Jersey Unreported Judgments

Superior Number Sentencing - drugs - supply - possession - importation. Class A, B and C - reasons for the sentence imposed.

[2022]JRC102

Royal Court

(Samedi)

4 May 2022

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Ronge, Averty and Hughes

The Attorney General

-v-

Stephen Graham Ferguson

David John Morgan

David John Saunders

M. R. Maletroit Esq., Crown Advocate.

Advocate A. E. Binnie for Defendant Ferguson.

Advocate F. L. Pinel for Defendant Morgan.

Advocate I. C. Jones for Defendant Saunders.

JUDGMENT

THE BAILIFF:

Introduction

1.        On 10^th March 2022, Stephen Graham Ferguson ("Ferguson"), David John Morgan ("Morgan") and David John Saunders ("Saunders") appeared before this Court to be sentenced for, between them, 7 counts related to drugs or drug trafficking.

2.        At Count 1 on the Indictment Ferguson, Morgan and Saunders were charged with conspiracy to supply cocaine contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 ("the Law") and, at Count 2, with entering into or becoming concerned with an arrangement to facilitate the acquisition, use, possession, or control of criminal property pursuant to Article 30(3) of the Proceeds of Crime (Jersey) Law 1999 ("POCL").

3.        Ferguson was charged at Count 3, with possession of a controlled drug contrary to Article 8(1) of the Law, specifically cannabis, and at Count 4, possession of a controlled drug contrary to Article 8(1) of the Law, specifically cocaine, and, in Count 5, a further charge of possession of cannabis pursuant to 8(1) of the Law.

4.        Morgan was charged at Count 6, with being concerned in the importation of cannabis contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.

5.        Saunders was charged at Count 7, with an offence under the same statutory provision with regard to diazepam.

6.        Having dealt with the confiscation aspect of this matter, which was not opposed, the sentences the Court imposed were as follows:-

Ferguson

Count 1 - from a starting point of 14 years imprisonment, 9 years and 4 months imprisonment.

Count 2 - from a starting point of 6 years imprisonment - 4 years imprisonment concurrent.

Count 3 - one month's imprisonment concurrent

Count 4 - three months imprisonment concurrent

Count 5 - one month's imprisonment concurrent

making a total of 9 years and 4 months imprisonment.

Morgan

Count 1 - from a starting point of 14 years imprisonment, 9 years and 4 months imprisonment.

Count 2 - from a starting point of 6 years imprisonment - 4 years imprisonment concurrent.

Count 6 - 3 months imprisonment concurrent

making a total of 9 years and 4 months imprisonment.

Saunders

Count 1 - from a starting point of 14 years imprisonment, 9 years and 4 months imprisonment

Count 2 - from a starting point of 6 years imprisonment - 4 years imprisonment concurrent

Count 7 - 2 weeks imprisonment concurrent

making a total of 9 years and 4 months imprisonment.

7.        On that occasion, the Court said that it would give reasons for its decision on a later occasion.  These are those reasons.

Background

8.        The prosecution in this case arises out of a lengthy investigation by the Jersey Customs and Immigration Service which had, for its aim, the identification of persons responsible for arranging the importation of commercial quantities of cocaine.  That cocaine was concealed internally and imported into the island by drugs couriers.

9.        Count 1 reflected the fact that between 30^th September 2019 and 9^th August 2020, the Defendants had conspired together with others unknown to supply cocaine.  The evidence demonstrated the Defendants' involvement in arranging at least 3 separate importations of cocaine, in respect of which couriers have already been convicted and sentenced to terms of imprisonment.

10.      The first importation took place on 16^th November 2019, when one Lewis Shepherd was stopped on arrival at Jersey Airport with five packages concealed internally.  The packages contained cocaine, the combined weight of which was 136.91 grams and a purity from 32% to 41%.  The approximate street value of that cocaine, without any adulteration, was £11,000 - £13,700.  Shepherd admitted to knowing of the importation of the cocaine telling investigators "I have done it every two weeks".  He received a sentence of 7 years imprisonment.

11.      The second importation took place on 5^th March 2020, when Kaylene Carragher was stopped at Jersey Airport with three packages concealed internally.  They contained cocaine with a combined weight of 82.4 grams and a purity ranging between 41% - 42% and an approximate street value of £6,500 - £8,100 without adulteration.  Carragher received a sentence of 4 years imprisonment.

