Jersey Unreported Judgments

Superior Number Sentencing - Drugs - importation - supply - Class A and Class B - proceeds of crime - reasons for sentence

[2020]JRC212

Royal Court

(Samedi)

14 October 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Thomas, Christensen and Dulake.

The Attorney General

-v-

Nicholas Maxwell Thurban

Colin Russel Sait

Paul Dennis Brown

Daniel Niall Riley

John Alexander Roy

Deborah Karen Wolff

Jon Adam Hughes

 

M. R. Maletroit Esq., Crown Advocate.

Advocate M. L. Preston for Defendant Thurban

Advocate A. E. Binnie for Defendant Sait

Advocate C. B. Austin for Defendant Brown.

Advocate S. E. A. Dale for Defendant Riley

Advocate M. J. Haines for Defendant Roy.

Advocate F. J. Littler for Defendant Wolff.

Advocate H. Sharp for Defendant Hughes

JUDGMENT

THE COMMISSIONER:

1.        On 23^rd September 2020, the Court sentenced the Defendants to varying terms of imprisonment (AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 191A) and we now give our reasons.

2.        The central charges concern a conspiracy between the Defendants Roy, Hughes, Thurban, Sait, Brown and Riley, to import illegal drugs into the island on 21^st June 2019.  There are associated money laundering charges in respect of the Defendants Riley, Roy, Hughes and Wolff, possession charges in respect of Thurban and Riley and a charge of failing to disclose the access key to his mobile phone in respect of Riley.

3.        At the relevant time Roy, Thurban, Sait, Brown, and Wolff were residing in England and Hughes and Riley in Jersey.  The importation took place on 21^st June 2019, using a yacht chartered from Hamble Point Marina.  Unbeknownst to the Defendants, they were under surveillance in what Crown Advocate Maletroit described as the most complex drug related investigation ever undertaken by the Jersey authorities.  The drugs were seized shortly after being brought into the Island and comprised:

(i)        5,113 MDMA tablets with a wholesale value in Jersey of between £20,000 and £30,000 and a street value of between £76,000 and £127,000.

(ii)       Approximately 2 kilograms of MDMA powder with a wholesale value in Jersey of between £84,000 and £112,000 and a street value of between £158,000 to £198,000.  The MDMA powder had a purity of 80%.

(iii)      1 kilogram of cocaine with a wholesale value in Jersey of between £56,000 and £70,000 and a street value of between £116,000 and £145,000.  It was of high purity (71%) and if adulterated to produce 4 - 5 kilograms it would have a wholesale value of between £168,000 and £280,000 and a street value of between £320,000 and £500,000.

(iv)      49 100 gram bars of cannabis resin with an actual weight of 4,680 grams, with a wholesale value in Jersey of between £39,000 and £58,000 and a street value of between £70,000 and £94,000.

Crown's submissions on the Defendants' role and involvement in the conspiracy

Hughes

4.        In the view of the Crown, Hughes played the lead role out of the Defendants before the Court, although it did not consider him to be at the top of the chain.  It considered that Scott Felix Jones, who is named in the indictment but who is currently in custody in Australia, was higher up the chain and provided Hughes with instructions.

5.        Hughes was in contact with all of the key players.  His role included making arrangements for the onward distribution of the drugs following the importation and the collection and laundering of cash that was needed to fund the enterprise.  He removed some of the cash himself and recruited Wolff to do the same.  He was also involved in the handovers of unknown sums of cash to a person known for present purposes as "the jeweller", which enabled criminal property to be removed from the jurisdiction by other means.  Hughes stated that he received financial reward for his role in the money laundering offences.  He accepted that some of the laundered cash was used to purchase the drugs imported on 21^st June 2019.

6.        Hughes was also involved in arranging the importation itself.  He had attempted to source a suitable vessel in Jersey but was unable to do so.  On 18^th June 2019, Hughes travelled to Southampton where he met with Roy and they attended at Hamble Point Marina to arrange the charter of the yacht.  On the morning of 19^th June 2019, Hughes travelled to Hamble Point Marina with Roy, Sait and Thurban.  Hughes and Roy sailed the yacht from Hamble Point Marina to Lymington before it was handed over to Thurban and Sait.  Hughes is seen on CCTV in possession of a mobile phone which appears to have been handed to Brown later that day (although it has not been established who actually handed the device to Brown).  Hughes then travelled to Jersey where he met with Brown on the evening prior to the importation in furtherance of the conspiracy.

7.        Hughes had made arrangements for the onward supply of drugs, having offered to supply the cannabis and MDMA tablets to Riley.

Thurban

8.        The Crown considered that Thurban joined the conspiracy well in advance of the June importation.  The Crown had regard to the significant volume of telephone contact between Thurban and Hughes in the period between 20^th March, 2019, and 21^st June, 2019.  The Crown also noted that Hughes was in contact with Thurban on 13^th June, 2019, and appears to have been the "friend" that Hughes wished to speak with in relation to the proposed purchase of a RIB.  This evidence suggests that Thurban had some involvement in arranging the importation.  The Crown also noted Thurban's comment to the Probation Officer that he had been receiving a weekly allowance to play his part in the criminal enterprise, which he used to support himself until his arrest, which further suggests involvement prior to the importation itself.

