Jersey Unreported Judgments

Superior Number Sentencing - drugs - supply - Class A - reasons for the decision

[2019]JRC099

Royal Court

(Samedi)

3 June 2019

The Attorney General

-v-

Alan James Smitton

John Anthony Banach

Simon Reeves

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

Advocate R. C. L. Morley-Kirk for Defendant Smitton.

Advocate M. J. Haines for Defendant Banach.

Advocate S. E. A. Dale for Defendant Reeves.

JUDGMENT

THE BAILIFF:

1.        The Court sat on 23^rd May to sentence these defendants on one count of conspiring between September and December 2017 to supply a controlled drug, namely heroin.  Sentences were handed down that day with reasons reserved.  This judgment contains these reasons.

2.        Smitton had also been indicted with conspiring with other defendants to supply cannabis.  That hearing had taken place on the morning of 23^rd May and although his co-defendants had been sentenced at that time, the sentence for Smitton was held back until the heroin conspiracy indictment could be dealt with, in order that proper consideration could be given to the totality principle.  At the end of the hearing in relation to the cannabis conspiracy, the Court indicated that, if it were not dealing with any other matter against Smitton, it would have sentenced him on that indictment to a total of 9 years' imprisonment. 

3.        The cannabis conspiracy involved just over 31kg of cannabis.  Smitton's part in the conspiracy, as the local resident, was to ensure that purchasers of the cannabis locally could be found and indeed one of the co-defendants, Howes, who was charged with possession with intent to supply rather than conspiracy, was one such purchaser.

4.        Smitton pleaded guilty to the cannabis conspiracy.  However, although Banach and Reeves pleaded guilty to the heroin conspiracy, Smitton pleaded not guilty.  He was convicted after a trial. At the sentencing hearing, Advocate Morley-Kirk on his behalf, and on instructions, told the Court that he now accepted his guilt in respect of both conspiracies.

5.        The prosecution stemmed from a surveillance operation conducted by the States of Jersey Police at the end of 2017, which culminated in the seizure of a substantial quantity of heroin from Reeves' address.  Banach, who was the subject of the surveillance, was observed attending at Reeves' address and searched when he left the premises about an hour later.  He appeared to be under the influence of drugs but no drugs were found on his person.  He was, however, in possession of a mobile phone, numerous syringes, two of which appeared to have been used and a document which had a list of figures written on it.  Officers thereupon executed a search warrant at Reeves' address.  Two brown lumps and some brown residue on a magazine on a coffee table in the living area were noticed and Reeves was arrested on suspicion of possession of heroin.  He was told that a police dog handler was attending with a dog to search for drugs and he was asked if there were any other drugs in the flat.  Reeves immediately answered that there was some more heroin in the drawer under the bed, but he was looking after it for someone else.  The officers located a protein tub which contained brown powder, subsequently analysed to consist of a total of 405.41g of heroin of 7% purity.  The wholesale value of the heroin would be between £58,000 and £72,500, and the ultimate street value of this quantity would be approximately £405,000, applying typical street deal quantities of 0.05g selling for £50.  The total heroin seized was 407.31g.

6.        In his interview with the police, Reeves explained that the protein tub had been brought to his flat and he had agreed to look after it as he was to be given small amounts of heroin for his own personal use.  He admitted that the heroin was wrapped in his flat and that he would help to wrap it up.  On the search of his address officers found not only the heroin but a wallet containing £2212 in cash, three mobile phones, numerous SIM cards and SIM card packs, some plastic wrapping with holes cut out of it and a set of digital scales.  No controlled drugs were found at Banach's address, but officers did find three further mobile phones and five SIM cards.  The text messages attributed to Banach revealed he had met with Smitton and attended at Reeves' flat regularly in the weeks leading up to his arrest.  There was also a substantial amount of telephone contact between Banach and Smitton.  DNA analysis provided very strong support for the view that Smitton, Banach and Reeves had all contributed DNA to the inner circumference of the protein tub in which the heroin was found.

7.        Banach and Reeves were indicted on 20^th April, 2018 and pleaded not guilty to the count of conspiracy.  Smitton was arrested on 24^th May and presented in the Royal Court on indictment on 15^th June.  He also pleaded not guilty.  A trial date was fixed for 8^th October, but this was subsequently adjourned until 17^th November.