12.      The third importation took place on 8^th August 2020 when Kelly Robertson (Ferguson's cousin) was stopped at Jersey Airport having arrived from Liverpool.  She had three packages concealed internally with a combined weight of 67.09 grams and a purity between 54% - 59%.  The street value was £9,100 without adulteration.  One of the discharges also contained 4.7 grams of herbal cannabis.  Robertson received a sentence of 4½ years imprisonment.

13.      It is not necessary in this judgment to go through the details of the evidence linking the Defendants in this case with the three importations.  We are satisfied that each had a substantial involvement in the enterprise in general although it was accepted that there was another person or persons further up the chain of supply who had made the drugs available for internal concealment.  The Defendants however, sourced the couriers and made the arrangements for the importations at the Jersey end.

14.      On 9^th November 2019, Morgan and Saunders had travelled from Poole to Jersey by ferry.  Although they disembarked separately, they were both spoken to by Customs Officers.  Swabs taken from Saunders' mobile phone and the interior of Morgan's suitcase returned positive readings for traces of cocaine.  Nothing further was found and they were allowed to proceed.  On his return the following day, Saunders was stopped and £6,000 was seized.  He offered a false explanation for possessing that amount of cash.  Following the various importations mentioned above, a number of searches were carried out at Ferguson's home address and a number of items were seized including a quantity of cocaine (Count 4), herbal cannabis (Count 5) and a number of items associated with drugs.  Further sums of cash were also found.

15.      The ongoing drug trafficking activities generated cash that needed to be moved to the UK from where the drugs were sourced.  All of the Defendants were involved in the money laundering arrangement and there is evidence of phone contact and discussions of how money might be taken to England.

16.      The drug trafficking expert report indicated that if the cocaine had been adulterated to typical street purity it would have had a street value of approximately £58,800 - £82,320.  Creatine, often used as a bulking agent had been found during the search of Ferguson's home address.

17.      All three Defendants were interviewed under caution and all denied any involvement in the importation of drugs or the money laundering offence.

18.      On 1^st October 2021, the Defendants were indicted and all entered guilty pleas.  Morgan entered his plea on the basis that there would be a basis of plea provided but opted not to and accordingly all three are to be sentenced on the Crown's version of events.

The Crown's conclusions

19.      The Crown's approach to sentencing was to assess a sentence for the conspiracy count (Count 1), as the predicate offence, and to impose a concurrent sentence for the money laundering count (Count 2).  The seriousness of the money laundering and its difference from the predicate offence would be reflected in an increase in the starting point for Count 1.  We agreed with the Crown's approach.

20.      None of the Defendants demurred from this approach although they all took issue as to the starting point and the appropriate discounts available for mitigation.

21.      The Defendants argued against both the starting point assessed by the Crown and the appropriate deductions that the Crown may have suggested by way of mitigation.  We pause at this point to make clear that to the extent that the Crown has explained precisely how it reached the sentence that it recommends to this Court it is of course open to Defendants to criticise that approach or the amount allowed against any particular feature leading to it.  Nonetheless, it is entirely open to this Court to depart from the sentence moved for by the Crown either upwards or downwards.  In terms of an overly analytical approach as to precisely what might be allowed in certain respects, we also repeat the oft stated principle that sentencing is an art and not a science.  It is for this Court to assess the appropriate sentence applying the correct principles.

22.      With regard to the drug trafficking offending the Crown put before us the case of Rimmer v AG [2001] JLR 373 and submitted that the sentencing guidelines indicated a starting point of 11 - 14 years imprisonment for quantities between 250 - 400 grams.  The Crown indicated that 297 grams of cocaine had been seized in respect of three importations referred to above and whilst there was evidence that the conspiracy concerned the supply of greater quantities of cocaine than had been seized and there were other importations that went undetected, those were of an unknown quantity and the Crown used the starting point range of 11 - 14 years to reflect the amounts that were known.

23.      The Crown specified the role of each of the individuals and characterised them as the principals in this drug operation exercise each of them playing a "pivotal role".  In terms of this jurisdiction, there is no doubt that these three Defendants were the principals and each did indeed play a pivotal role.

24.      Ferguson appears to have dealt with the receipt of the drugs following importation and onward distribution into the market.  Various quantities of cash and drugs paraphernalia including a bulking agent were found in his home address and drugs wrappings were found in the boot of his car.  He was also heavily involved in the collection and laundering of the proceeds of drugs sales.

