Jersey Unreported Judgments

Drugs - decision in respect of confiscation.

[2021]JRC103

Royal Court

(Samedi)

13 April 2021

Before     :

Sir William Bailhache, Commissioner, and Jurats Ramsden, Pitman and Austin-Vautier

The Attorney General

-v-

Carlos Andre Romano Teixeira

M. Jowitt Q.C., HM Solicitor General for the Attorney General.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE Commissioner:

Introduction

1.        This is the judgment of the Court following a confiscation hearing held on 5^th February 2021.

2.        The Defendant was sentenced by the Superior Number of the Royal Court on 21^st January 2021, to a total period of 4½ years imprisonment in respect of an indictment containing four counts, the most serious of which was Count 1, namely, possession of cocaine with intent to supply (AG v Teixeria [2021] JRC 016).  The remaining counts involved possession only charges in relation to an MDMA tablet, some MDMA powder and some cannabis.  Although the Attorney General's statement was available to the Court on sentence, the confiscation hearing was postponed by agreement until 10:00a.m. on 5^th  February 2021.

3.        The summary of facts put before the Royal Court on sentencing was in material respects as follows.  The Defendant is aged 43 years, and has 15 previous convictions, 11 of which are for drug offences.  Of those, two involved an element of supply.  The Crown say the most relevant of these was a conviction for possessing a commercial quantity of cocaine with intent to supply in 2009, for which he received a four-year prison sentence.  On 15^th December 2019, a police officer was informed by a member of the public that the Defendant had been seen "snorting a line of coke off the counter" in a nearby takeaway shop.  Following a short foot chase, the Defendant was detained in Conway Street and the following items were recovered from him on search:

(i)        7 zip-lock bags, 6 containing white powder which later proved to be cocaine;

(ii)       A green tablet with LEGO marked on its surface which proved to contain MDMA, otherwise known as Ecstasy;

(iii)      A zip-lock bag containing cannabis resin and herbal cannabis;

(iv)      A white iPhone.

4.        The Defendant was arrested and taken to Police Headquarters where he was further searched and a small wrap of Ecstasy in powder form and £78.42 in cash was seized from his wallet.

5.        On a search of his home address the same day, the following items were seized from the Defendant's bedroom:

(i)        A small set of scales and a small roll of cling film;

(ii)       Two clear zip-lock bags containing residual traces of cocaine mixed with creatine;

(iii)      One bag of creatine powder;

(iv)      Two phones;

(v)       A metal grinder;

(vi)      A small knife; with suspected cannabis resin on its surface;

(vii)     Suspected cannabis seeds;

(viii)    £3,906.68 and €95.83, the sterling being mainly in denominations of £20 and £10 notes.

6.        6 of the 7 zip-lock bags seized on his arrest contained cocaine with a total weight of 4.93 grams.  The cocaine was mixed with creatine powder.  The two clear zip-lock bags seized from the Defendant's bedroom contained residue of cocaine and creatine. 

7.        The Defendant pleaded guilty to the charges brought against him with the following basis of plea -

"the Defendant purchased the cocaine on the evening of 14 December 2019.  He was subsequently arrested and found to be in possession of six zip lock plastic bags, each containing on average 0.82 milligrams of cocaine.  Around two-thirds of the cocaine was to be sold by the Defendant to friends at the Jersey street price.  Around one-third was for the Defendant's own use."

8.        The Crown did not accept that basis of plea but at a hearing on 4^th November 2020, Clyde-Smith, Commissioner decided that no Newton hearing was necessary on the basis that there would be no real difference in terms of the Defendant's role and involvement in drug trafficking in having acquired this cocaine, for the admitted purpose of onwards supply, either before or after he went out that night.  Accordingly, the Defendant fell to be sentenced on his basis of plea.

9.        The Solicitor General relied in the confiscation proceedings on a witness statement of Detective Constable James Fowler who was tendered as expert witness regarding current drug prices, trends and how drugs are used and the environments in which they are used.  No objection was taken to Mr Fowler's expertise.  In his expert report, Mr Fowler informed the Court that the recognised single street deal of cocaine is 1 gram and locally the price ranges between £80 - £100 for lower purity and £120 - £150 for cocaine of higher purity.  That is a considerable increase over the prices which would be obtained in the United Kingdom where commonly a gram would fetch £30 - £60.  Extra profit is commonly achieved by selling deals underweight.  In the absence of any information from the Official Analyst regarding the purity of the cocaine seized from the Defendant when he was searched, the expert recommended valuing that seizure at between £480 and £600 in total.