9.        Thurban played a key role in transporting the drugs to the Island, which was an important objective of the conspiracy (and an essential step to facilitate supply).  Over the course of two days, Thurban sailed the yacht from Lymington to Brixham and then to Jersey.  The AIS system was turned off as the vessel approached the Island.

10.      The 8 MDMA pills found in his possession were from the same batch as the main consignment (despite his denial of this in interview) which suggested a higher level of knowledge and involvement.  In the Crown's view, a mere courier would not normally have such a level of control over the drugs to allow to himself a personal quantity.

Roy

11.      Roy was involved in organising the importation.  He played a key role in securing the vessel to be used, knowing that it was to be used to move controlled drugs.  Roy used his sailing qualifications to secure the charter, which he paid for using £1,500 of the £3,000 that was transferred to him on 18^th June 2019.  Roy provided false details on the charter booking form.  He sailed the vessel from Hamble Point Marina to Lymington where it was handed over to Thurban and Sait.  Roy attended at Brixham Harbour on 20^th June, 2019 to show his sailing certificate in order that the vessel could stay there overnight.

12.      In addition to his direct involvement in the importation Roy made a trip to Jersey at the beginning of April 2019 the sole purpose of which appears to have been the collection of tainted cash and the removal of that cash (£6,000 on his account) from the jurisdiction (Count 17).

Sait

13.      Sait also played a key role in transporting the drugs to the island.  He was on board the yacht as it travelled from Lymington to Brixham and then to Jersey.  Sait brought the drugs ashore at Bel Val Bay and handed them to Brown who was waiting on the beach.  In exchange for the drugs, Sait was given a bag containing cash which he took to the yacht before the vessel was intercepted by customs officers.

Brown

14.      Brown was the shore party on 21^st June, 20120.  He was handed a mobile phone in the UK on 19^th June 2019.  He travelled to Jersey the following day and met with Hughes at a restaurant where they discussed the importation.  Brown prepared for the importation by purchasing various items from Black's retail store.  He was at some point handed a large sum of cash.  On the day of the importation, his role was to exchange the cash for the drugs that were brought ashore by Sait.  Brown appears to have realised he was under surveillance and discarded the rucksacks containing the drugs and attempted to leave the area, but he was stopped and arrested.

Riley

15.      Riley joined the conspiracy well in advance of the June importation.  There is evidence of his communication with Hughes, but no evidence of him communicating directly with any of the other Defendants.  On 30^th April 2019, Riley handed Hughes a rucksack containing criminal property (£2,500 on his account) which was connected to the future supply of drugs (Count 13).  Riley admits meeting with Hughes on other occasions and accepts that they discussed the supply of drugs.  Riley agreed to take possession of the MDMA tablets and cannabis resin to sell on.  He made arrangements for the onward supply of these drugs prior to the importation.  The covertly recorded conversations give an insight into the level of involvement that Riley had in drug dealing.  The conversations evidence him lining up customers, discussing the prices at which the drugs would be sold, as well as discussing the collection of the proceeds of supply and the profits that he intended to make.

16.      There is no evidence that Riley played a part in sourcing the drugs in the UK or in the importation itself.  Nevertheless, in the view of the Crown, Riley's role in the enterprise was a significant one.  Riley had the local contacts needed to facilitate the supply of a large consignment of MDMA tablets and cannabis resin at wholesale level and he had made the necessary arrangements to distribute those drugs.  His activities may have been localised to Jersey, but he certainly was not at the bottom of the supply chain.

Guideline case and Valler uplift

17.      The importation of the MDMA powder (Count 2) carried the highest penalty while the sentences for the importation of the MDMA tablets (Count 1), cocaine (Count 3) and cannabis (Count 4) carried lower concurrent sentences.  We will therefore focus on the sentence imposed for the importation of the MDMA powder, which concerns Hughes, Thurban, Roy, Sait and Brown, for which the guideline case is Rimmer v AG [2001] JLR 373.  That case indicated a starting point of 14 years' imprisonment and upwards for quantities of 400 grams or more.  In this case, we were dealing with approximately 2 kilograms of MDMA powder. Riley stands to be sentenced for his part in the conspiracy for the importation of the MDMA tablets and the cannabis resin and we will address the starting point for him separately.

18.      In Rimmer, the Court of Appeal considered that in cases where the degree of purity is high, at about 75% or greater, it would be appropriate to increase the starting point to reflect that the consignment is likely to be adulterated, or if not adulterated, that it would do greater harm to the consumer (paragraph 29).  In this case, the MDMA powder had a purity of 80%, and in the circumstances, the Crown considered it appropriate to increase the starting point to reflect that high purity.

