Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - possession - Class A.

[2019]JRC184

Royal Court

(Samedi)

19 September 2019

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen, Ronge, Dulake, Averty and Grime.

The Attorney General

-v-

Stuart Brian Lines

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 5^th July, 2019, following a guilty pleas to the following charges:

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. (Count 1 and Count 3).
3 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law, 1978. (Count 5, Count 7 and Count 9).

Age:  36

Plea: Guilty

Details of Offence:

On 20^th December, 2018, custom officers intercepted a postal package containing a TV mount in an Amazon box.  Inside the box a further taped package containing 6.82 grams of cocaine (Count 3).  A search warrant was executed at the address of the intended recipient. 

 

On arrival officers arrested the defendant.  During a search of the defendant's bedroom they seized 0.538 grams of cocaine (Count 5), 3 tablets containing MDMA (Count 7) and several small lumps of cannabis resin weighing a total of 86.17 grams (Count 9). 

 

Following an examination of the defendant's mobile phone, officers were able to link the defendant to an earlier postal importation that Customs Officers had intercepted in October 2017.  A package containing 12.37 grams of MDMA powder had been seized, addressed to the defendant's then home address (Count 1).  Whilst in 2017 officers had been unable to find any connection between the defendant and the MDMA, the analysis of the defendant's phone in 2018 confirmed that the defendant had provided the address to an associate in the UK for the purposes of the delivery of drugs to the Island in 2017. 

Details of Mitigation:

Guilty pleas.

Previous Convictions:

No previous conviction although received a warning for possession of class A drugs. 

Conclusions:

Count 1:	Starting point 8 years' imprisonment.  4 years and six months' imprisonment.
Count 3:	Starting point 7 years' 6 months' imprisonment.  3 years' and six months' imprisonment, concurrent.
Count 5:	6 months' imprisonment, concurrent.
Count 7:	6 months' imprisonment, concurrent.
Count 9:	6 months' imprisonment, concurrent.

Total: 4 years' and six months' imprisonment.  

Confiscation order in the sum of £1 sought. 

Forfeiture and destruction of the drugs sought.  

Sentence and Observations of Court:

Count 1:	Starting point 8 years' imprisonment.  4 years' 6 months' imprisonment.
Count 3:	Starting point 8 years' imprisonment.  4 years' 6 months' imprisonment, concurrent.
Count 5:	6 months' imprisonment, concurrent.
Count 7:	6 months' imprisonment, concurrent.
Count 9:	9 months' imprisonment, concurrent.

Total:  4 years' 6 months' imprisonment. 

Forfeiture and destruction of the drugs ordered. 

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

Advocate J. N. Heywood for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is here to be sentenced on guilty pleas to an Indictment containing in this respect 5 counts, two of importation and three of possession.  The importation is 12.37 grams of MDMA and 6.82 grams of cocaine. 

2.        These offences were both personal importations and they took place about a year apart.  As a result of the second of the importations the defendants premises was searched and he was found to be in possession of 0.5 grams of cocaine, 0.86 grams of cannabis and 0 4 grams of MDMA. 

3.        The defendant has no previous convictions.  He says he has been a small recreational user of drugs and that is consistent with a caution by the Cambridgeshire Constabulary in 2015 for possession of cocaine.  We have proceeded on the basis therefore that he is of good character because he has no previous convictions.  

4.        Unlike the last case we were dealing with this morning this one is clearly not solely for personal use.  The importation was not solely for personal use because it was intended that some of the imported drugs would be available for onward sale. 

5.        There has been a guilty plea to these counts I have mentioned.  There were other charges on the Indictment where not guilty pleas were entered, accepted by the Crown and of course we have paid no attention to those. 

6.        We are required to have regard to, first of all, the question to whether this merits a custodial sentence.  The court is quite satisfied on the authorities, particularly Rimmer and Others v AG [2001] JLR 373 that it is appropriate to impose a custodial sentence.  We do not consider that a Community Service Order is appropriate.  That would be to go in the teeth of the existing and established policy with this court. 

