Jersey Unreported Judgments

Superior Number Sentencing -  drugs - importation - Class A

[2022]JRC208

Royal Court

(Samedi)

11 October 2022

Before     :

Sir William Bailhache, Commissioner, and Jurats Crill, Dulake, Hughes, Cornish and Blampied.

The Attorney General

-v-

Rosie Massay

Sentencing by the Superior Number of the Royal Court, following a guilty plea to the following charge:  

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:  25

Plea: Guilty

Details of Offence:

On 3 August 2022, the defendant was stopped by Customs officers at Jersey Airport on a flight from Birmingham.  When questioned, the defendant told officers that she had flown to Jersey for a romantic weekend with her partner, which they had booked a couple of days before travel.  The defendant was taken for a search during which a white substance wrapped in clingfilm was found in the pocket of the shorts she was wearing. When asked what it was, the defendant said: "it's coke".  The substance was analysed and was confirmed to consist of 105.36 grams of cocaine with a purity of 81%. 

Details of Mitigation:

Guilty plea, previous good character.   

Previous Convictions:

No previous convictions. 

Conclusions:

Count 1:

Starting point 11 years' imprisonment.  7 years' and 6 months' imprisonment.

Declaration of benefit sought in the sum of £120.

Confiscation order sought in the sum of £120.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Count 1:

Starting point 11 years' imprisonment.  7 years' imprisonment.

Declaration of benefit made in the sum of £120. 

Confiscation order made in the sum of £120. 

Forfeiture and destruction of the drugs ordered. 

C.L.G. Carvalho, Crown Advocate.

Advocate J.C. Gollop for the Defendant.

JUDGMENT

THE COMMISSIONER: 

1.        The Defendant is here to be sentenced on one Count of being knowingly concerned in the evasion of the prohibition against the importation of a controlled drug (cocaine).

2.        The facts are that she came to the island for the fourth or fifth time this year, on this occasion carrying in her knickers 105 grams of cocaine which she transferred to her pocket by the time she was searched.  She readily admitted on its discovery that it was cocaine.  Her account to Customs, maintained before us, was that she had it in her possession for her personal use.  She intended to use some of it during the weekend in question, despite her partner's disapproval of her use of the drug, and she would then take the balance back to the UK with her.  She did not want to leave the balance of the drugs in the UK in the house she shared with her mother because she did not want her mother to find the drugs, as she too disapproves of them.  The cocaine had a purity of 81%. 

3.        As has been said so often in this Court, we have a settled sentencing policy in respect of drug trafficking offences.  In the case of Class A drugs like cocaine in powdered form, we are guided by the case of Rimmer v AG [2001] JLR 373.  We have to fix a starting point for the offence before considering mitigation and are required to assess the defendant's involvement in drug trafficking.  This is done primarily by having regard to the weight of the drugs involved, in this case 105 grams, which puts the Defendant in a range of 10 to 13 years as a starting point, but it is appropriate also to have regard to other dicta in Rimmer, in particular at paragraph 29 where the Court of Appeal said this:

"However, if the degree of purity is very high, at about 75% or greater, then it may be appropriate in particular cases to increase the starting point to take account of this because, first, a consignment of such high purity is much more likely to be "cut", and secondly, if it is not cut, it will do greater harm to those who consume the drugs. This approach was adopted by the Court of Appeal in Kenward v. Att. Gen. (6) and we consider that this is the right approach."

4.        This Court thinks that we are entitled to have regard to this.  Because of the unusually high purity in this case, we think it is correct to increase the starting point.  The drugs could have been adulterated to provide three or four times their actual weight if sold at street level. 

5.        But we are also required to look overall at the involvement of the defendant in drug trafficking.  Although the defendant says this was for personal use, we think the involvement was that of a mere courier, by which we do not intend to diminish the importance of that role, and we use the expression only to distinguish it from more serious involvement in what was in fact a commercial importation.  We think 11 years is the appropriate starting point. 

6.        Now the Crown has said that we do not need to have a Newton Hearing in this case because it is immaterial to sentence whether the Defendant had any intention to supply the drugs to others or whether she intended to use them herself.  In our judgment, that contention is inconsistent with the authorities and wrong in law.  First of all we remind ourselves that trafficking extends to a number of different drug offences.  If it is right, as it seems clear, that no distinction is drawn between the different types of trafficking offences for the purpose of sentence, then taking into account personal use in possession with intent to supply cases, requires the Court to take it into account in importation cases or indeed in being knowingly concerned cases.  In the possession cases it is obvious because personal use, as against supply to others, forms the distinction between two different possession offences carrying different penalties.  But the principle carries through to the different types of importation charge. Indeed there will be many cases, and this is probably one, where the defendant could have been charged with importation instead of being knowingly concerned in evading the prohibition under Article 61 of the Customs and Excise (Jersey) Law 1999; and that shows it would be a nonsense to ignore for sentencing purposes, the fact that she intended the drugs for personal use in a knowingly concerned case but take it into account in an importation case. 

