurrent.
Count 20:	Sentence:  3 months' imprisonment, concurrent.
Count 22	Sentence:  3 months' imprisonment, concurrent.

Total: 9½ years' imprisonment.

Confiscation Order sought in the sum of £402.00.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Count 5:	Starting point of 6½ years' imprisonment.  4 years' imprisonment.
Count 14A:	Starting point of 6 years' imprisonment.  3½ years' imprisonment, concurrent.
Count 15A:	Starting point of 7 years' imprisonment.  4 years' imprisonment, concurrent.
Count 16:	Starting point of 8 years' imprisonment.  5 years' imprisonment, concurrent.
Count 17:	Starting point of 15 years' imprisonment.  9½ years' imprisonment, concurrent.
Count 19:	Starting point of 2½ years' imprisonment.  18 months' imprisonment, concurrent.
Count 20:	3 months' imprisonment, concurrent.
Count 22	3 months' imprisonment, concurrent.

Total: 9½ years' imprisonment.

The Court adjourned the matter of confiscation to a date to be fixed.

Forfeiture and destruction of the drugs ordered.

Urbino Vieira Rodrigues

1 count of:

Being knowingly concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 8).

Age:  30. 

Plea: Guilty. 

Details of Offence:

See above.

Details of Mitigation:

Guilty plea, remorse, support of family, of good character.

Previous Convictions:

No relevant previous convictions.

Conclusions:

Count 8:

18 months' imprisonment.

Total:  18 months' imprisonment.

Sentence and Observations of Court:

Count 8:

The Court sentenced Rodrigues to time served, namely 11 months and 14 days' imprisonment and ordered his immediate release from custody.

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

Advocate F. L. Pinel for Hole.

Advocate J. W. R. Bell for Rice.

Advocate J. C. Gollop for Rodrigues.

JUDGMENT

THE commissioner:

1.        Each of the defendants in this case has pleaded guilty on a certain factual basis which the Crown has accepted.  We therefore sentence on that factual basis which is as follows. 

2.        Hole imported 10.7 kilos of cannabis resin and 3,454 tablets (that is 1388 grams) of buprenorphine known as subutex, concealed in a car.  The cannabis had a street value of between £160,000 and £205,000 in round terms and the subutex had a street value of £276,000. 

3.        According to Hole he had been promised a payment of £5,000 plus the gift of the car as payment for doing this drug run.  The drugs were concealed by others but he knew that there were some bars of cannabis and what he believed could be sleeping pills or pain killers. 

4.        He was also told that the person he would be meeting would put some money in the car for him to bring back to the UK.  The person he met in Jersey was Rice.  Rice took possession of the bag containing the cannabis and the subutex, and in return gave Hole a bag containing £150,000 in cash and £13,990 pink N-ethylpentylone tablets weighing approximately 5.16 kilos and having a street value if sold as "ecstasy", as they commonly are of between £209,000 and £350,000.  This is a Class B drug and is what is known as a new psychoactive substance or NPS.  Hole was not aware that there would be any drugs in the bag given to him by Rice which is why he does not face a charge in relation to the NPS.  

5.        Rice's home was subsequently searched and the police found 195 grams of MDMA or ecstasy in crystalline form i.e. not tablets, with a street value of some £20,000, and 1.9 kilos of cannabis resin.  He has pleaded guilty to possession with intent to supply both those quantities of drugs on the basis that he was minding them for others.  There were also personal amounts of cannabis resin and N-ethylpentylone found.  

6.        Rodrigues has pleaded guilty to one count of being concerned in the supply of N-ethylpentylone.  This is on the basis that Rice had inadvertently left a holdall at Rodrigues' house after a party.  Rodrigues returned the holdall to Rice knowing that it contained drugs although not knowing the amount.  

7.        We must consider first the starting points for these various offences.  We will start with the offences which concern Hole.  In connection with the importation of the cannabis, the case of Campbell & Ors v AG [1995] JLR 136 suggests a starting point of 6-10 years for 10 to 30 kilos.  We agree with the Crown that a starting point of 6 years is right for the sum of 10. 7 kilos in this case. 

8.        In relation to the subutex we have been referred to the cases of AG v Matutite [2013] JRC 047, AG v Tranchant [2014] JRC 052 and AG v Eagle [2014] JRC 076.  We note that at the time of Matutite subutex was a Class C drug whereas as it is now a class B drug.  The amounts in this case are very much larger than in those other cases and the street value of course was greater than the street value of the cannabis being imported at the same time.  We agree with the Crown that a starting point of 7 years is appropriate for that offence.

9.        As to the money laundering we have also been referred to a number of cases, having particular regard to the case of AG v Goodwin [2016] JRC 165.  We agree with the Crown that a starting point of 6 years for Hole is correct.  T`his was a substantial amount of money and he was trusted by the persons who had asked him to undertake the run to take possession of such a large amount of money. 

10.      In so far as Rice is concerned and the starting points for his offences, we think the same starting point should apply for the cannabis and the subutex.  In relation to the money laundering we think his involvement was slightly greater.  He had been looking after the money for a while and indeed had been trusted to bag it up in various packages.  We think a starting point of 6½ years is correct for his role in the money laundering offence.  In relation to the N-ethylpentylone, this was a very substantial amount with a substantial value.  We agree with the Crown that a starting point of 8 years' imprisonment for that is correct.

