Jersey Unreported Judgments

Inferior Number Sentencing - drugs - Class B - possession - intent to supply - possession and converting of criminal proceeds - income tax.

[2019]JRC024

Royal Court

(Samedi)

13 February 2019

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Pitman.

The Attorney General

-v-

Joanne Marie Jones

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

First Indictment

1 count of:

Possession of a controlled drug, with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978. (Count 1)

Second Indictment

2 counts of:

Possession or control of criminal property, contrary to Article 30(1)(c) of the Proceeds of Crime (Jersey) Law 1999. (Counts 1 and 2)

Third Indictment

1 count of:	Converting or transferring criminal property, contrary to Article 31(1)(c) of the Proceeds of Crime (Jersey) Law 1999. (Count 4)
6 counts of:	Fraudulently delivering an incorrect statement to the Comptroller of Income Tax, contrary to Article 137(1)(a) of the Income Tax (Jersey) Law 1961 (Counts 6,7,8,9,10 and 11)

Age:  49.

Plea: Guilty.

Details of Offence:

As part of a wider operation Joanne Jones' car-wash business premises were searched and slightly under 500g of cannabis resin was discovered.  Jones pled guilty to possession with intent to supply on the basis that she had been minding the cannabis temporarily for another whom she was not prepared to name, without financial reward.

Investigations of Jones' bank accounts revealed substantial funds which she insisted came from several legitimate sources.  She was tried on counts of laundering the proceeds of other drugs trafficking and acquitted.  She pled guilty to failing to declare the legitimate income to the Comptroller over a six year period, and to three counts of possessing, controlling, converting or transferring criminal property relating to unpaid tax. 

Details of Mitigation:

Guilty pleas, treated as of good character, time served on remand, delay resulting from trial and acquittal, co-operation, exceptional employment record, charity work, personal references, family difficulties. 

Previous Convictions:

No previous relevant convictions. 

Conclusions:

First Indictment

Count 1:

5 months' imprisonment.

Sub Total: 5 months' imprisonment.

Second Indictment

Count 1:	15 months' imprisonment, consecutive to Count 1 of the First Indictment.
Count 2:	15 months' imprisonment, consecutive to Count 1 of the First Indictment and concurrent to Count 1 of the Second Indictment.

Sub Total: 15 months' imprisonment.

Third Indictment

Count 4:	15 months' imprisonment, consecutive to Count 1 of the First Indictment and concurrent to all other offences.
Count 6:	15 months' imprisonment, and £90,000 fine, consecutive to Count 1 of the First Indictment and concurrent to all other offences.
Count 7:	15 months' imprisonment, and £90,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 8:	15 months' imprisonment and £90,000 fine, consecutive to Count 1 of the First Indictment and concurrent to all other offences.
Count 9:	15 months' imprisonment and £90,000 fine, consecutive to Count 1 of the First Indictment and concurrent to all other offences.
Count 10:	15 months' imprisonment, and £90,000 fine, consecutive to Count 1 of the First Indictment and concurrent to all other offences.
Count 11:	15 months' imprisonment and £90,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.

Sub Total:      15 months' imprisonment and £90,000 fine.

Grand Total:   20 months' imprisonment, reduced to time served by Rule 1(1) of the Criminal Proceedings (Computation of Sentences) Rules 1968; plus a total fine of £90,000 with 9 months' imprisonment in default. 

Compensation Order sought of £65,825.99 in favour of the Comptroller of Taxes to be paid within 12 months or 6 months' imprisonment in default. 

Sentence and Observations of Court:

First Indictment

Count 1:

5 months' imprisonment.

Sub Total: 5 months' imprisonment.

Second Indictment

Count 1:	15 months' imprisonment, consecutive to Count 1 of the First Indictment.
Count 2:	15 months' imprisonment, consecutive to Count 1 of the First indictment,, concurrent to Count 1 of the Second Indictment.

Sub Total: 15 months' imprisonment.

Third Indictment

Count 4:	15 months' imprisonment, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 6:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 7:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 8:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 9:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 10:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.
Count 11:	15 months' imprisonment and £75,000 fine, consecutive to Count 1 of the First Indictment, concurrent to all other offences.

Sub Total 15 months' imprisonment and £75,000 fine.

Grand Total: 20 months' imprisonment reduced to time served by Rule 1(1) of the Criminal Proceedings (Computation of Sentences) Rules 1968 plus a fine of £75,000 with 3 months to pay or 9 months' imprisonment in default.

Fine of £75,000 with 3 months to pay or 9 months' imprisonment in default.  

No Compensation Order made; monies subject to a Saisie Judiciaire. 

Forfeiture and destruction of the drugs ordered.  

D. Hopwood, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant is to be sentenced firstly for one count of possession of slightly under 500 grams of cannabis resin with intent to supply; secondly, for three counts of money laundering and thirdly for six counts of fraudulently delivering incorrect statements to the Controller of Income Tax. 

2.        The cannabis resin had a wholesale value of £4,000 to £6,000 and £7,500 to £10,000 if sold as individual deals.  The Crown accept that the defendant was minding the cannabis for another person to whom it would have been returned. 

3.        The Income Tax offences took place over 6 years and the admitted under declaration of what the Crown accept were legitimate earnings was £263,558.55, on which there is unpaid income tax of £59,242.27 together with a 10% surcharge and payments due under the long term care scheme, which gives rise to a total sum due to the Comptroller of £65,825.99.  We have seen a notice from the Comptroller showing that that is the sum due. 

4.        The money laundering offences relate to the same undeclared but legitimate income.  The Crown had maintained that the money laundering related to the proceeds of the defendant's drug trafficking, but she was acquitted of that on the 25^th October, 2018, after a two week trial. 