19.      In Valler v AG [2002] JLR 383, the Court of Appeal considered the approach that should be taken when sentencing cases involving the trafficking of substantial quantities of more than one type of drug.  The Court approved the approach of increasing the starting point for the more serious count to reflect the other offences.  In Valler, the Defendant imported 500 grams of heroin and 5,000 MDMA tablets and a two-year uplift was applied by the Royal Court and approved by the Court of Appeal. 

20.      This approach was followed in AG v Wootton [2003] JRC 034 which concerned the importation of 340 grams of cocaine and 480 MDMA tablets and a two-year uplift was applied.  In AG v Barratt [2017] JRC 046, the Defendant imported approximately 18,000 MDMA tablets, 4 kilograms of MDMA powder and 37 kilograms of cannabis resin and a three-year uplift was applied.

21.      The Crown considered it appropriate to apply a three-year Valler uplift to the sentence for the importation of the MDMA powder to reflect the importation of the other three illegal drugs, the quantities of which were significant.  We will address the Valler uplift for Riley separately.

Discount for guilty pleas

22.      Crown Advocate Maletroit referred the Court to the decision of the Court of Appeal in Carter v AG 1994/192 which was endorsed in Rimmer at page 385 and Campbell v AG [1995] JLR 136 at page 146 namely:

"The court now turns to such mitigation as there is.  The applicant pleaded guilty to the indictment and for this he is entitled to a substantial discount.  In Clarkin and again in Wood v Att. Gen. C.A. February 15^th, 1994, the court made a deduction of one-third for the plea of guilty.  We accept that such a reduction is customary and in line with a well-established principle.  Nevertheless we take the view that such a reduction is in no sense an inflexible rule and the precise deduction in each case must depend upon the circumstances in which the guilty plea came to be made.  In some circumstances the evidence will make a guilty plea all but inevitable, but in other cases that may not be so."

23.      The Court applied this approach agreeing with the view of the Crown that for the Defendants effectively caught red-handed, namely Thurban and Sait on the yacht and Brown on the shore, a guilty plea was all but inevitable on their part, but recognising that even so, the cost of the trial (in this case what would have been a costly trial) had been avoided and therefore a substantial, but less than one third reduction, was appropriate.

Assertions as to knowledge of type, quantity or quality of drugs

24.      The Crown had not accepted any of the bases of pleas because they contained assertions of fact which are outside the Crown's knowledge and which concerned, in particular, a defendant's knowledge of the type, quantity or quality of the drugs that were imported on 21^st June 2019.  There is no obligation to hold a Newton hearing where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation which the Court is not bound to accept (Cairns [2013] EWCA Crim 467).

25.      Furthermore, in the Crown's view, assertions as to a defendant's knowledge (or lack of knowledge) of the type, quantity or quality of the drugs does not amount to proper mitigation in a case such as this one.  In Campbell, for example, the Court of Appeal held (at page 145) that a mistaken belief as to the type of drug imported (where the defendant is charged with importation) is not a mitigating factor:

"...the moral blameworthiness is the same, whatever the nature of the drugs imported.  Furthermore, viewed from the perspective of the community, the evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug.  There may be very exceptional circumstances in which a genuine belief that a different drug was being carried might be relevant to sentence.  But in general we endorse the Royal Court's view that an erroneous belief as to the type of drug being carried is not a mitigating factor."

26.      In the instant case, when considering a conspirator's assertion as to their knowledge of the type of drugs, we took into account that the mens rea requirement for the offence of conspiracy to supply is different to that of importation (as in Campbell).  In the case of conspiracy, knowledge or belief that the agreement involved the specific controlled drug or class of controlled drug is an essential element of the offence.  Indeed, several of the Defendants' first bases of pleas were rejected on technical grounds because the mens rea elements had not been fully established.

27.      In AG v Smitton, Banach and Reeves [2019] JRC 099, the Court considered that knowledge of the low purity of the drugs is not a mitigating factor, commenting "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."

28.      Just as the Court will not allow mitigation for claimed threats made against defendants because it is impossible to know whether the suggestion is true (see AG v Miah [2004] JRC 048 at paragraphs 8 - 10), the same principle applies in relation to assertions about a defendant's knowledge of the type, quantity or quality of the drugs.  It would be all too easy for a defendant to claim that he knew about one drug but not the others, and almost impossible for the Crown or the Court to establish whether the assertion is true or not.  Furthermore, in the instant case, each substance is the subject of a separate conspiracy charge, and the requisite mens rea has been admitted by virtue of each of the Defendants' guilty plea.  Accordingly, the Court is not bound to accept such assertions. They are not material to sentence and we make no reference to them.

Crown's conclusions

Hughes

29.      Taking Hughes first, the Crown took a starting point of 17 years, following Rimmer and taking into account the purity of the MDMA powder, to which the Crown added 3 years by way of a Valler uplift, giving a final starting point of 20 years' imprisonment.

