Jersey Unreported Judgments

Superior Sentencing Number - drugs - conspiracy to commit a statutory offence, importation, possession. - reasons

[2022]JRC009

Royal Court

(Samedi)

18 January 2022

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden, Averty and Hughes.

 

Crown Advocate R. C. P. Pedley for HM Attorney General. 

Advocate G. N. A. Pearce for the First Defendant. 

Advocate J. C. Gollop for the Second Defendant. 

judgment

the deputy bailiff:

1.        On 5^th January 2022 both Defendants were sentenced to a total of 3 years imprisonment.  We gave brief reasons for our decision with written reasons to follow. 

2.        The Defendants are both aged 31.  Both are, in the opinion of the Court, professional drug dealers or at least were when committing these offences.  They met in prison in 2015 when Whitcombe was serving a 6 year sentence for importing various drugs into the Island, including cannabis, and Dryden was serving a sentence of 2 years and 9 months imprisonment for possession with intent to supply of two kilos of a Class B drug, namely mephedrone. 

3.        The pre-sentence reports indicated that both Defendants were fully aware of the legislation in relation to drug trafficking when they committed these offences. 

4.        Count 1 on the indictment covered a period of approximately 10 months when the Defendants conspired with others to arrange four substantial importations of cannabis resin.  In three instances, the quantity of drugs can be identified with precision from the recovered mobile telephone communications and the total quantity of cannabis resin imported was 3.1 kilograms.  The fourth importation involved a further amount which cannot be identified but is estimated by the police evidence, whose evidence we accept, as between 500 grams and 1 kilogram.  Dryden, who was involved in receipt of the fourth importation, indicated through his counsel he did not challenge the prosecution's summary of facts which is strong evidence in support of the Crown's assessment as to the size of the fourth importation.  Whitcombe's involvement in the fourth and final importation was more limited as he had said that he was handing over the UK end of the joint enterprise to a third party but has accepted that absent his involvement in the fourth importation it would not have occurred.  Accordingly, the minimum quantity of cannabis imported was in the region of 3.6 kilograms with the lowest street value of this quantity of drugs being £54,000. 

5.        Count 2 of the indictment covered the export by Dryden to Whitcombe on three occasions of criminal property, namely cash, from Jersey to a total value of £16,750. 

6.        The broad shape of the conspiracy was that Dryden, whilst based in Jersey, and Whitcombe, whilst based in Merseyside, arranged for packages to be sent from an address in England to an address of a third party in Jersey.  Both Defendants were sure to avoid direct contact with the export or import of the cannabis.  Whitcombe instructed others in the United Kingdom to package and organise the delivery, telling Dryden that he was "miles away" from those who sent the drugs to the Island.  Dryden distanced himself from the importation, making sure that the packages were received by Carl Powell at his work address in Jersey, labelled as tools of some sort.  Powell left the Island before he could be prosecuted for his involvement in this offence.  In this way, both Defendants managed to separate themselves from the export and import of drugs so as, they thought, to eliminate their risk of identification and arrest. 

7.        The system ran smoothly until September 2018, when by chance drugs sent to Powell were intercepted by officers of the Customs and Immigration Service.  Powell was arrested but his arrest did not lead to the identification of these two Defendants.  Powell left the Island in April 2019 and subsequently Dryden replaced Powell with another third party, Czarnecki, and in June 2019 a parcel of 472 grams of cannabis (Count 3) destined for Czarnecki was intercepted by Customs, leading to his arrest. 

8.        The seizure of Czarnecki's mobile telephone led to the discovery of messages to and from Dryden regarding the importation of cannabis, and Dryden was arrested in July 2019 when his mobile telephone was seized.  Analysis of this phone showed that the Defendants had communicated with each other using a secure application called "Signal" and the communications evidenced a conspiracy between the two Defendants and others not before the Court.  Dryden did not provide the police with his pin number or other assistance in accessing his telephone. 

9.        Nonetheless, the communications recovered revealed that Whitcombe had access to the "highest grade" cannabis (in his words) and both discussed the quality of the cannabis that was being imported and the proportions in which the drug imported was represented by better and poorer quality cannabis.  Both men knew the wholesale and retail prices of the drugs that they conspired to import with precision and both men, as exporters and importers (Whitcombe in particular) were high in the chain of supply and distribution.  Whitcombe, as we have said, successfully distanced himself from any involvement with the export of the drugs and Dryden distanced himself from the importation, also engaging Powell to sell much of the cannabis on his behalf and collect the cash that he would export back to Whitcombe. 

10.      In respect of Count 2, Dryden arranged the three exports of cash to three separate UK addresses, with Dryden sending a Jersey Post receipt to Whitcombe confirming the parcel was on its way. 