5.        The quantity of drugs concerned is below the lowest band of the Campbell guidelines, and by reference to that case (Campbell and Ors v AG [1995] JLR 136) and the cases of the AG v Davies [2015] JRC 039 and AG v Cornick [2012] JRC 064, the Crown moved for a starting point of 9 months imprisonment and a sentence after mitigation of 5 months for that offence. 

6.        In AG v Goodwin [2016] JRC 165 the court had regard to the principles set out in the English Court of Appeal case of R v Monfries [2004] 2 Cr. App. R. (S) 3 for sentencing of money laundering offences including that:-

"There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence.  Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence when considering the appropriate sentence for the laundering offence."

7.        In this case the predicate offences have been identified namely, the delivering of the fraudulent returns, offences which carry a penalty of 15 years' imprisonment and a fine, and in view of the defendant's plea of guilty to the three money laundering offences on the accepted basis that it relates to legitimate income, the Crown accept it would be unusual for it to bring money laundering offences in respect of such conduct.  It therefore has moved for concurrent sentences of equal length to the predicate offences. 

8.        AG v Goodwin is the most recent case of fraudulent delivering of income tax returns but those offences were committed prior to the 2009 amendment to the Income Tax Law which substantially increased the penalties for such conduct.  However, the gravemen of such offences was set out clearly by the Bailiff in that case at paragraph 23:-

"The filing of accurate income tax returns is an essential obligation which the citizen owes to the State.  If it is not conducted accurately, then an incorrect amount of tax is charged, and that does damage to the Island community as a whole.  The fact that no additional tax would have been payable on this occasion means of course that the maximum fine which can be imposed is much reduced, because the actual damage caused to the Island is negligible.  Nonetheless the fraudulent return is a serious matter because the efficient administration of our tax system depends to a large extent upon the honesty of Islanders in making their tax returns.  A dishonest breach of the citizen's obligation to the State, if committed by many, would undoubtedly lead to a requirement for more resources to be allocated to the problem of gathering in the taxes which are due to be paid."

9.        Seeking some guidance from cases of Social Security fraud the Crown seek a combined sentence of 15 months imprisonment and a fine of £90,000 consecutive to the drugs offence giving a total sentence of 20 months  Taking into account the time already served by the defendant on remand her time will have been served. 

10.     The defendant has substantial mitigation available to her ably put forward by Advocate Haines, but in summary her early guilty pleas, her good character, her charitable work which has been independently confirmed, her strong work ethic and the many references that have been produced both by those her know her and by her employers.  She is also assessed by the Probation Department at a low risk of reconviction. 

11.     The court agrees with the Crown that these offences of drug trafficking and the tax evasion should be marked by a sentence of imprisonment, not only to punish the defendant but also to send a message to others considering embarking upon similar fraudulent activity. 

12.     The Crown says it is not in the public interest for the defendant to be returned to prison after serving the equivalent of a 20 month sentence on remand and in the light of the current circumstances which includes the length of time this matter has taken to come to this point. 

13.     However, we do not think that 20 months' imprisonment for the income tax frauds reflects the totality of the criminality in respect those frauds and we are therefore, as invited, going to impose a fine of £75,000 in total for the income tax offences which we are satisfied the defendant is able to pay, and this in addition to the sentence of 15 months concurrent for those offences. 

14.     Therefore turning to the actual sentences:

(i)       On the First Indictment, Count 1, you are sentenced to 5 months' imprisonment;

(ii)       On the Second Indictment, Count 1 to 15 months' imprisonment; consecutive to Count 1 of Indictment One and concurrent to all other offences; Count 2 to 15 months' imprisonment; consecutive to Count 1 of Indictment One and concurrent to all other offences;

(iii)      Third indictment, Count 4, 15 months' imprisonment, consecutive to Count 1 of Indictment One and concurrent to all other offences; Counts 6 to 11 of the Third Indictment to 15 months' custody and to a fine of £75,000 and 9 months in default of payment by way of imprisonment and all of those are to be consecutive to Count 1 of Indictment One and concurrent to all other offences;

(iv)     That makes a total of 20 months imprisonment and a total fine of £75,000.

(v)      In terms of time to pay the defendant will have to pay that fine within 3 months.  

15.      We note that the amounts due to the Comptroller of Income Tax will be paid out of the sums subject to the Saisie and that the Crown will be endeavouring to lift that Saisie as soon as possible. 

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

17.     We make no order for compensation on the basis that the Income Tax assessed will be paid directly to the Comptroller. 

Authorities

Article 137, Income Tax Law (Jersey) Law 1961

Campbell and Ors v AG [1995] JLR 136. 

AG v Davies [2015] JRC 039

AG v Cornick [2012] JRC 064

AG v Goodwin [2016] JRC 165

R v Monfries [2004] 2 Cr. App. R. (S) 3

Article 8(2), Misuse of Drugs (Jersey) Law 1978

Criminal Justice (Compensation Orders) (Jersey) Law 1994. 

AG v Bates [2004] JRC 135. 

AG v Fortune [2010] JRC 166. 

AG v McLoughlin [2012] JRC 179. 

AG v McDonald and Hughes [2014] JRC 100. 

AG v Cocks [2014] 142A. 

AG v Davies [2015] JRC 039. 

AG v Whelan and Others [2017] JRC 040B. 

AG v Palmer [2017] JRC 079. 

AG v Rae and Spinola [2017] JRC 080.

AG v Bradshaw [2017] JRC 119. 

AG v Browne [2018] JRC 070.