30.      Whilst Hughes had pleaded guilty, he did so some six weeks prior to trial, following legal argument in which his application to exclude various prosecution evidence was unsuccessful.  In these circumstances, the Crown did not consider a full third of reduction warranted.  He also has previous drug trafficking convictions and was assessed at a high risk of reconviction.  Allowing for mitigation, the Crown therefore moved for a sentence of 16 years' imprisonment.

Thurban

31.      For Thurban, the Crown took a starting point of 16 years' imprisonment, following Rimmer and taking into account the purity of the MDMA powder, to which the Crown added 3 years by way of a Valler uplift, giving a final starting point of 19 years' imprisonment. 

32.      Thurban had pleaded guilty on 23^rd January 2020, which was the first opportunity for him to do so following receipt of legal advice, but he was not cooperative and given his presence on the yacht, his guilty plea was deemed all but inevitable.  In these circumstances, the Crown applied a significant discount to reflect his guilty plea, but not a full third reduction.  He had a previous conviction for very similar conduct for which he was sentenced in 2015 to 2 years' imprisonment by the Criminal Court of Cherbourg and he was assessed at a high risk of reconviction. 

33.      Taking into account mitigation, the Crown moved for a sentence of 14 years' imprisonment. 

Roy

34.      For Roy, the Crown took a starting point of 16 years' imprisonment, following Rimmer and taking into account the purity of the MDMA powder, to which the Crown added 3 years by way of a Valler uplift, giving a final starting point of 19 years' imprisonment. 

35.      Roy had pleaded guilty on 23^rd January 2020, which was the first opportunity for him to do so following receipt of legal advice. He has a previous conviction in Australia in 1998 for importing by yacht 8 tons of cannabis into Queensland, for which he was sentenced to 14 years' imprisonment and he was convicted in 1993 for failing to declare the transfer of $21,000 on arrival in Australia. The record also showed numerous outstanding matters before an Australian court in 2010.  He was assessed at a high risk of reconviction. 

36.      Counsel for Hughes informed the Court that Roy was a suspect in criminal proceedings in Australia, which involved Jones, but this was not taken into account by the Crown and the Court discounted it.  Taking into account mitigation, the Crown moved for a sentence of 13 years 9 months' imprisonment.

Sait

37.      For Sait, the Crown took a starting point of 15½ years, following Rimmer and taking into account the purity of the MDMA powder, to which the Crown added 3 years by way of a Valler uplift, giving a final starting point of 18½ years.  Sait had pleaded guilty on 23^rd January 2020, which was the first opportunity for him to do so following receipt of legal advice, but given his presence on the yacht, his plea was deemed all but inevitable, for which a full one third reduction was not warranted.  This was Sait's first drug related conviction, but he was assessed at a high risk of reconviction and taking into account mitigation, the Crown moved for a sentence of 12 years and 3 months' imprisonment.

Brown

38.      For Brown, the Crown took the same starting point of 18½ years.  He too had pleaded guilty on 23^rd January 2020, which was the first opportunity for him to do so following receipt of legal advice, but his being caught receiving the drugs in Jersey made his plea all but inevitable in the view of the Crown.  He had no relevant convictions and was assessed at a moderate risk of reconviction.  Taking into account all the mitigation, the Crown moved for a sentence of 12 years and 3 months' imprisonment.

Defence submissions and sentence

39.      Counsel for Hughes, Thurban, Roy, Sait and Brown submitted that the Valler uplift of three years was too high, pointing out that in AG v Barratt, the quantity of drugs was very substantially more.  There is no guidance on the amount of the Valler uplift to be applied in any given case and it is therefore fact specific.  In the context of this case, we were persuaded by defence counsel that two years was the appropriate uplift and, in the circumstances, applied a two-year uplift to the starting point in each of their cases.

Hughes

40.      Advocate Sharp, for Hughes, submitted that Hughes' pleas to the money laundering charges against him had been made at the earliest opportunity, which we accept, but he acknowledged that the guilty pleas to the importation charges were made late.  However, he argued that a trial of this case would have been complex and costly, and notwithstanding the lateness of those pleas, a discount of 25% should still be allowed.

41.      He challenged the Crown's assessment of Hughes' role, asserting that Roy and Jones were associates and the Crown had acknowledged that Jones was higher up the chain.   He pointed to Roy's 1998 Australian conviction and to his being a suspect in the current criminal proceedings in Australia involving Jones.  He said that Hughes had been introduced by Thurban into an enterprise which already involved Jones and Roy.  An illustration of Hughes' limited authority which gave a better insight into the dynamic, he said, was the proposed purchase of a RIB in Jersey, for which he had to seek instructions from someone in the UK. 

42.      Advocate Sharp submitted that the appropriate starting point was 16 years, following Rimmer, increased by the Valler uplift of two years to 18 years.  Allowing for a 25% discount for his guilty plea that would reduce the sentence to 13 years and 6 months and allowing for the other mitigation should result in a sentence of 12 years.