11.      The communications between the Defendants showed not merely their knowledge and understanding of the process of money laundering but include discussions as to the best way to launder the proceeds of crime.  In July 2018 Whitcombe advised Dryden to use different cards, create a company and pretend to set up a business.  When Dryden asked what he should be selling, Whitcombe advised "Your time, that's the easiest thing to blag.  Personal training or something similar.  Online computer maintenance."  Whitcombe warned Dryden against the latter's suggestion for laundering money through car sales owing to the standard of record keeping at the DVLA.  Whitcombe advised Dryden ""Yeah, I sold cars" is a quick way to get hammered for money laundering and then arrested for drug dealing."  Whitcombe went on to advise Dryden that he should find something that he was interested in and when he had done so "You get to clean your money and you'll slowly get better at it and eventually it'll be your legit business." 

12.      We regarded the two Defendants as not merely professional drug dealers, but also skilled money launderers. 

13.      The cannabis resin at Count 3 had an estimated street value of between £6,750 and £9,000 and Count 4 related to the possession to a small amount of cannabis (15 grams) found at Dryden's home when he was arrested.  

14.      There was then a delay in the prosecution of this case which the Crown explained as follows. 

15.      Once Dryden's mobile telephone had been analysed, Customs and Immigration requested advice from the Law Officers' Department in November 2019.  At that stage the police were looking at four individuals.  The matter was reviewed by the Law Officers' Department in January and June 2020 and reallocated to UK counsel for further advice in September 2020.  Advice was given to Customs and Immigration on 1 April 2021 and the Attorney General consented to charge on 28 April 2021.  As to the time that it took matters to progress, the telephone download needed to be analysed with care and it took some time to identify "TC" (how Whitcombe was stored on Dryden's phone) as Whitcombe.  There was also some delay caused by the public health crisis. 

16.      Even allowing for the fact that it is reasonable for the prosecuting authorities to spend some months investigating these matters, seeking advice, considering that advice and dealing with the complexities presented by telephone evidence, we took the view that there was unexplained delay for which no adequate reason was given in this case of, cumulatively, approximately one year.  Although no particular consequential prejudice was advanced on behalf of the Defendants, we did take into account that delay when imposing sentence and reduced the Crown's conclusions accordingly. 

17.      When arrested and interviewed in July 2021, Dryden made no comment.  Whitcombe was not interviewed as he was brought back to Jersey on warrant. 

18.      Both Defendants were given full credit for their guilty pleas.  There is little additional mitigation available to them in view of their records and the circumstances of these offences, but we take into account the charitable and other work done by Whitcombe in the intervening period and the references and other mitigation urged upon us for both Defendants. 

19.      We agree with the Crown that Whitcombe was easily able to source top quality cannabis from his associates in England.  He provided three different addresses for Dryden to send the proceeds of the conspiracy.  He was able to provide Dryden with the details of a new supplier in 2019 and together they ran a professional, successful and sophisticated operation.  As to Dryden, not only did he ensure the safe arrival of the drugs in Jersey by providing trusted postal addresses, but he organised Powell to take delivery, providing a false description of the parcel contents for Whitcombe's associates to put on the labels so as not to raise suspicion at Powell's workplace, liaised with Powell and Whitcombe to confirm when the packages had arrived and maintained a healthy customer base in Jersey selling the drugs at an agreed price, and subsequently collated the cash received by him and Powell on his behalf, packaging thousands of pounds in cash and posting it back to the UK. 

20.      Counsel for Dryden did not challenge the starting points moved for by the Crown - 3½ years at Count 1 and 3 years at Count 2.  Counsel for Whitcombe did not challenge the Crown's starting point at Count 2 but said the starting point at Count 1 should have been shorter - in the region of three years imprisonment. 

21.      Having regard to the amounts of cannabis imported and the involvement of both Defendants in the conspiracy at Count 1 and, having regard to the principles in Campbell -v- AG [1995] JLR 136, noting that the starting point for offences involving between 1 and 10 kilograms of cannabis is between 2 and 6 years imprisonment and noting the starting point recently selected by the Superior Number in AG -v- Hagin [2020] JRC 176 (5 years in the context of the importation of 4.4 kilograms of cannabis) we agreed that the Crown's starting point of 3½ years at Count 1 was appropriate.

22.      In AG -v- Hagin we note that the Crown adopted a starting point of 5 years for the money laundering offences, which involved the removal of cash on six occasions, each instance concerning between £10,000 and £11,000, except one instance which involved just less than £2,000. 

23.      The starting point of 3 years for the offence at Count 2 is certainly warranted in this case.  We agree that overall both Defendants were equally culpable and the same starting points should apply to each. 

24.      Both defence counsel argued that the sentences to be imposed at Counts 1 and 2 should be concurrent.  They drew our attention to AG-v- Safapour [2020] JRC 003, where MDMA was imported (starting point 9 years imprisonment), cannabis was supplied and £3,900 was paid into a bank account which represented an offence under Article 30 of the Proceeds of Crime (Jersey) Law.  The Court held that on the facts of that case the money laundering offence should be subject to a concurrent sentence to the other counts on the indictment (importation of MDMA, importation of cannabis, being concerned in the supply of MDMA, and being concerned in the supply of cannabis and possession of a Class C drug) to which the defendant had pleaded guilty. 