25.      Morgan and Saunders on the other hand were responsible for organising the importations, recruiting, and liaising with the couriers in preparation for importation and arranging for their travel to Jersey.  Evidence links and demonstrates their involvement in handling the drugs before they were concealed internally and also that they were involved in the laundering of the proceeds of the drug trafficking operation.

26.      Taking all of the factors into account, specifically the quantity, the degree of involvement of the Defendants and an enhancement to the starting point to reflect the gravamen of the money laundering offending the Crown adopted a starting point of 14 years imprisonment in respect of each Defendant.

27.      As we have indicated, separate consideration was given by the Crown to money laundering.  In AG v Brennan [2016] JRC 234 the Court said:

"3.        Unlawful activity such as, for example, dealing in drugs, cannot thrive unless individuals are prepared to assist in channelling the criminal process 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."

28.      The Court's approach to money laundering offences was considered in AG v Goodwin [2016] JRC 165 in which the Court identified a number of principles applicable to such cases as follows:-

(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.

(v)       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.

(vi)      The duration, sophistication and scale of money laundering are also relevant considerations.

29.      It is clear in the instant case that the predicate offence is the conspiracy to traffic drugs and that the Defendants in question had full knowledge of the predicate offence.

30.      It is also clear that there was a substantial amount of money that was subject to the money laundering exercise and indeed the police drugs expert, as we have indicated, opined that the cocaine which had been seized had a street value of up to £82,320.00.  It is also fair to say that the money laundering activities took place over a significant period.

31.      A number of other cases were put before us but we mention only AG v Hole, Rice and Rodrigues [2018] JRC 062A in which the Court, with regard to the principles in Valler v AG [2002] JLR 383 applied an uplift to the starting point for the drugs sentences and made the following comment:

"We think that there must be an additional Valler uplift to reflect the money laundering offences.  This was a separate offence ..... we think it would be wrong for there to be no additional penalty for the fact that he was going to carry this substantial amount of money back to the UK.  Dealing with the proceeds of drug trafficking or the purchase price of drug trafficking is an essential part of the drug trafficking network and those who get involved in money laundering offences must expect to be punished for it.  We think that an additional year is appropriate for that."

32.      With regard to antecedents, Ferguson has 13 previous convictions for 22 offences including those relating to drugs.  This present appearance, however, is the first time that he is before a Court for commercial drugs trafficking.  He has the benefit of an early guilty plea and the pre-sentencing report points to his difficult upbringing and background and his expressions of remorse.  He is assessed as posing a high risk of reconviction within the next 12 months.

33.      Morgan has previous convictions but they are historic and this is his first conviction for a drug trafficking offence.  He too, has the benefit of an early guilty plea and the pre-sentencing report indicates that Morgan accepted that he became involved in the enterprise because he wanted to make "easy money".  He also, has expressed remorse and is assessed as being of a moderate risk of reconviction.

34.      Saunders has nine previous convictions for 16 offences but this is his first conviction for a drugs trafficking offence.  He too has the benefit of an early guilty plea and the pre-sentencing report also notes his troubled upbringing and financial troubles. 

35.      It was argued before us that the Court should allow a full one-third deduction to reflect the pleas of guilty offered in this case.  The Crown had approached the matter that there should be a significant allowance but not the full one-third reflecting, in the Crown's view, the fact that the evidence in this matter was strong.  The Crown put before us the case of Carter -v- AG (Court of Appeal 28th September 1994 Unreported) which contained the following: 

"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 Clarke and again in Wood v Attorney General ... this Court made a deduction of one-third for the plea of guilty.  We accept that such a reduction is customary and in line with well-established principle.  Nonetheless we take the view that such a reduction is 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."

36.      The Crown accepted, as do we, that the Defendants guilty pleas in this case were valuable in that they avoided a trial.  The Crown also points out however, that the evidence against the Defendants was strong and the Crown had not applied a full one-third although the deduction it had applied was substantial.

37.      Counsel for Saunders argued that the guilty pleas in this case had not only avoided a trial but that, these things being unpredictable, it may well be that a conviction after trial would not have ensued.  He contrasted the pleas in this case with, for example pleas where someone was caught with drugs internally concealed on their person in which case it was difficult to think that anything other than a guilty plea would follow.  He appeared to draw a distinction between such extreme cases (though all too common on the one part) and any case where there could be any element of doubt or defence which should, he argued, attract a full one-third discount.