7.        We have looked to see what the starting point should be, bearing in mind, as I say, that the two importations took place over a year apart or a year apart or thereabouts and were two very separate offences.  The defendant was interviewed as a result of the first importation but the Authorities were unable to establish a sufficient link between him and the importation on that occasion.  He denied any knowledge of the importation then and therefore the Crown did not prosecute him at that stage and it was only in the course of the subsequent investigation that it was found that he had in fact been orchestrating the first of the importations as well.  

8.        We were not referred to it by the Crown but we mention the case of AG v MacKenzie and Richards [2011] JRC 173A where there is quite an exhaustive analysis of the correct approach to be taken when sentencing on a charge of being in possession of controlled drugs with intent to supply when the nature of that supply was what has been described as a social supply and many of those considerations will apply equally to any question of social supply attached to an importation.  MacKenzie and Richards also tackles the correct approach to be taken on what has been described as the Valler uplift.  Paragraphs 43-50 and paragraph 53 are of particular relevance:-

"43.    We now turn to the third argument which is as to whether it is fair to use the same starting point when there is no intention to traffic in the drugs as in cases where there is such an intention - in other words whether the intention of the defendant should form part of the assessment as to his role in the drug trafficking operation, and not fall in the mitigation area.  We deal with it only because the Court of Appeal has said on many occasions that in matters of sentencing policy, it will have very close regard to the views of the Royal Court. 

44.      The first thing to say is that it is in our view obvious that there is a considerable difference in terms of criminality between those who import drugs for personal use and those who import drugs for commercial purposes.  We respectfully adopt the analysis in that respect of the Court of Appeal in Gregory-v-AG and also of the Court in Shanowaz-v-AG.  The question is whether that difference should be reflected in fixing a lower starting point because the difference is part of the offence, or whether it should be applied in the area of mitigation as relevant to the offender.  The current cases are not importation cases, but it is useful to consider the question first in relation to the difference between importation for personal use and importation for commercial purposes before going on to consider potential differences of intention in relation to the possession of class A drugs with intent to supply. 

45.      The gravamen of the offence of importation is that it results in the increase in the volume of dangerous drugs circulating in the country which, as described by the Court of Appeal in Gregory is itself an evil.  If the drugs are not in the country, they cannot be consumed, in whatever fashion.  Furthermore, applying the test in Campbell, Rimmer and Bonner, it is perfectly possible for someone who is importing the drugs for personal use nonetheless to be extremely close to the main source of supply.  Whether the defendant is close to the main source of supply may sometimes be a matter which the Crown are not able to establish but in theory there is no reason why it could not be established in some cases.  Accordingly, the involvement in drug trafficking can be assessed regardless of the purpose to which the drugs will be put once they have been imported. 

46.      Secondly, one could conceive of a theoretical position whereby a wealthy drugs importer considers for misguided reasons of his own that it would be in the best interests of the community or perhaps in his best interests if he were to give, and not sell, the drugs to his friends and acquaintances.  To say at that stage that the importation was for the reasons of social supply and not commercial exploitation completely ignores the gravamen of the offence.  In our view, this goes to show that the intention of the importer is not a factor in assessing the starting point which requires a review of the importer's role in relation to the offence. 

47.      In the example given, the importer's intention, which is perhaps best described as an underlying intention because it is not mens rea of the offence, may well be relevant to the question of sentence.  If it is, it is a matter that is subjective to the importer - unsurprisingly because it reflects his intention - and therefore would form part of his personal mitigation which the sentencing court may or may not think is of significance. 

48.      In our view, similar principles apply to the supply of drugs or to the offence of possession with intent to supply.  In each case, the gravamen of the offence is that drugs have been or are intended to be supplied to others, risking damage to their health and the structure of their lives.  That they are willing participators in accepting that risk is neither here nor there as far as the offence is concerned.  The drug trafficker who deals commercially prays on their vulnerability for monetary gain.  The drug trafficker who supplies at cost with the hope of a reciprocal favour at some future date, or simply as a gift, similarly prays on their vulnerability albeit for a different purpose - not for money but for other benefits he perceives for himself.  As far as the gravamen of the offence is concerned, there is no difference. 

49.      Accordingly, we do not think that it is appropriate to have regard to what is termed as a "social supply" as a ground for reducing the starting point even if we were not constrained by the guidance which the Court of Appeal has already given, which we think we are. 

