Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class A and Class B.

[2022]JRC104

Royal Court

(Samedi)

5 May 2022

Before     :

J. A. ClydeSmith, O.B.E, Commissioner, and Jurats Ramsden, Ronge and Pitman.

The Attorney General

-v-

Michael Stephen Clohessy

and

Tara-Lee Ashlyn Cowell

(aka Ashlyn Cowell, Tara-Lee Ashlyn Murphy, Ashlyn O'Dowell)

Sentencing by the Superior Number of the Royal Court, following guilty pleas to the following charges:

Michael Stephen Clohessy

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law, 1999 (Count 1).

Age:  44.

Plea: Guilty.

Details of Offence:

On Sunday 24^th October 2021, CLOHESSY, who had arrived in Jersey from Liverpool some days earlier, was observed leaving the Havelock Guest House in Havre Des Pas.  That day, COWELL travelled to Jersey on a flight from Liverpool.  The two were in contact via mobile phone before and after her arrival.  

 

They were later observed at Howard Davis Park.  COWELL went inside the toilets and CLOHESSY waited for her.  After a short time COWELL came out of the toilets smiling.  They continued along the pathway towards St Luke's Church and CLOHESSY went out of sight in the foliage.  They were then seen walking to the Admiral Pub, CLOHESSY continually looking behind himself.

 

They were apprehended and arrested on suspicion of importation of controlled drugs.  Officers discovered four capsules of pregabalin and ten diazepam tablets in COWELL's rucksack (counts 3 and 4 respectively).  

 

A search of the area where CLOHESSY had left the path revealed two clingfilm packages, each containing four round packages the size of golf balls, later found to contain 215.18 grams of heroin (count 1)..

COWELL later passed a plastic bag containing ten small wraps of white powder, consisting of 4.35 grams of cocaine, estimated as being worth £320 - £600 (count 2). 

£1,137 cash was seized from CLOHESSY's room at the Havelock. 

The total value of the heroin was estimated as £32,000 - £40,000.  If sold as individual gram deals, it could reach some £43,000 - £86,000.  If sold as 20 individual deals from a single gram, the estimated value was £215,000.

Details of Mitigation:

Guilty pleas to all offences, albeit not entered at the earliest opportunity.

Previous Convictions:

11 convictions in the UK for 16 offences, including of violence, harassment and in relation to offensive weapons.  Suspended prison sentence in 2014 at Liverpool Crown Court for possessing amphetamine with intent to supply.  On 17 January 2020, he was sentenced in the Court of General Gaol Delivery, Isle of Man, to 40 months' imprisonment for possessing a controlled drug with intent to supply (cocaine).  He was released from HMP Walton in Liverpool in April 2021, subject to post-custodial licence conditions, his licence expiry date not being until 2023.  At the time of his arrest for the instant offending, he was still subject to that licence in Liverpool and therefore breached his licence conditions and became subject to recall. 

Conclusions:

Count 1:

Starting point 12 years' imprisonment.  9 years' imprisonment.

Total: 9 years' imprisonment.  

Declaration of benefit sought in the sum of £33,137. 

Confiscation Order sought in the sum of £1,137. 

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

Count 1:

Starting point 12 years' imprisonment.  7 years' and six months' imprisonment.

Total: 7 years' and six months' imprisonment.

Declaration of benefit ordered in the sum of £33,137. 

Confiscation Order made in the sum of £1,137.  

Forfeiture and Destruction of the drugs ordered.  

 

Tara-Lee Ashlyn Cowell

4 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law, 1999 (Counts 1, 2, 3 and 4).

Age:  35.

Plea: Guilty.

Details of Offence:

See above.

Details of Mitigation:

Guilty pleas to all offences, albeit not entered at the earliest opportunity. 

Previous Convictions:

25 convictions for 82 offences involving theft, fraud and violence.  No drug-related convictions.

Conclusions:

Count 1:	Starting point 11 years' imprisonment.  8 years' 6 months' imprisonment.
Count 2:	Starting point  7 years' and 5 months' imprisonment.  5 years' and 5 months' imprisonment, concurrent.
Count 3:	No separate penalty.
Count 4.	No separate penalty.

8 years' and 6 months' imprisonment.

Sentence and Observations of Court:

Count 1:	Starting point 11 years' imprisonment.  7 years' imprisonment.
Count 2:	Starting point 7 years' 5 months' imprisonment.  5 years' imprisonment, concurrent.
Count 3:	No separate penalty.
Count 4:	No separate penalty.

7 years' imprisonment.

Forfeiture and destruction of the drugs ordered.

C. R. Baglin Esq., Crown Advocate. 

Advocate J-A. Dix for Defendant Clohessy. 

Advocate J. C. Gollop for Defendant Cowell. 

JUDGMENT

THE COMMISSIONER: 

1.        The defendants stand to be sentenced for their joint involvement in the importation of 215 grams of heroin with a purity of 28 per cent into the Island, concealed or secreted on Cowell internally.  She also imported, on the same occasion, 4.35 grams of cocaine secreted internally.  On arrest, small quantities of pregabalin and diazepam for her personal use were found in her rucksack.  

2.        The drug's expert values the heroin if sold in the Island in ounce deals as between £32,000 and £40,000 but apparently if sold in twenty individual deals taken from one gram, the heroin could be worth up to £215,000.  The cocaine was valued at between £320 and £600.