25.      At paragraph 16, the Court said: 

"While the money laundering offence is a separate offence from the drug trafficking, there would, in our view, be too great an element of double counting to make it proportionate to sentence it separately or to increase the starting point on the drugs offence.  The factual circumstances are quite different from those which appertained in Hole." [2018] JRC 062A

26.      Every case is fact specific and although the proceeds of crime exported in cash in this case derived from the drugs the subject of the conspiracy at Count 1, in our view a consecutive sentence was warranted.  When sentencing for more than one offence, the court should pass a total sentence which reflects all the offending behaviour and a sentence which is just and proportionate, as was recognised by the Royal Court in Safapour.  We note from the helpful guidance from the Sentencing Council (which of course is not binding in this jurisdiction) that "There is no inflexible rule governing whether sentences should be constructed as concurrent or consecutive components.  The overriding principle is that the overall sentence must be just and proportionate."

27.      In this case, we were satisfied that the overall criminality of these two Defendants would not be sufficiently reflected by a sentence of two years imprisonment which was the sentence which we decided was appropriate, having regard to all the circumstances, on Count 1.  Furthermore, we were of the view that such a sentence insufficiently reflected the substantial additional criminality in this case which arose from the offence of money laundering as particularised above. 

28.      Further, we did not think that such approach was required having regard to the leading case of AG -v- Goodwin [2016] JRC 165 in which the Superior Number adopted the following principles: 

"4.      Money laundering is a serious offence which, by virtue of the Drug Trafficking Offences (Jersey) Law 1988 ("the Law"), carries a potential sentence of 14 years' imprisonment or an unlimited fine.  This Court has previously had regard to the English authority of R v Monfries [2004] 2 Cr. App. R.(S) 3, in which the English Court of Appeal set out a number of principles:-

(i)         There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence when considering the appropriate sentence for the laundering offence. 

(ii)        The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct. 

(iii)       Regard should be had to the extent of the launderer's knowledge of the antecedent offence. 

(iv)       The amount of money laundered is a relevant factor. 

                          5.      In AG v Gomes and others [2007] JRC 129, the Court indicated that in addition to these principles, regard should be had to the period of time during which the money laundering occurs. 

                          6.      In Bhojwani v AG [2011] JCA 034, the following principles were added:-

(i)         No distinction is to be drawn as a matter of law between the laundering of one's own proceeds of crime and the proceeds of crime committed by third parties.

                                  (ii)     A professional money laundering service is not necessarily more serious than laundering the proceeds of a one off fraud - it may be so, but each case will depend on its own facts.

                                  (iii)    The interests of Jersey as a finance centre justified an element of deterrence in the sentence.

                          7.      In AG v Bhojwani [2010] JRC 116, the Royal Court had held that the duration, sophistication and scale of money laundering are also relevant considerations."

29.      We note from the principles set out at paragraph 4(i) of the judgment of the Superior Number in Goodwin that although the court should have "some regard" to the sentence that has been imposed for the "original antecedent offence" it is not suggested (nor sensibly could it be in our view) that even if there is a direct relationship between the laundering offence and the antecedent offence, which there is in this case, that the sentence for the money laundering offence should necessarily be a concurrent one.  That is not the approach suggested by Goodwin and is not, in our view, warranted on the facts of this case.  Although in this case the antecedent offence was drug trafficking, the money laundering activities were crucial to the funding of the continuing criminal conspiracy between the two Defendants and others.  Both participants had extensive knowledge of the predicate offence.  We had regard to the amount of money involved and the duration and sophistication of the money laundering operation, highlighted by the contents of the communications between the two Defendants.  Money laundering is a serious offence in its own right and where there is, as in this case, evidence of sophistication or substantial duration of offending then, in our view, it will be just, proportionate and indeed necessary for the sentence imposed to be a consecutive one notwithstanding the connection with the predicate offence. 

30.      Having regard to these considerations, we had no doubt that it was appropriate to impose a consecutive sentence for the offence at Count 2.  Furthermore, had the money laundering charge stood alone, then we would have undoubtedly imposed a longer sentence than the sentence moved for by the Crown (12 months imprisonment), but we had regard to the principle of totality when determining the appropriate consecutive sentence for money laundering. 

31.      As urged by defence counsel, we gave full credit for the Defendants' guilty pleas, took into account not only the mitigation advanced by both Defendants but also the delay in the investigation which enabled us to reduce the Crown's conclusions on Count 1 from 2½ years to 2 years.  Accordingly, the Defendants were sentenced as follows: 

(i)        Count 1 - both Defendants 2 years imprisonment;

(ii)       Count 2 - both Defendants 1 year imprisonment consecutive;

(iii)      Count 3 - Dryden 6 months imprisonment consecutive to Count 1 but concurrent to Count 2;

(iv)      Count 4 - Dryden 1 month imprisonment concurrent. 

32.      We also ordered destruction and forfeiture of the drugs and, as requested, adjourned the confiscation hearing. 

Authorities

Campbell-v-AG [1995] JLR 136.

AG v-Hagin [2020] JRC 176.

AG-v-Safapour [2020] JRC 003.

Proceeds of Crime (Jersey) Law.

AG v Hole, Rice and Rodrigues [2018] JRC 062A.

AG-v-Goodwin [2016] JRC 165.