Jersey Unreported Judgments

Superior Number Sentencing - Drugs - importation - Class A

[2020]JRC250

Royal Court

(Samedi)

30 November 2020

The Attorney General

-v-

Thomas John Foulger

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 17^th September, 2020, following a guilty plea to the following charge:

Age:  30.

Plea: Guilty.

Details of Offence:

On 4^th December, 2019, the defendant was stopped and questioned by Customs Officers while passing through the baggage reclaim area at Jersey Airport.  The defendant had travelled alone on a flight from Southampton.  During questioning, the defendant stated that he been to the UK to return a key to his Father having been house sitting for him the previous week.  ION swabs were carried out on the Defendant's mobile telephone, shoes from within his bag and a cap; all of which provided a positive reaction to cocaine.  When asked about his drug use, the defendant admitted he had used cocaine 3 months previously.

The defendant was stripped searched, but nothing was found on his person.  He was then booked into custody and while in custody the defendant said, "I am going to be honest with you, I am going to pass something."  The defendant then passed a single plastic-wrapped package found to contain cocaine.

The cocaine held a weight of 35.45 grams, which was analysed and found to contain 83% purity. An expert report was compiled and recorded that if the drugs were sold at the local street market price, they would have a value between £4,200 and £5,300 (without adulteration) or £12,000 and £18,000 (with adulteration).

The defendant entered a guilty plea on a basis at indictment.  He alleged that the drugs were imported for his sole personal use.  This was not accepted by the Crown and the matter proceeded to a Newton Hearing.  Due to the defendant's lack of assets, lack of money in his bank accounts and irregular working pattern, the Jurat's found in favour of the Crown's case - that the Defendant had imported the cocaine, some of which was to sell onto acquaintances to fund his addiction, and some of which was for his own personal use.

Aggravating features were previous convictions for drugs offences / drug misuse, not of good character, high purity, necessitated a Newton Hearing, and did not accept full responsibility of his offending (i.e. alleging the drugs were solely for his own personal use) until after the conclusion of the Newton Hearing.

Details of Mitigation:

Reduced credit for guilty plea (however all but inevitable in the circumstances), letter of remorse, character references

Previous Convictions:

The defendant has five previous convictions for nine offences.  At aged 16, he was convicted for his first offence (possession of cannabis) in November 2006, and in March 2009 at 18 years old, he was convicted for possession of a cocaine.  Since July 2009, the defendant has no convictions

Conclusions:

Forfeiture and destruction of the drugs sought.

The Crown sought a declaration of benefit in the sum of £6,420 and a Confiscation Order in the sum of £0.  Disputed by defence and adjournment sought.

[Confiscation Hearing vacated on 12^th February 2021.  Criminal benefit in the sum of £1,428.00 and a Confiscation Order sought for a nominal amount, agreed by Counsel.]

Sentence and Observations of Court:

Conclusions granted.

Ms E. L. Hollywood, Crown Advocate.

Advocate A. E. Binnie for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for the importation of 35.45 grams of cocaine concealed internally.  The defendant had a serious cocaine habit that had escalated to using crack cocaine.  He made regular trips to the UK for "blow outs" and to purchase cocaine so that he could convert it into crack cocaine.  His addiction was clearly out of control and the intervention of the customs officers was timely. 

2.        He maintained that the cocaine he had imported on this occasion was solely for his personal use and not for onward sale.  The Crown did not accept this asserting that his lack of assets, lack of money in his bank account, irregular working pattern in conjunction with his spirally drug addition led to the conclusion that he was selling some of the cocaine to fund his addition. 

3.        The matter went to a Newton Hearing on 17^th September, 2020, at which the Court found for the Crown, namely that the defendant had imported this 35.45 grams of cocaine, partly for his personal use and partly for onward supply.  Advocate Binnie for the defendant informed us that in his view some one third of this cocaine was going to be used for onward supply. 

4.        The Social Enquiry Report describes the defendant as a complex person who has often led a frenetic chaotic existence.  Most of his life so far had been coloured by the disruptive influence of illegal drugs and he has experienced considerable difficulty in regulating his emotions and behaviour.  He has a record of previous convictions including drugs offences and is assessed at a high risk of reconviction, although we note that he has not offending since 2009 some 10 years ago. 

5.        The Court of Appeal decision in AG v Shahnowaz [2007] JLR 221 makes it clear that the guidelines in Rimmer v AG [2001] JLR 373 apply to all cases of importation, although importation for personal use was a mitigating factor.  In that case, which involved importation of 26.68 grams for sole use by the defendant, the Court said a discount of 1 year was reasonable.  The Rimmer guidelines indicate a starting point range of 8 to 10 years' imprisonment for quantities of between 20 and 50 grams and that the starting point may be increased where the purity was very high, over 75%.  In this case the purity was 83%.  It had a street value of between £4,200 and £5,300 and if adulterated, a street value of between £12,000 and £18,000.

6.        The Crown moved for a starting point of 9 years' imprisonment and submit that it wold be unfair on defendants who made full admissions to allow the defendant any credit for his guilty plea when he sought to minimise his offending necessitating a Newton Hearing.  The Crown moves therefore for a sentence of 6 years and 6 months.  Advocate Binnie for the defendant says that the starting point of 9 years is slightly too high and this with all the mitigation should result in a sentence of 5 years.  We disagree with her in relation to the starting point which we think is absolutely appropriate at 9 years.

7.        We have taken all of the mitigation put forward by Advocate Binnie into account, the defendant's letter and the references he has produced.  We agree with the Crown that a full discount for his guilty plea would not be appropriate in view of the defendant causing a Newton Hearing, and we agree that a discount for his personal use would be appropriate.  We think the Crown has taken all of this into account in moving for a final sentence of 6 years and 6 months.

8.        The defendant is only 30, and it is terrible to see the way this addiction has ruined his life.  He has tried to address his addiction before, unsuccessfully, but we very much hope that he will now take advantage of the treatment available to him in prison and after his release to address his addiction.

9.        You are sentenced to 6 years 6 months' imprisonment.

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

Authorities

Shahnowaz v AG [2007] JLR 221. 

Rimmer v AG [2001] JLR 373. 

AG v Lumb [2020] JRC 159

AG v Meadows [2017] JRC 130