43.      The Court agreed with the Crown's assertion as to Hughes' role and involvement in this importation, which was well supported by the known facts, as summarised above, and further illustrated by the Telecommunications map.  The Court also agreed with the Crown's starting point following Rimmer of 17 years, taking into account the quantity and purity of the MDMA powder.  Applying the reduced Valler uplift of 2 years, the Court arrived therefore at a final starting point of 19 years.

44.      The Court took into account the personal mitigation put forward by Advocate Sharp, including in particular the letter of remorse from Hughes and the references, but notwithstanding the personal history and consequences of his actions, he was motivated by money and in the Court's view there was little real personal mitigation available to him.

45.      Making a substantial allowance for his guilty plea, but not the full one third because of the late plea, and what personal mitigation there was, the Court imposed a sentence of 14 years and 3 months' imprisonment.

Thurban

46.      Advocate Preston, for Thurban, also submitted that the starting point following Rimmer was too high.  He said the starting point should be 15 years, which with a Valler uplift of 2 years would give rise to a final starting point of 17 years.

47.      He challenged the Crown's assessment of Thurban's role and involvement, saying that he was "the boatman" and no more than a skilled courier.  He gave no instructions, did not source the drugs and was not involved in the planning, the distribution of the drugs in Jersey and the laundering of the proceeds.  Thurban should, he said, be given the full one third discount for his guilty plea and by reference to his personal circumstances asked the Court to exercise a degree of mercy.  He suggested 11 - 12 years sentence would be appropriate for Thurban.

48.      The Court agreed with the Crown's assessment of Thurban's role and involvement for the reasons set out above.  The Court also agreed with the Crown's starting point following Rimmer of 16 years, taking into account the quantity and purity of the MDMA powder.  Applying the reduced Valler uplift of 2 years, the Court arrived, therefore, at a final starting point of 18 years.

49.      Whilst Thurban had pleaded guilty at the earliest opportunity, it was, as we previously stated, all but inevitable but even so, a complex and costly trial had been avoided and so the Court made a substantial allowance for it, but not the full one third.  The Court took into account the personal mitigation put forward by Advocate Preston, including the letter of remorse and the references, but notwithstanding the personal history and consequences of his actions, he too was motivated by money and in the Court's view there was little personal mitigation available to him.  This was not an appropriate case for the Court to exercise any degree of mercy. Taking all this into account, the Court imposed a sentence of 13 years and 6 months' imprisonment.

Roy

50.      Advocate Haines, for Roy, also submitted that the starting point following Rimmer was too high.  He said the starting point should be 15 years, which with a Valler uplift of 2 years would give rise to a final starting point of 17 years.

51.      He too challenged the Crown's assessment of Roy's role and involvement, saying he was a late recruit to the enterprise, with no role before 13^th June 2019.  Save for chartering a boat (his only role) he made no operational decisions and never took possession of the drugs at any stage.  He was not trusted to act solo and his role ended on 20^th June 2019, the day before the importation. 

52.      As for Roy's conviction in Australia in 1998, this was 22 years ago, and was of no relevance at all.  As for the current criminal proceedings in Australia involving Jones, Roy had not been convicted of any offence or indeed even been charged.

53.      He submitted that Roy should receive a full one third discount for his guilty plea made on 23^rd January 2020 and given credit for his cooperation with the police in providing them with a bank authority and pin numbers.  Taking into account all of the mitigation available to him, Advocate Haines submitted that the sentence should be between 11 and 12 years.

54.      The Court agreed with the Crown's assessment of Roy's role and involvement for the reasons set out above.  The assertion that he had no role before 13^th June 2019 was not supported by his trip to Jersey at the beginning of April 2019 to launder some £6,000 for which he had pleaded guilty (count 17).  He claimed to the probation officer that he did not realise he was handling the proceeds of crime and was coming to collect money that was owed to him for something else.  When asked further about this, he stated "I would rather not say", but in any event, he has, of course, pleaded guilty to the money laundering offence.

55.      Whilst the Court took into account that the Australian conviction was 22 years ago, it did not agree that this very large importation again by boat was irrelevant. It could be taken into account in considering his involvement in this matter.  As the Court said in AG v O'Connor et al [2019] JRC 093A at paragraph 5:

"We think that their involvement in drug trafficking can be established not only from the amount of drugs which are involved but also from looking at their conduct more generally and if they have previous convictions for drug trafficking that shows a higher degree of drug trafficking involvement than would otherwise be the case.  We think that what we are charged to do on the authorities is to look at the involvement in drug trafficking and that it stands to reason that if a person had previous convictions for drug trafficking and commits a further offence of a similar kind one can conclude that his involvement is greater.  In particular we also take into account that the danger to the public is increased by these offences where they occur with a regularity in relation to the same offenders, because presumably they will have learnt what went wrong on previous occasions and they continue to do it and will be therefore more professional in the way they go about it next time round."