10.      Mr Fowler attested in his report to having examined the bag of creatine monohydrate powder.  He noted that approximately 90 grams of the powder had been used, and that the Defendant had indicated when interviewed that he had the creatine as a water retention aid to reduce the impact of dehydration when at work.  The expert had not heard of creatine being used as a supplement for the purpose of rehydration.  There were other more cost-effective ways of staying hydrated, such as drinking water; and he also said that creatine was commonly used by drug suppliers as a bulking agent for cocaine, due to its appearance and texture.  This enabled a cocaine supplier to produce a product which maximised financial profit.  Mr Fowler also noted that the majority of the cash was in £20 and £10 notes, and he confirmed that these were common denominations expected in drug supply - although the denominations themselves would not on their own support involvement in drug supply, they did give that support when added to the Defendant's vague account during interview and the other evidence suggesting he was involved in the supply of cocaine.

11.      The Defendant's ex-partner, who is the mother of their daughter, provided the States of Jersey Police with a witness statement in which she said that the couple had split approximately 11 years ago following the birth of their daughter.  However, the Defendant had regularly paid her £100 a week towards the support of the child, and if one week he did not have the funds to enable him to make that payment, he would make it up the following week.

12.      The Defendant gave three interviews to the police.  These predated the basis of plea which was submitted later.  He said that he was self-employed and had joint ownership of a business named T&C Fibreglass Ltd.  However, he was currently not able to work, and he was claiming sickness benefits with an injured arm.  When working, his monthly earnings were approximately £1,500, and these were paid monthly by BACS into his local Lloyds bank account.  The Defendant confirmed that he did regularly take cannabis, and that he also used other types of drugs from time to time.  He would use whatever he could afford, and would use it frequently.  He had no recollection of why he was in possession of the seven bags of white powder or where they came from.  He claimed that it could be either MDMA, speed or cocaine, but he was guessing as these would be the drugs which he would normally take.  He agreed that he had sold drugs in the past, but he denied he had any intention to sell the suspected drugs here.

13.      As to the cash that was seized at his home address, the Defendant said that the money located in the drawer in the bedside unit was maintenance money for his daughter.  He paid his ex-partner as and when he could, and this cash should have been paid a few days previously.  The cash located in a safe in his bedroom was his savings account, as he did not like to leave cash in the bank due to his gambling issues.  He explained that he had a gambling habit, and when he was to gamble he would withdraw cash from the bank or from a cashpoint.  He asserted that the money in his home was not the proceeds of crime but had been derived from lawful employment.

14.      There had been a financial analysis of his bank account, the Defendant having signed a bank disclosure authority.  The analysis showed that a monthly wage of approximately £1,200 from T&C Fibreglass Ltd had been paid into the account, with a one-off payment described as a bonus on 22^nd March 2019, in the sum of £9,800.  Since being off work, the Defendant was in receipt of weekly payments from the Jersey Social Security Department, the amount of which varied slightly, but at the later end of 2019, was £222.25.  The main activity on his Lloyds Bank Gold Account was in respect of gambling payments credited and withdrawn.  There was very little evidence of living expenses being withdrawn from the account, other than occasional restaurant payments, a payment to Islands Insurance and some infrequent payments to local shopping retailers.  Cash was withdrawn from the account monthly in variable amounts.  However, over the relevant timeframe of December 2018 to January 2020, £7,100 was withdrawn in cash and £1,800 was deposited in cash. 

15.      The Attorney General's statement reveals a calculation of a total benefit figure of £4,514.17.  This is made up of the cash seizures together with the value of the drugs in question.  The realisable figure was the cash, amounting to a total of £3,994.17.  However, at the hearing, revised figures were given to us by the Solicitor General as a result of which both the realisation figure and the benefit figure amounted to £3,726.68.  Accordingly, the Solicitor General sought a confiscation order in that amount.

16.      Before the Full Court sat, Advocate Haines raised a number of issues before me as a single judge.  The submission was that the Crown's conclusions at the sentencing hearing, the previous convictions, the Social Enquiry Report and the judgment of Commissioner Clyde-Smith should not be available to the Jurats when they considered the confiscation application.  These were prejudicial documents which were not relevant and I should direct the Jurats to have no regard to them.  The only issue for the Jurats to determine was whether some or all of the money which had been seized was the proceeds of drug trafficking on or before 15^th December 2019.  These submissions were made upon the basis that these remained criminal proceedings and the rules of evidence still applied.  Accordingly, details of the convictions and bad character should not be before the Court.  By contrast, the Solicitor General argued that any evidence which goes to the issue of how much of the money was the proceeds of drug dealing on or before 15^th December 2019 is prima facie admissible as supporting the Crown's case.  The Jurats were entitled to take into account that the Defendant has knowledge of drug dealing at street level because he has engaged in this activity before, and the Court can take judicial notice of the fact that he was in possession of 33 grams of cocaine, some of which had been cut and packaged in individual wraps.  That had been the position in 2009, and an inference could be drawn that he was engaged in the same exercise in 2019.