50.      Nonetheless, of course there is a difference between the supply of the drugs for profit and the supply of drugs as a "social supply".  The extent of that difference will be a matter for the sentencing court to appreciate in considering the mitigation which has been advanced.  If the social supply amounts to recovering the cost of the drugs so that the supplier in effect has his drugs for nothing or at a discounted price, it may be that the mitigation will not carry much weight.  If the defendant has supplied the drugs to particularly vulnerable persons who were not in a real position to refuse by reason of their age or other vulnerabilities, it may equally be that the sentencing court will not give too much credit for the mitigation of a so called "social supply".  There is a wide variety of factual possibilities in what has been termed a social supply of drugs, and we think it is better to leave the sentencing court to form its own assessment of the extent to which the explanations proffered on behalf of any defendant can properly be treated as mitigation. 

53.      It is clear from the case of Valler that the Royal Court and the Court of Appeal place some emphasis on the fact that there was a significant quantity of a second drug which was imported.  How significant the additional importation was in the context of the particular case will vary from case to case.  It does not seem to us to be necessary to go any further for today's purposes than to indicate that the sentencing court should make an assessment as to whether the overall criminality is properly reflected by the starting point taken for the more serious of the two drug offences.  We do not think that the question as to whether or not the Valler uplift should be applied should be affected by any analysis of the intentions of the offender as the Crown contended in the case of Richards.  These go to the mitigation of the offence and not to the offence itself.  If, for the reasons given above, the intentions of the defendant are irrelevant to the starting point, then it must follow they are also irrelevant to whether the starting point should be uplifted on Valler principles.  There remains room to make appropriate adjustments to the actual sentence by having regard to the defendant's intentions, to the extent they are relevant, when considering the reduction from the starting point in the light of the mitigation."

9.        It remains the case, if we do not apply a Valler uplift in this case, that the sentence on the second importation offence, whichever one we think is the least serious, would in effect not increase the sentence overall which the defendant will have imposed upon him.  So, what we have done is to look at the overall involvement in drug trafficking.  It is what Rimmer charges us to do, having regard to both Count 1 and Count 3 and in the knowledge that given one is dealing with MDMA and cocaine and there are slightly different quantities so that it is not necessarily straight forward to identify which is the more serious of the two offences.  

10.      When we look at the matter in the round it is clear that nearly 20 grams of Class A drugs have been imported, just under 20 grams in fact.  Had it been 20 grams on one count then applying Rimmer we would have been in the 8 - 10 years band for a starting point.  At 12.37 grams of MDMA one is in the 7 - 9 years starting point and at 6.82 grams of cocaine similarly we are in that band, and so there seems in our judgment to be an absolutely appropriate approach which the Crown has taken to look at 8 years as the appropriate starting point and we have done that.  One gets there either by looking at the overall quantity of the drugs or by doing it independently in relation to the two counts and having regard to the important factor which is the overall involvement in drug trafficking where it is clear in particular that these two importations took place many months apart.

11.      We take a starting point of 8 years.  We have had regard to the guilty plea, to the good character of the defendant.  We have noted that he has expressed some remorse although in the context of an assessment of his cooperation we have also noted that he was asked to give financial disclosure and he refused so the extent of that cooperation and perhaps also the extent of the remorse is more limited than he would otherwise have wanted us to accept.  

12.      He has given us a good reference and generally we have taken into account the Social Enquiry Report and everything which his counsel has said.  Having regard to all that mitigation our conclusions on sentence are that the Crown has the overall figure correct although we are going to adjust slightly the sentences on each offence  

Count 1:  4 years' 6 months' imprisonment.  

Count 3:  4 years' 6 months' imprisonment, concurrent.  

Count 5:  6 months' imprisonment, concurrent.  

Count 7:  6 months' imprisonment, concurrent.

Count 9:  having regard to the quantity of cannabis to 9 months' imprisonment, concurrent. 

Total:  4 years' 6 months' imprisonment. 

Forfeiture and destruction of the drugs ordered. 

Authorities

Rimmer and Others v AG [2001] JLR 373.

AG v MacKenzie and Richards [2011] JRC 173A

Valler-v- Attorney General [2002] JLR 383 (Valler uplift)