38.      We do not agree.  In our judgment the matter of an appropriate discount for a guilty plea is not susceptible to such a hard and fast rule.  In some cases it will be clear that a full one-third is entirely merited, in others it may be equally clear that it should less than one-third because of the inevitability of the conviction.  That being said, there are clearly cases that fall within those two positions in which the Court might choose to make an assessment as to the value of the plea in a particular case.

39.      It was argued for Ferguson that the starting point in so far as it was derived from Rimmer was too high.  The Crown had based its calculation on 297.4 grams whereas the simple addition of the amounts claimed amounted to some 11.27 grams less.  This, so it was argued, must contain with it a value in terms in time and therefore on any analysis the starting point, so far it was based on the amount of drugs seized was inaccurate.  This Argument was adopted by counsel for Morgan and Saunders.

40.      We do not agree.  As we have indicated above, sentencing is not a precise science and the range applicable for any of the amounts set in Rimmer or indeed in other guideline cases is simply that, a range.  It is not a matter of dividing time units within that range and allocating them precisely depending upon the quantity of drugs involved.  It is a matter for overall assessment and a difference of 11.27 grams, even were that to be accurate, would not in our view invalidate the assessment of the starting point.  In any event it is, paying whatever regard to the Crown's calculations seems to us appropriate, entirely for this Court to assess the appropriate starting point.

41.      With regard to the role played, all counsel argue that whilst their respective clients had played a significant role in any event they answered to someone else.  They were not at the top of the drug conspiracy.  It was accepted for Ferguson that he had a pivotal role but was somewhat naïve in the manner in which he moved money through his bank account.  He was responsible for holding the drugs but not sourcing them and it was not particularly sophisticated as an exercise.  This argument was echoed to an extent for the other two Defendants.

42.      Again, other than accepting of course, that in assessing a starting point we should attempt to assess the degree of involvement of the Defendant who is to be sentenced, it will be very often the case that there will be other individuals higher in a conspiracy.  In terms of the local conspiracy, however, we are satisfied that the role of all three Defendants was in fact pivotal and that they were among the governing minds of the enterprise.  They may not have been the original source of the drugs - it appears that they were not - but that does not mean that they were not central and operated the conspiracy at a high level of it.  It is accepted that there is at least one other individual who is not before the Court on this occasion.  We do not speculate on what the appropriate sentence might have been for that individual had he been so.  We proceed, as we believe we are entitled to do, on the basis that the involvement of all three Defendants in the conspiracy was of high significance, pivotal to its success and involved identifying how to get drugs into Jersey and how to get the proceeds of drug trafficking out of Jersey.

43.      A number of matters were put before us for Ferguson pointing to his background, the challenges he had faced and that he had clearly been suffering from anxiety in connection with his activities and for the consequences on his family.  We repeat, what we have said on a number of occasions, that often the consequences to a wrongdoer's family is mentioned before the Court as something that we should take into account in considering sentence.  Although it may be that in certain exceptional circumstances the particular facts of the matter do lead to that outcome, in the large majority of cases the Court will not take into account any such effects.  The Defendant did not allow any such considerations to stop him from committing the crime and we do not think it is appropriate to take those considerations into account in considering what the consequences of that crime should be.

44.      It was pointed out to us that Ferguson now recognised and suffered genuine remorse for his activities and that he wants to undertake work whilst he is in prison.  We were referred to the references supplied on his behalf and by him and we accept that they show a different side of his character.  It was argued that there was a protective factor against reoffending which is his relationship with his children although we have to say that did not appear to have any preventative effect up to this point.  In summary, however, it was suggested that he should not be sentenced at any higher level than might a courier in the circumstances.

45.      Counsel for Morgan agreed with this approach and many of the same points were made with regard to his involvement as were made with regard to Ferguson.  It was suggested that the uplift in connection with money laundering offending should not be greater than one year and that he should have the full credit for a guilty plea.  This was his first drug related conviction and we were directed to his letter of remorse and personal mitigation available to him.  The pre-sentencing report suggests that he had reflected deeply and now understands the impact on others and indeed on himself and is concerned about the impact on his mother.  There was no lavish lifestyle involved.