8.        On 8^th October Banach and Reeves informed the Crown through their counsel that they wished to enter a guilty plea to conspiracy to supply heroin, which they did on 9^th October.

9.        In Rimmer v AG [2001] JLR 373, the Court of Appeal laid down sentencing guidelines to be applied in cases concerning the trafficking of Class A controlled drugs such as heroin in powder form.  The maximum sentence for trafficking in heroin is life imprisonment and the guidelines indicate a starting point of 14 years' imprisonment and upwards for quantities of 400g or more.  The Court fixed other starting points depending upon the weight of heroin in question and indicated at paragraph 34 that:-

"The position of a particular defendant on a particular count within one of the bands is to be deter­mined by reference to the weight of drugs and their role and involvement as principal factors, together with other lesser but relevant factors, as indicated above. The margins of these bands are also not to be treated as set in stone."

10.      In Rimmer the Court of Appeal also considered the question of purity.  In R v Aranguren (1994) 99 Cr App R 347 the English Court of Appeal decided that weight should be determined only after converting to the equivalent 100% purity of the drugs, a process which involves in each case a mathematical conversion from the particular degree of purity to 100%.  This approach was rejected by the Court of Appeal in Rimmer.  It said at paragraph 28:-

"However, there is no evidence of any material amount of "cutting" of drugs illegally brought into Jersey. Further, in the judgment of this court, whether a consignment of heroin or cocaine is at the average of between 40% and 50% purity, or at a much lower degree of purity, or at a higher degree, is immaterial to the carrier of the drugs, and largely immaterial to those who sell and buy the drugs in Jersey. To know the degree of purity requires the carrying out of a scientific analysis, involving both time and expense. Such an analysis seems at present unlikely to be carried out by those who deal in this illegal trade in Jersey. In the judgment of this court (a) the courts of Jersey should not at present adopt the Aranguren approach; and (b) the degree of purity of a consignment of illegal drugs should generally not be taken into account.

29. However, if the degree of purity is very high, at about 75% or greater, then it may be appropriate in particular cases to increase the starting point to take account of this because, first, a consignment of such high purity is much more likely to be "cut" and secondly, if it is not cut, it will do greater harm to those who consume the drugs. This approach was adopted by the Court of Appeal in Kenward v Attorney General [2000] JLR 251 and we consider that this is the right approach.

30. On the other hand, 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."

11.      This approach was considered in the appeal case of Hasson v AG [2004] JCA 124.  In that case, the Court was dealing with a defendant charged with possession of heroin with intent to supply, the heroin in question being extremely poor quality and having a purity at 7%.  The evidence of the police officer in that case was that, due to its quality, the heroin would have been "virtually unsaleable".  Indeed, there was an inference that the heroin would be sent back as it was sub-standard.  The Court of Appeal in Hasson noted that in Rimmer the Court had said that usually the courier or dealer takes no regard of the low degree of purity, which should therefore equally be disregarded by the Court, but the Court of Appeal had left open what the position might be if the low degree of purity was known to and taken into account by the defendant.  In Hasson's case, Hasson was aware that the degree of purity was low, as confirmed by his triple use of the heroin, and it seems to have been assumed that he was minding the heroin in order that it might be returned to the dealer rather than transmitted out to the drugs market.

12.      Accordingly it was said in the instant case that Banach knew this was low purity heroin because he had tried it.  He was entitled to credit partly because he would have to sell more of the heroin to an individual purchaser so that its value to him was less, and partly because the harm done to the purchaser would be less. 

13.      This Court is unimpressed by those submissions.  First of all, although we think it is likely that in some cases a heroin user will know whether the heroin he is taking is of a very high or a very low purity, it will not always be the case that this is so, and we do not think in principle that the sentence which a defendant receives should be very influenced by his assertions of what he did or did not know.  In Hasson the Court was faced with evidence adduced by the prosecution that the heroin was virtually unsaleable.  That is a quite different position from the one we have here.  Secondly, there is no reason to assume that in selling on heroin at low purity, a defendant will ensure that the purchaser of that heroin is informed that it is of low purity and we do not think that a defendant should be entitled to any credit on the starting point for the possibility that in addition to the supply of heroin to a third party purchaser, which is a criminal act in itself, he adds to the offence an element of fraud.  Thirdly, although it may be so that the harm done to a third party purchaser from heroin of 7% purity is less than it would be at a higher level, there is always the risk that on a subsequent occasion that purchaser will assume the purity to be low and effectively overdose, causing himself to be at very great risk indeed.  In our view Hasson turned on its particular circumstances in this respect.  But in any event we note that the effect of the percentage purity in Hasson was to leave the defendant within the Rimmer bracket of 8 to 10 years, but to take a starting point of 8 years and not 9.