7.        There is helpful summary of the position in AG v Mackenzie and Richards [2011] JLR 689 at paragraphs 22-23 and later on at paragraphs 40-50. 

"22-ƒThe next case of consequence in this series is the case of Gregory v. Att. Gen. (12). In that case, the two significant charges brought against the accused related to the importation of 8.54g. of heroin and 139 tablets of methadone. Originally, the accused had been charged not only with importation but also with possession with intent to supply. When he entered a plea of guilty to the charges of importation, the Crown abandoned the charges of possession with intent to supply. The basis for doing so was that the purpose to which the drugs were to be put was not a relevant consideration for sentencing. Mr. Gregory maintained that the drugs imported were for his personal use. The Crown contended that the drugs would have been supplied by him to someone else and the Royal Court accepted the Crown's contention. In doing so, the court demonstrated that the purpose of the importation was indeed relevant to the question of sentence. If it had not been relevant, there would have been no reason to resolve whether the drugs were imported for personal use or for onward supply. It seems to us that the court was unquestionably right to approach the matter in this way because at that time the issue for the sentencing court was whether the guideline case of Campbell should be used to fix the starting points. Indeed, the Court of Appeal in Gregory v. Att. Gen. approached the matter in just that way. In its judgment, having decided that there was insufficient to justify the conclusion that this was a commercial importation, the Court of Appeal said this (1997 JLR at 9):

"Once it is established and accepted that sentence has to be passed on the basis that the importation was not for a commercial purpose, the guidelines in Campbell .-‰.-‰. are not applicable. That case deals only with cases of trafficking on a commercial basis."

23-ƒIt also seems reasonably clear from the Court of Appeal's decision in Gregory that the court took the view that the purpose for which the importation was made was relevant to the offence rather than the offender.

The court said this, when considering the Crown's contention that the plea that the drugs were intended for personal use did not contradict the Crown's case (ibid., at 6):

"We refer first to the injustice of the result. In terms of offence to the common good, importation of drugs for supply to others is clearly more serious than importation for the importer's own use .-‰.-‰. [T]he two situations of importation for commercial use and importation for personal use do stand on different levels from the point of view of the vice being introduced. It seems unjust and inexplicable that two acts so different in their results should be visited with the same penalty."

...

40-ƒWe deal first with the contention that Shahnowaz v. Att. Gen. (14) was only concerned with an importation charge and that we can apply a different principle to charges of supply and/or possession with intent to supply. We reject that submission. In Campbell v. Att. Gen. (7), the Court of Appeal said this (1995 JLR at 145):

"We have employed the term 'trafficking' deliberately. In the past, some distinctions may have been drawn between offences involving the importation of Class A drugs and offences involving their supply or their possession with intent to supply. In our judgment, there is no justification for any such distinction. The guidelines which we have set out above apply to any offence involving the trafficking of Class A drugs on a commercial basis."

41-ƒFor this reason alone, it would seem to us to be inappropriate to contemplate re-opening any distinctions of past years in relation to the different drug trafficking offences. Furthermore, each of them carries the same maximum sentence today. In addition, it appears to us that the gravamen of each of the trafficking offences is sufficiently similar that one should not be looking to make any such distinctions. The drug trafficking offences are all concerned with addressing in their different ways the evil which drug-taking visits upon drug users. For all these reasons, it appears to us that there is no basis for the distinction which was urged upon us by Advocate Fields.

