Jersey Unreported Judgments

Superior Number Sentencing - drugs - Class B - Class C.

[2019JRC185

Royal Court

(Samedi)

19 September 2019

The Attorney General

-v-

Gary Patrick Hillier Smith

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 12^th July, 2019, following guilty pleas to the following charges:

Age:  37

Plea: Guilty.

Details of Offence:

The defendant travelled from Poole on the Condor Liberation on 5 May 2019 arriving at Elizabeth Harbour Ferry Terminal as a rear-seat passenger in a Ford Focus driven by his girlfriend.  Also in the vehicle was their 10 year-old child.  On arrival the vehicle was stopped by a Customs Officer.  The couple said they intended visiting the Boat Show and that they were staying in the Island for just one night.  While checking the vehicle a drug detector dog showed interest in the door areas.  A physical search was started and as soon as a suspect package was seen the defendant and his girlfriend were arrested.  The defendant immediately volunteered that drugs would be found in three of the doors, that they were his and that his girlfriend knew nothing about them.  The search of the doors revealed 120 vacuum-wrapped packages of cannabis resin weighing a total of 11,480.94 grams (with an estimated total street value of £180,000 to £240,000) and a further package containing twenty 10 ml ampoules of testosterone propionate (value approximately £1,000).  The defendant stated "It's my own stash, I should have taken it out before I came over . . . I wasn't smuggling it."  The defendant claimed during interview that he had travelled to the Island previously and not been stopped, so it did not cross his mind to remove the drugs from the vehicle prior to travel, insisting that he had not imported them with the intention of handing them over to anyone in the Island.  The defendant absolved his girlfriend of any involvement with or knowledge of the drugs, but maintained his story up until the eve of sentencing.  Immediately prior to sentence the defendant accepted that he had intended to pass the cannabis to someone in the Island on a commercial basis. 

Details of Mitigation:

The defendant made certain admissions immediately following arrest and entered guilty pleas at an early stage in proceedings.  Despite the somewhat unbelievable explanation offered with regard to the offending throughout the proceedings, the Crown invited full credit for plea. 

Previous Convictions:

Thirty-three previous convictions, mainly for burglary and theft, but also battery, threatening and abusive behaviour, carrying a bladed article and a number of motoring offences.  The defendant had served several medium-term periods of imprisonment. 

Conclusions:

The sentencing guidelines for cases concerning the trafficking of Class B drugs, indicating a starting point range of 6 to 10 years' imprisonment for quantities between 10 - 30 kilos.  As this importation involved only a comparatively small quantity of the Class C drug testosterone propionate the Crown did not invite the Court to apply a Valler uplift.  Having regard to Campbell, the Crown submitted that the defendant placed himself as being instrumental in organising the importation which should attract a starting point of 6 ½ years.  The Crown noted the Superior Number had eschewed starting points for the importation of Class C drugs.

Total: 4 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Starting point of 7 years' imprisonment.  

Total: 4 years' and six months' imprisonment.

Forfeiture and destruction of the drugs ordered.

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

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is here to be sentenced on an Indictment containing two counts.  The first is the count of being knowingly concerned in the fraudulent evasion of prohibition on the importation of cannabis resin, and the second is a similar count but in relation to a Class C drug, testosterone propionate.  

2.        The circumstances were that the defendant arrived at Elizabeth Harbour Ferry Terminal in May this year in a white Ford Focus.  He was a rear-seat passenger in the vehicle which was driven by his partner; also in the vehicle was their 10 year old son.  

3.        On arrival the vehicle was stopped by a Customs Officer, who asked the defendant and his partner the purpose of the visit.  They said they intended to visiting the Boat Show the following day and that they were staying at a hotel overnight, and that they had visited the Island before and were taking advantage of the school holiday.  They were asked whether they had anything to declare having had the prohibition on the importation of illegal drugs explained to them.  They both said they had nothing to declare. 

4.        Subsequently, the car was searched and the cannabis was found in vacuum wrapped packages of drugs behind the trim panel of the offside rear passenger door of the vehicle.  The defendant and his partner were immediately arrested and cautioned.  The partner started to cry saying she had no knowledge of it and immediately the defendant said "She knows nothing about it, it was all me, I put it there", and he then pointed to other drugs behind the rear door and the front passenger door.  He then said to Customs that "this was my stash I should have taken it out before I came over" and he followed that with a statement, "I wasn't smuggling it" and indeed when subsequently interviewed, he said he had not imported the drugs with the intention of handing them over to anyone on the Island and that he was therefore intending to take them back when he took the car back. 