Starting points

14.      In the present case, it seems to us there is a marked difference between the involvement of these three defendants.  We have to assess their respective involvement in drug trafficking, and the weight of the drugs is clearly an important feature in that assessment.  As far as Smitton is concerned, our view is that the Crown was right to take a starting point of 16 years' imprisonment.  We take into account not only the weight of the heroin in question but also the role which Smitton clearly played in this conspiracy - it was the lead role of the three.  He supplied the protein tub to Banach who passed it on to Reeves.  Furthermore, when assessing the involvement in drug trafficking, we think that we should take into account the cannabis conspiracy which, although made with different defendants, was operating contemporaneously.  The two conspiracies in relation to heroin and cannabis shows Smitton to be very deeply involved in drug trafficking and we think it is right therefore to fix on a starting point of 16 years' imprisonment in his case.

15.      In the case of Banach, we think that his involvement is such that, despite anything that might be said in relation to low purity of the heroin concerned, 14 years' imprisonment is the right starting point.  It is the lowest start in the band having regard to the weight of heroin concerned.  In the case of Reeves, we are taking a 13 year starting point.  We have regard here to the lesser role which he played in the conspiracy and we think that it ought to be reflected in a different starting point.  As Banach is already at the bottom of the band in question, it follows that Reeves should start slightly lower.

Mitigation

16.      As far as Smitton is concerned, it is hard to identify any mitigation at all. He pleaded not guilty and he has previous convictions for drug trafficking.  It was said by Advocate Morley-Kirk that he accepts guilt now in both conspiracies, and that he acknowledges that he made mistakes as a result of his alcohol dependency.  He is said to be very remorseful and we have taken into account his letter, in which he indicates a number of items of personal mitigation.  We have also taken into account a reference which has been supplied to us.

17.      If we were sentencing Smitton on the heroin conspiracy alone, we would have finished with a sentence of 15 years' imprisonment.  The cannabis conspiracy is a separate offence, and in theory merited a consecutive sentence.  Accordingly Smitton would have been facing an aggregate sentence of 24 years' imprisonment which we have reviewed on totality grounds.

18.      Having regard to the previous convictions which Smitton has and to the damage which this particular quantity of drugs could do to the community in Jersey, and generally the absence of significant other mitigation than his guilty plea to the cannabis conspiracy, we think the right sentence for Smitton on totality grounds is 17 years.  Accordingly he was sentenced to a term of 17 years' imprisonment in relation to the heroin conspiracy and 9 years' imprisonment concurrent (instead of consecutive) in relation to the cannabis conspiracy.  As a result of this offending Smitton is also in breach of a probation order and community service order imposed by the Magistrate in May 2018 in relation to other drug offences.  The Court revokes those orders and, in the light of the substantial period of imprisonment which Smitton is now facing imposes no additional penalty.

19.      Banach has pleaded guilty and is entitled to credit for that.  He is not of good character and there is little other personal mitigation.  Having regard to such as there is we consider a sentence of 10 years and 6 months to have been appropriate in his case.

20.      Reeves has also pleaded guilty. He, unlike his co-defendants, is of good character and he is entitled to additional mitigation for that.  Furthermore he was immediately cooperative with the police and is entitled to significant mitigation for that.  He has expressed his remorse.  We have had regard to his good employment record and in particular to the other personal mitigation which he has advanced.  In those circumstances, we considered a sentence of 7 years 6 months to be appropriate and that was duly imposed.

21.      The Court ordered the forfeiture and destruction of the drugs seized in the case.

Authorities

Rimmer v AG [2001] JLR 373. 

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

Hasson v AG [2004] JCA 124.