56.      As previously stated, the Court discounted completely the assertion by Hughes that Roy was a suspect in criminal proceedings in Australia.  The Court took into account the personal mitigation put forward by Advocate Haines and in particular, Roy's letter of remorse and his references, and notwithstanding his personal history and the consequences of his actions, he was again motivated by money, and in the Court's view there was little personal mitigation available to him, other than his guilty plea, for which the Court agreed he should have the full one third discount.

57.      The Court agreed with the Crown's starting point following Rimmer of 16 years and adding 2 years by way of a Valler uplift, this resulted in a final starting point of 18 years.  Allowing for his guilty plea, the Court imposed a sentence of 12 years' imprisonment.

Sait

58.      Advocate Binnie, for Sait, also submitted that the starting point following Rimmer was too high.  There was only a 6 months' difference between his starting point and that of Thurban, an insufficient disparity when taking into account his more minor role.  The disparity between him and Hughes was also too small. The Court agreed with the Crown's assessment of Sait's role and involvement in this importation for the reasons set out above and that 15½ years was the appropriate starting point, following Rimmer and taking into account the quantity and purity of the MDMA powder.  Adding 2 years to the Valler uplift gave a final starting point of 17½ years.

59.      Sait had pleaded guilty on 23^rd January 2020, but for the same reasons set out above, this was inevitable in the view of the Court, so that whilst he was entitled to a substantial discount for that plea, saving the cost of a complex and costly trial, he was not entitled to a full one third.  The Court took into account his personal mitigation put forward on his behalf by Advocate Binnie, his personal history and the consequences of his actions but noted that he too was motivated by money.

60.      Allowing therefore for his guilty plea, his good character, his letter of remorse and reference and all of the other personal mitigation put forward on his behalf, the Court arrived at a final sentence of 12 years.

Brown

61.      Advocate Austin, for Brown, also submitted that the starting point was too high.  There was only a 6 months' difference between his starting point and that of Thurban, an insufficient disparity when taking into account his more minor role.  Advocate Austin submitted that a final sentence of 9 years 6 months was appropriate.

62.      Brown's record shows historical non drug related convictions in 1979 and one driving offence in 2009, and in the Court's view, he was to be treated as being of good character.  He was assessed as being at a moderate risk of reconviction.  He did plead guilty on 23^rd January 2020, but again, in the view of the Court, that plea was all but inevitable, so that whilst he was entitled to a substantial discount for avoiding a complex and costly trial, he was not entitled to the full one third.

63.      Brown said he did not throw away the rucksacks because he thought he was under surveillance.  When Sait handed them to him, he said "This is not what you think it is."  Realising that he was involved in something more serious than he previously thought, he tried to stop his involvement by throwing the rucksacks away and attempting to leave. 

64.      The Court agreed with the Crown's assessment of Brown's role and involvement for the reasons set out above and that 15½ years was the appropriate starting point following Rimmer and taking into account the quantity and purity of the MDMA powder.  Adding 2 years for the Valler uplift gave rise to a final starting point of 17½ years. 

65.      The Court took into account the personal mitigation put forward on his behalf by Advocate Austin and his personal history and the consequences of his actions, but he too was motivated by money. Allowing for his guilty plea, his good character, his letter of remorse and references and all of the other mitigation put forward on his behalf, the Court arrived at a final sentence of 12 years.

Riley

66.      Riley stood to be sentenced for Count 1, conspiracy to import MDMA tablets, and Count 4, conspiracy to import cannabis resin, the former being the more serious of the two offences, for which Bonnar v AG [2001] JLR 626 is the guideline case and which indicates a starting point of 11 - 14 years' imprisonment for quantities of between 4,000 and 5,500 tablets.  5,113 tablets were seized in the instant case.

67.      The Crown took a starting point following Bonnar of 14 years.  To take into account his involvement in the importation of the cannabis resin, the Crown applied a 1-year Valler uplift to arrive at a final starting point of 15 years.

68.      Advocate Dale, for Riley, submitted that his role was no greater than that of Brown and that the starting point following Bonnar for the importation of the MDMA tablets should be 13 years.  In terms of the Valler uplift, she pointed out that 1 year represented some 40% of the 2 years 6 months sentence the Crown was seeking for the cannabis importation following a 4-year starting point, pursuant to the guidelines in Campbell v AG.  If the Court were to reduce the sentence for the cannabis importation to 2 years, the Valler uplift would equate to some 50%.  She pointed out that the other Defendants were receiving a Valler uplift which equated to some 16-17% of the sentences for the other offences. She submitted that an appropriate uplift would be 6 months. The Court considered that there was some force in this submission and therefore applied a Valler uplift of 6 months.

69.      Riley minimised his role in these two importations, describing his involvement as almost accidental and a misunderstanding.  He said he was trying, through Hughes, to gain access to his own regular supply of cannabis and wanted to give the impression he was more involved in the drug scene than he was, in order to impress Hughes.  He did not know the full amounts involved in these importations until 13^th June 2019, but once committed, he could not turn back.