3.        Both defendants said they imported these drugs to pay off drug-related debts; they both have a long-standing history of drugs abuse.  Cowell says that she had been threatened by her dealers, threats which she had initially resisted but eventually succumbed to.  Indeed, she says that she had suffered actual violence in their hands. 

4.        Clohessy has some 11 convictions in the UK for 16 offences, including violence and drugs.  Cowell has 25 convictions for 82 offences, including violence and dishonesty but none for drugs.  Advocate Gollop makes the point on her behalf that her dishonesty offences are probably attributable to her drugs habit. 

5.        They are both assessed at a high risk of reconviction.  The defendant, Cowell, is assessed at a very high risk.  Under the guidelines in Rimmer v AG [2001] JLR 373, the starting point for an importation involving between 100 and 250 grams of heroin is 10 to 13 years' imprisonment.  In this case Clohessy admits, and the prosecution accept, that he was the middle-man whose task was to receive the drugs from Cowell when in Jersey and to pass them on to an unnamed dealer.  Cowell was the courier.

6.        The prosecution take a starting point of 12 years for Clohessy and 11 years for Cowell for the heroin importation.  The defence agree with those starting points, as do we.

7.        As for the cocaine, the starting point for quantities of between 1 and 20 grams is seven to nine years' imprisonment.  The prosecution take a starting point of seven years' five months for Cowell in this respect.  Again, her advocate agrees with that starting point, as do we.

8.        Whilst both defendants entered guilty pleas when indicted before the Royal Court, when they appeared in the Magistrate's Court, they entered a no plea.  This was accepted by the Magistrate, requiring the prosecution to prepare and serve a full file. 

9.        This Court has recently said in the case of AG v Goncalves [2022]JRC 097 that in order to receive a full one-third credit for a guilty plea, it must be entered into at the first occasion before the Magistrate's Court.  The prosecution therefore take the view that the defendants should receive no more than a 25 percent discount for their guilty pleas.

10.      In terms of aggravating features, Clohessy came to Jersey in breach of a post-custodial licence condition; he does have drug-related convictions. 

11.      As for Cowell, the prosecution consider her importations of the other drugs as an aggravating factor to the heroin importation rather than applying a Valler v AG [2002] JLR 383 uplift.

12.      Taking into account all of the available mitigation known to the prosecution, it therefore moves for a sentence of 9 years for Clohessy and 8 years 6 months for Cowell for the heroin importation and 5 years 5 months concurrent for the cocaine importation.

13.      Turning to the general mitigation, we have had very full and detailed pleas of mitigation made by both defence counsel and we have taken into account everything that has been put forward on behalf of the defendants very ably and clearly. 

14.      There is one factor though of importance in terms of the ultimate sentence in our view, and that is the proposed credit of 25 percent for the guilty pleas.  We agree with defence counsel that it is not appropriate in this case, for a number of reasons.  Firstly, the case of AG v Goncalves took place in April this year, well after the defendants appeared before the Magistrate.  They would not have been advised therefore that failing to plead guilty at the first appearance before the Magistrate's Court stage could result in a reduction in the credit that they will receive.  Secondly, they were advised to enter no pleas.  That was accepted as appropriate by the Magistrate.  Thirdly, the analyst's report in terms of the drugs that were brought over to the Island had not been disclosed at that stage and they were not in a position to enter fully informed pleas.

15.      We therefore agree that both of the defendants are entitled to a full one-third discount for their guilty pleas. 

16.      As to the other mitigation, we consider that there is more mitigation available to Clohessy, particularly when we take into account the documentation before the Court.  We also bear in mind that Cowell's sentence must reflect the other drugs that she imported into the Island and is to be sentenced for.  We do note that both defendants are making the very best of their time in custody, and we commend them for that, both in terms of treatment and addressing their mental health issues.  We note that Cowell has enhanced prisoner status, and we are very hopeful that she will be able to maintain that. 

17.      At the end of the day, as the prosecution have said, there is nothing exceptional in this case to warrant the Court deviating from its strict sentencing policy in relation to cases involving the trafficking of Class A drugs, an activity which is treated so severely because it is dangerous, ruins lives and has a severely damaging impact on the local community. 

18.      Mr Clohessy, under Count 1, the importation of heroin, you are sentenced to 7 years' 6 months imprisonment. 

19.      Ms Cowell, in relation to Count 1, the importation of the heroin, you are sentenced to 7 years' imprisonment. 

20.      In relation to Count 2, the importation of the cocaine, you are sentenced to 5 years' concurrent And for Count 3 and 4, no separate penalty will be imposed. 

21.      Therefore, Mr Clohessy, you will serve a total sentence of 7 years' six months and, Ms Cowell, you will serve a total sentence of 7 years.

22.      Finally, we order the forfeiture and destruction of the drugs.

23.      The Court grants both applications for reports to be released to HMP La Moye. 

Authorities

Customs and Excise (Jersey) Law, 1999.

Rimmer v AG [2001] JLR 373. 

Valler v AG [2002] JLR 383.

AG v Goncalves [2022] JRC 097. 

AG v Calvert & Moore [2016] JRC145

AG v Howe [2020] JRC 268

AG v Gittens [2018] JRC 201

Campbell v AG [1995] JLR 136.

Thurban et al [2020] JRC 212