17.      As to the criminal record more generally, the Defendant had put his lifestyle in issue.  He says that he took the money in cash to safeguard himself against his gambling addiction and in order to fund his drug habit.  The Solicitor General submitted that the Jurats therefore needed to hear evidence about his lifestyle and the criminal convictions would demonstrate that drug taking had been part of it.  As to the Social Enquiry Report, the Solicitor General wanted that document before the Court for the explanation given by the Defendant to the Probation Officer about the offence charged in Count 1, which it was said was relevant to an assessment of his credibility.

18.      I noted that all of this material was before the sentencing court and that indeed it was envisaged by the Proceeds of Crime (Jersey) Law 1999 (the "Law") that confiscation and sentence would be dealt with in the same hearing.  Accordingly, it would be artificial to exclude evidence simply because the confiscation hearing had been deferred.  Furthermore, I accepted the submission of the Solicitor General that the evidence was prima facie admissible as supporting the Crown case on confiscation, and in those circumstances it was appropriate to admit it.

The Law

19.      There was no dispute between the Solicitor General and Advocate Haines as to the applicable law.

20.      The Defendant has obtained property - the drugs subject to the charges in the indictment - as a result of his criminal conduct and has, by virtue of that conduct, committed a Schedule 1 offence for the purposes of the Law.  The offences specified in Schedule 1 of the Law are any offence for which a person is liable on conviction to imprisonment for a term of one or more years (whether or not the person is also liable to any other penalty).  Because he has benefitted from that conduct, the court is proceeding to determine the extent of that benefit. 

21.      Article 3 of the  Law deals with confiscation orders and says, at paragraph (3):-

"Where the court is proceeding under this Article, it may first determine whether the defendant has benefitted from any relevant criminal conduct."

22.      Article 5 of the Law provides:-

"5. Confiscation order relating to a course of relevant criminal conduct

.....

(3) The relevant period for the purposes of this Article, in relation to a defendant, is the period of 6 years ending when the proceedings in which this Article applies were instituted against the defendant.

(4) When this Article applies for the purposes of Article 3, the Court may if it thinks fit (but subject to paragraph (6)) make the assumptions in paragraph (5) for the purpose -

(a) of determining whether the defendant has benefited from relevant criminal conduct; and

(b) if the defendant has, of assessing the value of the defendant's benefit from such conduct.

(5) Those assumptions are -

(a) that any property appearing to the Court to be held by the defendant at any time since the date of the defendant's conviction, or appearing to the Court to have been transferred to the defendant at any time since the beginning of the relevant period -

(i) was received by the defendant at the earliest time when he or she appears to the Court to have held it, and

(ii) was received by the defendant as a result of or in connection with the commission of offences specified in Schedule 1;

(b) that any of the defendant's expenditure since the beginning of the relevant period was met out of payments received by the defendant as a result of or in connection with the commission of offences specified in Schedule 1; and

(c) for the purposes of valuing any property that the defendant has or is assumed to have had at any time, that the defendant received the property free of any other interests in it.

(6) The Court shall not make an assumption in paragraph (5) in respect of any particular property or expenditure -

(a) if the assumption, so far as it relates to that property or expenditure, is shown to be incorrect;

(b) if the assumption, so far as it relates to that property or expenditure, is shown to be correct in respect of an offence from which the defendant's benefit has been the subject of a previous confiscation order; or

(c) if the Court is satisfied that, for any other reason, there would be a serious risk of injustice if the assumption were made in respect of that property or expenditure.

(7) Where the assumptions in paragraph (5) are made the offences from which, in accordance with those assumptions, the defendant is found to have benefited shall be treated as if they were comprised, for the purposes of this Part, in the conduct that is to be treated as relevant criminal conduct by the defendant."

23.      In this case, there is no dispute that the Defendant has benefitted from criminal conduct, nor is there any dispute as to the amount of recoverable property.  The dispute surrounds the quantification of the Defendant's benefit from criminal conduct.  The Court may, under Article 5(4) and (5) of the Law apply the assumptions there set out for the purposes of making that assessment.  The burden lies on the Defendant to satisfy the Court that the assumptions are wrong, if the Court is not to apply them.