70.      The Court agreed with the Crown's assessment of Riley's role and involvement in these two conspiracies for the reasons set out above and we noted that as far back as 29^th April 2019, he paid for Thurban's travel to London from Barbados, although he says at that time he did not have any idea of the wider conspiracy.  We agreed that 14 years was the appropriate starting point to which we added 6 months by way of a Valler uplift to arrive at a final starting point of 14 years 6 months.  He has previous convictions for 8 drug related offences which include drug trafficking offences as a youth and as an adult offender, to which the Court had regard following O'Connor et al. 

71.      As for personal mitigation, the Court took into account everything put forward by Advocate Dale and the other material before the Court, which enabled the Court to make a very substantial deduction from the starting point of 14 years 6 months to a final sentence of 7 years and 8 months.

72.      He also stood to be sentenced for one count of failing to comply with a notice requiring disclosure of a key, contrary to Article 42F(i) of the Regulation of Investigatory Powers (Jersey) Law 2005 ("the 2005 Law"), namely for failing to comply with a notice dated 20^th September 2019 requiring disclosure of a key for an iPhone X.  This offence carries a maximum sentence of 5 years' imprisonment and a fine. 

73.      This is a relatively new offence, inserted into the 2005 Law by the Cybercrime (Jersey) Law 2019.  This legislation was enacted to bring Jersey into line with the Council of Europe Convention on Cybercrime which requires member states to have the ability to require a relevant person to enable access to a device in certain defined circumstances (here, for preventing or detecting crime).  To this end, Article 42B of the 2005 Law empowers a police officer, with appropriate permission from the Bailiff, to issue a notice requiring the disclosure of an access key, such as a PIN code to a mobile phone.

74.      The Court agreed with the Crown that there are obvious public policy grounds for imposing a consecutive sentence for this offence if it is to have any traction at all.  The Crown sought a sentence of 18 months' imprisonment consecutive.

75.      Ordinarily, this would have been the appropriate penalty on the facts of this case, but in the light of the mitigation put forward on behalf of Riley and taking into account the other material before the Court, we reduced the sentence to 6 months.  Accordingly, for the two importation offences and this offence for failing to provide a key, Riley was sentenced to a total of 8 years 2 months imprisonment.

Money laundering

76.      Hughes, Roy, Riley and Wolff stood to be sentenced for various money laundering offences which related to the financing of this enterprise in Counts 8 to15 and Count 17.  Having regard to the principle of totality the Crown moved for the money laundering sentences in relation to Hughes, Roy and Riley to run concurrently with their sentences for the drugs offences and as the sentences imposed for these money laundering charges make no difference to the term of imprisonment each must service, we will not comment further in this judgment.  The same applies to the possession charges involving Thurban and Riley.

77.      Wolff, however, stood to be sentenced in respect of two counts of entering into a money laundering arrangement (Counts 8 and 9).  She was not party to the conspiracy to supply drugs.

78.      The Crown assessed Wolff's role and involvement in this way.  She removed criminal property from the island on two separate occasions.  The first trip involved her travelling to the island on 13^th May 2019 and removing £8,000 of criminal property on her return trip the following day.  Her second trip involved her travelling to the island on 5^th June 2019 and removing £7,500 of criminal property on her return flight only a few hours later.  Wolff was acting on the instruction of Hughes, who met her at the airport and handed her the cash to be removed.  It is the Crown's case that she was paid to carry out these cash runs.

79.      The Crown referred the Court to the following comments made by the Court in respect of the sentencing of defendants for money laundering offences in the case of AG v Fish and Hinds [2016] JRC 181A at paragraph 3:

"The Crown has accepted that the two defendants had no knowledge of the antecedent offence, that is the offences committed which led to the criminal proceeds and then to the money laundering.  The Court thinks that this does not matter.  Just as the courier takes the risk of Class A drugs when he brings drugs into the island not knowing exactly what the drugs are, and the Court sentences on the basis of whatever those drugs might be, the money launderer also takes the risk of the nature of the underlying offence being drug trafficking.  In the present circumstances the Court considers that it is plain that the most likely explanation of the underlying criminal offence was drug trafficking.  We do not accept Advocate Haines' submission that it would be pure speculation to say that this represented the proceeds of drug trafficking for a number of reasons; one of them is the division of cash into £10, £20 and £50 notes -  the £50 notes in particular are a well-known indicator of street deals in drugs and that was referred to in the Privy Council decision in AG v O'Brien and Others [2002] JRC 137A some years ago"

80.       In AG v Brennan [2016] JRC 234 at paragraph 3, the Court said this:

"Unlawful activity such as, for example, dealing in drugs, cannot thrive unless individuals are prepared to assist in channelling the criminal proceeds of that conduct back to those who engage in it.  Acting as a courier facilitates criminal activity no matter what it is and is accordingly viewed by the Court as a serious matter."