46.      These submissions were echoed by counsel for Saunders.  He too argued that the starting point was too high and the Crown's sentencing calculation was imprecise.  They should be sentenced only for the three importations mentioned above because there was no evidence relating to the other conduct.  An ongoing enterprise cannot be considered, so it was argued.  The starting point was 13 years at the very highest.  Saunders too, showed remorse and his letter of remorse should be taken at face value.  He was cooperative and answered all the questions to Customs Officers when asked.

47.      We called upon the Crown Advocate to respond to the matter of the restriction of sentencing parameters to those relating to the three importations.  Crown Advocate Maletroit submitted to us that the offence was conspiracy to supply cocaine and although they were only aware of the details of three such importations, nonetheless it was clear from the surrounding circumstances that this was an ongoing exercise and other importations had been successful.  With regard to the argument relating to the quantum of cocaine he submitted that there was no error in the drugs expert report.  All of the amounts seized in their component parts were just short of an ounce and the valuation was taken as representing 10½ ounces.  The drugs are branded as a one ounce deal and the fact that in reality those "ounces" were somewhat underweight was not a discrepancy but was rather a feature of the drug trade.

48.      We repeat what we have said above.  The Defendants are sentenced for a conspiracy and in the light of the surrounding facts set out in the statement of facts, which must be taken as accepted, it is clear that whilst the law enforcement authorities have been able to intercept three importations there was a general conspiracy which, information suggests, the importations identified were not the only ones.

49.      However, the Crown has largely proceeded on the amounts of drugs actually identified and we have been prepared to proceed on that basis as well.  Accordingly, whilst clearly this was an enterprise which was ongoing, the sentence has been fixed by consideration of the Rimmer guidelines for the amounts actually seized.

50.      We do not think there is anything in the numerical discrepancy argument.  In our view it is not a precise calculation as we have said above and we are satisfied that the difference between calculating the amounts concerned as one ounce deals or calculating the actual amount of the drugs involved would not give rise to a difference in the starting point.

Conclusions

51.      As we have indicated above, we agree with the approach from the Crown in that the starting point for the sentence that we apply to the conspiracy charge should be subject to an uplift to reflect the money laundering charge the sentence for which should then be applied concurrently.  This will in our judgment reflect the seriousness of the additional charge which might otherwise require an artificial consecutive sentence to be applied in the light of totality.

52.      The range identified by the Crown is correct and in our view the amount of the drugs involved, together with the role and involvement in the importation would justify a starting point of 13 years imprisonment.  To that we would allow one year as an enhanced starting point for the money laundering offence.  As a result we identify the correct starting point as one of 14 years imprisonment.

53.      There are a number of ways in which this matter could be considered.  It would have been open to us to impose a higher uplift to deal with the question of money laundering.  We do not do so, in the light of totality however.

54.      From a starting point of 14 years imprisonment we considered what the appropriate deductions were for mitigation.  As we have indicated this is neither a precise science, nor an exercise that should be carried out on a purely mathematical basis.

55.      We do not agree that it is incumbent upon us to apply a full one third discount in the light of the guilty pleas valuable though these pleas were.  The evidence against these Defendants was particularly strong.  Each of the Defendants had other mitigation available to them and that mitigation causes us to make a slight further deduction from that starting point than did the Crown with regard to Count 1.  However, in our view the correct overall deduction was one third to allow for the early guilty pleas and the other available mitigation.  From a starting point of 14 years imprisonment, with regard to Count 1, this resulted in 9 years and 4 months imprisonment.

56.      We agreed with the Crown's assessment of the culpability and gravamen of the other counts applicable to each Defendant and accordingly we impose the sentences set out in paragraph 6 hereof.

57.      We ordered the forfeiture and destruction of the drugs and the Defendants' mobile phones with the exception of a Samsung A51 mobile phone belonging to Morgan.

58.      We had already dealt with the orders made for confiscation on the application of the Attorney General.

Authorities

Misuse of Drugs (Jersey) Law 1978. 

Proceeds of Crime (Jersey) Law 1999. 

Customs and Excise (Jersey) Law 1999. 

Rimmer v AG [2001] JLR 373. 

AG v Brennan [2016] JRC 234. 

AG v Goodwin [2016] JRC 165. 

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

Valler v AG [2002] JLR 383. 

Carter -v- AG 1994/192 (Court of Appeal 28th September 1994 Unreported)