11.      As to the MDMA, this is a Class A drug unlike the others; therefore the Rimmer v AG [2001] JRL 373, ("Rimmer Guidelines") apply.  For between 100 and 250 grams, a 10 to 13 year period is appropriate.  The amount in this case was just under 200 grams and we agree with the Crown that a starting point of 12 years is appropriate.  Advocate Bell argued it should be 11 but we think, having regard to the nature and scale of Rice's involvement in drug matters, that 12 years is the right starting point.  

12.      We consider next the question of Valler v AG [2002] JLR 383 re: the Valler uplift, as it is called.  The Crown has added one year for Hole in respect of the more serious offence, the subutex offence, to reflect the fact that he was also importing cannabis resin.  We agree that one year is correct on that Count. 

13.      However we think that there must be an additional Valler uplift to reflect the money laundering offences this was a separate offence.  Hole was going to do two things.  He was going to do a drug run one way by importing drugs and then he was going to commit another offence going back by taking the money with him.  We think it would be wrong for there to be no additional penalty for the fact that he was going to carry this substantial amount of money back to the UK.  Dealing with the proceeds of drug trafficking or the purchase price of drug trafficking is an essential part of the drug trafficking network and those who get involved in money laundering offences must expect to be punished for it.  We think that an additional year is appropriate for that.  That means that we will be lifting the starting point on Count 10 to 9 years instead of the 8 years suggested by the Crown.

14.      As for Rice the Crown has taken a Valler uplift of 3 years on Count 17, the MDMA offence, to reflect the other drug offences to which he has pleaded guilty.  We accept Advocate Bell's point that 2 years is a more appropriate uplift for that.  However, for the same reasons we have just described in relation to Hole, we think there must also be an uplift for the money laundering offence and we uplift by one year for that offence.  That means there will be a total uplift on Count 17 of 3 years, as moved for by the Crown but for rather different reasons. 

15.      Having ascertained the starting points we consider mitigation.  In relation to Hole he has pleaded guilty. Although he has previous offences, there is only one fairly minor drug offence.  We have read the background as set out in the Probation Report and it is clear that he has suffered recently having lost his job through redundancy and having encountered as a result difficulties in having contact with his daughter.  He has a good work record but found himself in a financial mess.  We have read his letter and the various references and it is clear that he has much to offer in many respects.  Nevertheless he became involved in serious offending and we see no alternative to a substantial prison sentence. 

16.      Mr Hole, the sentence of the Court in your case is as follows: on Count 5; 3½ years' imprisonment; on Count 9; 3½ years' imprisonment as suggested by the Crown.  In relation to Count 10, where we have uplifted the starting point to 9 years, we think the final sentence is 5½ years' imprisonment.  All of those concurrent so the total sentence in your case is 5½ years' imprisonment. 

17.      As to Rice, he too has pleaded guilty, he too has a good work record and, although he has previous convictions, they are of a different nature for the most part.  It is clear in Rice's case that the problem has been a drug dependency and this has resulted in his incurring debts to drug dealers.  He said that he has been subject to threats.  The Court has repeatedly said that threats from drug dealers do not amount to mitigation because a person who buys drugs puts himself in a position whereby he is subject to threats, so we cannot allow any deduction for that.  We have read his letter of remorse and the references, and again it is clear that there is a very positive side to Rice.  But he has acted as minder for a variety of different drugs and it is clear that he has become ensconced in the drug scene; so again there is no alternative to a substantial prison sentence. 

18.      We have taken into account the totality principle in your case to make sure that the overall amount reflects our view of the offending.  But we think essentially the Crown's conclusions are correct.  So the sentences are as follows: Count 5, where we have increased the starting point slightly to reflect your greater involvement, the sentence is 4 years' imprisonment; Count 14A; 3½ years' imprisonment; Count 15A; 4 years' imprisonment; Count 16; 5 years' imprisonment; Count 17; 9½ years' imprisonment; Count 19; 18 months' imprisonment; Count 20; 3 months' imprisonment; Count 22; 3 months' imprisonment.  All of those concurrent, making a total sentence of 9½ years imprisonment.  

19.      Finally, Rodridgues, your position is very different.  The offence to which you have pleaded guilty is unrelated to the others.  You have pleaded guilty, you have no previous convictions, you are assessed a being at low risk of re-offending and the offending in your case was very much at the lower end of the scale of the particular offence to which you have pleaded guilty.  We think the correct sentence in your case would be one of 12 months' imprisonment, but in the circumstances we are going to impose a sentence which permits your immediate release today. 

20.       We are not going to recommend deportation. 

21.      We order the forfeiture and destruction of the drugs.

22.      We order the forfeiture of the car.

Authorities

Campbell & Ors v AG [1995] JLR 136. 

AG v Matutite [2013] JRC 047. 

AG v Tranchant [2014] JRC 052. 

AG v Eagle [2014] JRC 076. 

AG v Goodwin [2016] JRC 165. 

Rimmer v AG [2001] JRL.373  

Valler v AG [2002] JLR 383. 

AG v Dryden [2014]. JRC 172. 

AG v Diogo [2014] JRC 153. 

AG v L'Enfant [2013] JRC 169. 

AG v De Freitas, Sutton, Saville, Cousins [2014] JRC 158. 

AG v Roslan, Whitcombe & Lagadu [2015] JRC 030A. 

AG v Dixey & Pereira [2017] JRC 081. 

AG v Rae & Spinola [2017] JRC 080. 

AG v Whelan Grace & Robinson [2017] JRC 040B. 

AG v Antunes & Ors [2013] JLR 144. 

McDonough v AG [1994] JLR Notes 7a, McDonough v AG 1994/193, 28 September 1994