81.      For the purposes of comparison, the Crown also referred the Court to AG v Whelan, Grace and Robinson [2017] JRC 040B, in which Grace and Robinson had travelled on the ferry in a hire car to Jersey from Poole.  They were each to be paid £500 plus expenses to bring the hire car to Jersey, leave it unlocked in People's Park car park, retrieve it the next day and take it back to England.  They believed that £80,000 in cash would be concealed in the car by a third party and they believed that the cash was the proceeds of crime.  They were each cooperative, entered early pleas of guilty and had no previous convictions.  They were sentenced to 2 years' imprisonment and 21 months' imprisonment respectfully.

82.      In AG v Rae and Spinola [2017] JRC 080, Rae had made three trips to Jersey from Southampton.  During his first two trips, Rae was handed £14,200 in cash which he paid into his bank accounts before leaving the island.  During his third trip, Rae was observed meeting Spinola in Spinola's car.  They were arrested and £8,000 cash was seized from the foot well of the car.  Rae, who had previous convictions but also the benefit of early guilty pleas was sentenced to 4 years' imprisonment, which was upheld on appeal (Rae v AG [2017] JCA 197).

83.      Wolff has no previous convictions and was therefore of good character and she pleaded guilty, but not until 30^th April 2020.  She was assessed at being at a low risk of reconviction.  She maintained, somewhat implausibly in the view of the Court, that she did not act for financial reward.  She only knew Hughes, who she felt had taken advantage of her. 

84.      By reference to the principles set out in the leading case of AG v Goodwin [2016] JRC 165, Advocate Littler submitted that:

(i)        the amounts here, £15,500, were low;

(ii)       her suitcase containing the money was simply put into the hold - it was not a sophisticated operation;

(iii)      there were only two trips, one month apart, and

(iv)      she was not a skilled courier - that is why she was chosen.

85.      Wolff is now 54 years of age, is of good character, has an excellent work record and settled home life, very similar to the defendants in AG v Whelan, Grace and Robinson, whose offence involved a much larger sum, but who received a much lower sentence than that proposed by the Crown.  Advocate Littler also pointed out that the defendants in AG v Rae and Spinola were involved in a much more sophisticated operation.  Quoting from the judgment in that case at paragraph 2:

"The defendants were involved in a criminal enterprise operating at a significant scale in which Spinola acted as the banker in Jersey, collecting the proceeds of the sale of drugs in Jersey and handing it over to Rae, who would come over to Jersey to bank it in cash in two bank accounts he had here, whereby the proceeds were paid upstream to associates in England ... the quantities of cash were such that Spinola had acquired a safe and a cash counting machine."

86.      Advocate Littler also referred the Court to AG v Cooney [2019] JRC 039A where a money laundering offence involving £5,350 attracted a sentence of 12 months' imprisonment.

87.      Despite the late plea, Wolff is entitled to a substantial discount, although not the full one third.  Having regard to the personal mitigation put forward on her behalf by Advocate Littler, her letter of remorse and references, her good character and her guilty plea, the Court accepted that the sentence moved for was too high and reduced the conclusions of the Crown, imposing a sentence of 2 years' imprisonment for each count concurrent with each other, making a total sentence of 2 years' imprisonment.

Conclusion

88.      In terms of the final total sentences imposed by the Court upon the Defendants in respect of all of the counts in the Indictment for which they stood to be sentenced, the position is as follows:

(i)        Hughes, 14 years 3 months imprisonment;

(ii)       Thurban, 13 years 6 months imprisonment;

(iii)      Roy, 12 years imprisonment;

(iv)      Sait, 12 years imprisonment;

(v)       Brown, 12 years imprisonment;

(vi)      Riley, 8 years 2 months imprisonment; and

(vii)     Wolff, 2 years imprisonment.

Authorities

AG v Thurban Sait Brown Riley Roy Wolff Hughes [2020] JRC 191A

Rimmer v AG [2001] JLR 373. 

Valler v AG [2002] JLR 383. 

AG v Wootton [2003] JRC 034. 

AG v Barratt [2017] JRC 046. 

Carter v AG 1994/192. 

Campbell v AG [1995] JLR 136. 

Cairns [2013] EWCA Crim 467. 

AG v Smitton, Banach and Reeves [2019] JRC 099. 

AG v Miah [2004] JRC 048. 

AG v O'Connor et al [2019] JRC 093A

Bonnar v AG [2001] JLR 626. 

Regulation of Investigatory Powers (Jersey) Law 2005

Cybercrime (Jersey) Law 2019

AG v Fish and Hinds [2016] JRC 181A. 

AG v Brennan [2016] JRC 234. 

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

AG v Rae and Spinola [2017] JRC 080. 

Rae v AG [2017] JCA 197. 

AG v Goodwin [2016] JRC 165. 

AG v Cooney [2019] JRC 039A.