The evidence

24.      The Court heard from DC Fowler who confirmed the content of his report.  We were shown the scales, zip lock bags and creatine.  The scales were of a size which suggested they would not be of use for any common legitimate purpose, but we note that they would be potentially useful for a drug user to check the weight of drugs he had acquired on purchase - similarly a drug trafficker to check the weight of drugs he was selling.  Mr Fowler told us that creatine was a typical agent used by street dealers for bulking out the drugs being sold, but that there were also many legitimate reasons, mostly connected with training and gymnastics.  A user would not normally adulterate his own drug supply.  He had never come across this.  In cross-examination he agreed that analysis of telephone data was often useful in prosecutions for drug offences, and no such telephone data was available in this case.  In his view, deal lists were not as common as they used to be.  Text messages are more common and he anticipated that he would have been given any relevant materials, had they been available.  He also noted that there were no unused deal bags.  These last two points did therefore to some degree militate in favour of the Defendant.

25.      The Crown then called Ms Amy McAllister, an Executive Officer with Customs and Immigration.  She had been responsible for preparing the Attorney General's statement which was based upon the evidence she had read in the case.  She confirmed that of the total sum of cash found on the Defendant's premises, the figure the Crown now sought to confiscate was reduced by £700 on the basis that seven £100 notes were among the cash found and it was accepted by the Crown that this represented money made available to the Defendant by his father, and was not the proceeds of drug trafficking.  Ms McAllister took the Court through a spreadsheet showing the movements of money in and out of the bank account of the Defendant.  From this it could be seen that over the relevant period £22,700 had been credited to the account and £25,220.49 removed from it.  Ms McAllister accepted that the Defendant paid £100 per week by way of child maintenance in cash on a fairly regular basis.

26.      The Defendant gave evidence.  He was living at home with his parents in 2019 and had his own room.  It was not kept locked, and there was a safe on a chair behind the door.  He had a twelve year old daughter.  He had had an operation on his arm towards the end of November 2019 and had had been employed up to then, although he had had time off work during the year as a result of an injury sustained.  He had no regular income apart from his salary and social security payments.

27.      He was a regular gambler, and used four internet gambling organisations.  Money always had to be paid upfront.  He told us that he did not normally lose £12,000 over the course of a year, but his gambling had gone up because he was off work.  He said that his mother had been sixty in April 2019, and he described how he had arranged a birthday party for her.  Some of the cash movements in his bank account reflected the cost of the meal and the recovery of that cost from those attending the party, all of whom appear to have repaid him in cash at £35 a head.

28.      His evidence was that if he had had spare money in his bank account, he would gamble with it.  As he put it, you cannot gamble what you do not have. 

29.      He had suffered an injury in April 2019 and was off work in May and June.  He had had to take more time off in September.  He did not pay rent to his parents, and had no credit cards and no life insurance.  On the whole, his mother bought food for the household, although he would shop for his parents perhaps once a month.  Otherwise he made no contribution towards the cost of utilities.  His regular outgoings were for car insurance, tobacco, sandwiches for lunch and an occasional coffee.

30.      As to the drug paraphernalia, he used the metal grinder to break up herbal cannabis; and this no doubt explained also the cannabis resin on the blade of the knife.  He used the scales to weigh cannabis which he took.  The reason for the zip lock bags was that he had bought these for the consumption of his own drugs.  He explained how in the fibre glass business, he has to wear protective equipment particularly when the top layer of fibre glass has to be removed.  It is very hot to wear in the summer and he said that he took creatine in water to help him avoid dehydration.  He said he did not know anything about using creatine to bulk out cocaine.

31.      Under cross-examination he was asked about a passage in his question and answer interview which started with questions about the scales found in his bedroom:-

"CT:    You gave me them last time.

358:    It's not to do with dealing?

CT:     No.  The scales, you gave me them when I came out of prison last time.

358:    Right.

CT:     They're the same scales I got arrested for.

358:    We typically don't give people scales but you must have gone in with them.

CT:     That, er, you [indistinct].

358:    Must have had them from you and given them back, right?

CT:     ..You, you go the prison and La Moye Prison and you see what they gave me when I left.

358:    Er scales.

CT:     The scales.  No it was £3,500 cash.

358:    Yeah.

CT:     Which technically I could say is the cash that's in the safe but it's not.

358:    Mmm.

CT:     But, yeah, that's the amount of money they gave you in cash, scales.  But what I found really, really, really horrible was the way that you guys released me after I got arrested without a penny.  That was not nice.

358:    Without, what.

CT:     Without one penny.

358:    Without a penny.

CT:     Yeah, they took every penny out of the urm ashtrays.

358:    Yeah.

CT:     You know ok.  I go out there, thank fuck I've got my mum and dad.

358:    Um.