5.        That last point was one put to Advocate Bell not in the context of requiring a Newton Hearing but in the context that the court would be minded in the absence of any other evidence not to accept that explanation and it was thought to be a potentially important issue in relation to sentence.  It was therefore open to the Advocate to seek to call evidence to persuade the court of the correctness of the defendant's statement.  We had an adjournment over the lunch break while Advocate Bell could take instructions.

6.        This afternoon Advocate Bell has returned to say that the defendant wanted us to proceed with sentencing on the prosecution's version of events, that was to say an importation to Jersey for onward supply and we have accordingly done that. 

7.        It seems to us that it is clear that the defendant was the organiser of this importation.  It was he who acquired the drugs in the United Kingdom, in Southampton from a man called Des and it was the defendant who stashed the drugs in the car.  He agreed a price for them, he brought them over, and we proceed on the basis that he intended to sell them or already had sold them when he arrived in the Island. 

8.        The amount involved here was 12 kilos of cannabis resin and there was 20 testosterone ampoules having a value of about £1,000.  The street value of the cannabis in Jersey is between £180,000 and £240,000.  

9.        It was in our judgment clearly a commercial enterprise and we have had regard accordingly to the question of the defendant's involvement in drug trafficking having regard to the rules laid down in the Court of Appeal case of Campbell and Ors v Attorney General [1995] JLR 136. 

10.      On weight alone we are to look at a starting point between 6 and 10 years' imprisonment for 12 kilos of cannabis.  Given that we have reached the view that the defendant was very much involved in the organising of this importation, we think that the right course is to adopt a starting point of 7 years. 

11.      We then turn to the mitigation.  Advocate Bell, says that we should allow full credit for a guilty plea.  His client apologises to the court, which is very right and proper, for a serious error of judgment.  Advocate Bell says that his client was not well at the time he was suffering from paranoia and anxiety; that his client is very relieved that his partner and family members are standing by him and that is certainly something that is important, and we accept that.  It is also said that it is relevant that the defendant has no previous drugs convictions and that he has had a difficult background which he says sets this case apart.  

12.      We have had regard to all that.  We have also looked carefully at Dr Engelbrecht's report and we have noted that, at paragraph 13.4 Dr Engelbrecht said, that she "performed a full mental state examination on the Mr Smith despite his diagnosis of schizophrenia."  Dr Engelbrecht says, "I did not find a significant impairment in the level of his functioning to the extent that it causes loss of capacity."  We will accept that that examination may have taken place later than the offending but even so it is something which we will need to take into account. 

13.      Having regard to the defendant's answers at the time and the submissions that Advocate Bell originally made this morning it does not appear to us that the defendant has much credibility with us.  We do not accept that his story as given to the Customs officials when he was arrested.  It seems that he was distancing himself from what was, as we have said a commercial organisation of this enterprise.  We are not therefore very satisfied that the defendant is showing much remorse and that is demonstrated by his failure to provide the access numbers to his telephone.  

14.      In those circumstances, although some members of the court thought that a higher sentence would be appropriate, we think the right sentence is 4 years' 6 months' imprisonment on Count 1 and 6 months' imprisonment, concurrent on Count 2.  We do not regard there to have been much mitigation apart from the guilty plea.  

15.      We would like to add this.  It appears that the police just accepted or Customs just accepted that interrogating the defendant's telephone could not be done because he had not provided the access codes.  It appears that there was no financial investigation to speak of because the answers on the defendant's bank accounts were said to be zero or close to it.  The reason for analysis of the bank accounts is not only to show the balance but it is also to show the movements on the account.  It seems to us that in circumstances where one has a quite substantial importation of cannabis, as this was, that some financial investigation would have been desirable.  

16.      It also seems to us that it ought to have been possible to interrogate the telephone and that the technicalities of carrying out that exercise should be revisited. 

17.      Mr Smith, you are sentenced to 4 years' 6 months' imprisonment on Count 1.  6 months' imprisonment, concurrent on Count 2. 

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

Authorities

Campbell and Ors v Attorney General [1995] JLR 136.

AG -v- Turmel Le Monnier and Rees [2016] JRC009