CT:     If I didn't what would I have to, I would have to go out and deal drugs, wouldn't I?

358.    Yeah. Well....

CT:     You're, you're sort of like putting me in that position.

358:    Well we don't want you to do that.

CT:     Yeah.  But that's what you did."

32.      The suggestion from the Solicitor General was that in this section of the interview the Defendant was saying that he would deal in drugs.  His response in evidence was that he was not saying that - he did not mean that he would deal in drugs.  He was saying that that was what he was being pushed to do.

33.      When asked about the prosecution summary of the offence, he agreed that anything over two grams of cocaine was a commercial amount.  He said he had cut the drugs not for more profit but so that he could have some for himself.  He bought the cocaine bags mixed with creatine.  It was only coincidence that this was similar to the arrangements that had been made by him in 2009.  However, he added that although it seemed like a coincidence, "that's how drugs are sold".

34.      He told us that he was extremely drunk on his arrest and he did not know that he had snorted anything, let alone what it was.  When he purchased the drugs, he was so drunk he did not know what he had bought.  He denied being a regular drug user until September 2019. 

35.      In re-examination he reaffirmed that the cash found in the drawer in his bedroom was for maintenance.  He had a gambling addiction which had a terrible impact on his life. 

The submissions

36.      The Solicitor General submitted that most of the cash represented the proceeds of historic crime which the Court could assume the Defendant had committed.  For that submission, he relied upon:-

(i)        The wraps containing cocaine diluted with creatine, used to bulk up the drug to uplift profit.  It was wrapped in a convenient manner.

(ii)       The zip lock bags were similar to those found in his bedroom on arrest - the remains of wraps which fit the profile for street dealing.  The police also found a bag of part used creatine from which the Court could draw an obvious conclusion - drug users did not skimp on the quality of their own consumption.  Dealers however would do so.

(iii)      There were the weighing scales and the cling film, for which the Defendant had no convincing explanation.  The Crown contention was that the Defendant lied through his teeth.

37.      The Defendant had twice been convicted of possession with intent to supply.  He had the paraphernalia for drug dealing in his house.  It was an extraordinary coincidence that it was exactly the same position today that existed in 2009, and both were consistent with drug dealing.

38.      The analysis of the Gold Account shows that only on one occasion did the Defendant go overdrawn, and this despite his apparent profligacy with gambling addiction.  We were invited to conclude that preserving money from gambling by keeping cash in his bedroom was not remotely credible.

39.      Advocate Haines submitted that there was no dispute as to the law.  He agreed that the Defendant had benefitted from criminal conduct because he had drugs to the value of £520.  However, he submitted that the realisation figure ought to be the same amount and a confiscation order made in that amount only.  The Court should find proved on the balance of probabilities that the cash which had been found in the Defendant's bedroom was not the proceeds of criminal conduct. 

40.      Advocate Haines reminded us that there was no telecommunications data; no deal lists; no clean bags; no cocaine on the premises, and so no evidence of any regular supply.  These were the key features.

41.      He took us through the bank accounts.  The Court should not be harsh on the Defendant because he had a gambling addiction.  Those who suffered from such addictions did not always act rationally.  The bank statements proved that he did have an addiction and he lost money because he had the money to lose from his employment.

42.      The Defendant's last previous conviction for drug dealing was in 2009, eleven years ago.  Advocate Haines submitted that he had moved on.  He suggested that we should test all of the assumptions in relation to each individual asset described in the Attorney General's statement and asked us to make a confiscation order, as we have indicated, in the sum of £520.

Decision

43.      Noting that the result of the assumptions which the law requires us to make is that a confiscation order should be made unless the Defendant satisfies us on the balance of probability that the cash in his bedroom was not the proceeds of criminal conduct, the Court was really faced with the question as to whether the Defendant's explanation was accepted. 

44.      On the balance of probabilities, we did not accept that explanation.  We agree that the evidence points in the direction of the Defendant having a gambling addiction, but we did not accept the evidence which the Defendant gave in relation to the existence of drug paraphernalia on the premises.  In particular, we did not accept the explanation for the creatine which was found, which in our view was on the balance of probabilities used by the Defendant for bulking out the cocaine which he had acquired for the purposes of trafficking in it.  This may not have been on a large scale but it did have the consequence that the cash found, in our view, represented the proceeds of criminal conduct and the defendant had not persuaded us otherwise.

45.      In those circumstances, the Court considered that the total realisation figure should be set at £3,726.68, as moved for by the Crown.

46.      The confiscation order is made accordingly.

Authorities

AG v Teixeria [2021] JRC 016. 

Proceeds of Crime (Jersey) Law 1999