42-ƒWe now turn to the second submission, namely that Bonnar v. Att. Gen. (6) relies upon Campbell v. Att. Gen. (7) and is therefore concerned only with the trafficking of drugs for commercial purposes. In our view, this submission is misconceived. It is correct that Campbell was a guideline case setting down rules for approaching sentence where there was a case of trafficking on a commercial basis. Both Rimmer (13) and Bonnar were commercial trafficking cases in any event. While one might have some difficulty in accepting at first glance the conclusion of the Court of Appeal in Shahnowaz (14) (2007 JLR 221, at para. 9) quoted in para. 36 above (that the court in Rimmer had hinted at an expansion of the basis of the guidelines in Campbell by not referring to the limitation of trafficking for commercial purposes), the fact remains that the case of Shahnowaz did make it plain that importation for personal use as opposed to importation for other purposes was a matter of mitigation and was not relevant to the starting point. In our view, the cases of Shahnowaz and Conquer (9) qualify each of the guideline cases of Campbell, Rimmer and Bonnar. To hold otherwise would be to disregard the system of judicial hierarchy which requires that proper regard be paid to decisions of the Court of Appeal. We therefore reject the submission that, where one is concerned in drug trafficking in Class A drugs in tablet form, the starting points set out in Bonnar only apply in cases of trafficking for commercial purposes.

43-ƒWe now turn to the third argument, which is as to whether it is fair to use the same starting point where there is no intention to traffic in the drugs as in cases where there is such an intention - in other words, whether the intention of the defendant should form part of the assessment as to his role in the drug trafficking operation and not fall in the mitigation area. We deal with it only because the Court of Appeal has said on many occasions that in matters of sentencing policy it will have very close regard to the views of the Royal Court.

44-ƒThe first thing to say is that it is, in our view, obvious that there is a considerable difference in terms of criminality between those who import drugs for personal use and those who import drugs for commercial purposes. We respectfully adopt the analysis in that respect of the Court of Appeal in Gregory v. Att. Gen. (12) and also of the court in Shahnowaz v. Att. Gen. (14). The question is whether that difference should be reflected in fixing a lower starting point, because the difference is part of the offence, or whether it should be applied in the area of mitigation, as relevant to the offender. The current cases are not importation cases, but it is useful to consider the question first in relation to the difference between importation for personal use and importation for commercial purposes, before going on to consider potential differences of intention in relation to the possession of Class A drugs with intent to supply.

45-ƒThe gravamen of the offence of importation is that it results in the increase in the volume of dangerous drugs circulating in the country which, as described by the Court of Appeal in Gregory, is itself an evil. If the drugs are not in the country, they cannot be consumed, in whatever fashion. Furthermore, applying the test in Campbell (7), Rimmer (13) and Bonnar (6), it is perfectly possible for someone who is importing the drugs for personal use nonetheless to be extremely close to the main source of supply. Whether the defendant is close to the main source of supply may sometimes be a matter which the Crown is not able to establish but in theory there is no reason why it could not be established in some cases. Accordingly, the involvement in drug trafficking can be assessed regardless of the purpose to which the drugs will be put once they have been imported.

46-ƒSecondly, one could conceive of a theoretical position whereby a wealthy drugs importer considers for misguided reasons of his own that it would be in the best interests of the community or perhaps in his best interests if he were to give, and not to sell, the drugs to his friends and acquaintances. To say at that stage that the importation was for the reasons of social supply and not commercial exploitation completely ignores the gravamen of the offence. In our view, this goes to show that the intention of the importer is not a factor in assessing the starting point which requires a review of the importer's role in relation to the offence.

47-ƒIn the example given, the importer's intention, which is perhaps best described as an underlying intention because it is not the mens rea of the offence, may well be relevant to the question of sentence. If it is, it is a matter that is subjective to the importer - unsurprisingly, because it reflects his intention - and therefore would form part of his personal mitigation which the sentencing court may or may not think is of significance.

48-ƒIn our view, similar principles apply to the supply of drugs or to the offence of possession with intent to supply. In each case, the gravamen of the offence is that drugs have been or are intended to be supplied to others, risking damage to their health and the structure of their lives. That they are willing participators in accepting that risk is neither here nor there as far as the offence is concerned. The drug trafficker who deals commercially preys on their vulnerability for monetary gain. The drug trafficker who supplies at cost with the hope of a reciprocal favour at some future date, or simply as a gift, similarly prays on their vulnerability albeit for a different purpose-not for money but for other benefits he perceives for himself. As far as the gravamen of the offence is concerned, there is no difference.

49-ƒAccordingly, we do not think that it is appropriate to have regard to what is termed a "social supply" as a ground for reducing the starting point, even if we were not constrained by the guidance which the Court of Appeal has already given, which we think we are.

50-ƒNonetheless, of course there is a difference between the supply of the drugs for profit and the supply of drugs as a "social supply." The extent of that difference will be a matter for the sentencing court to appreciate in considering the mitigation which has been advanced. If the social supply amounts to recovering the cost of the drugs, so that the supplier in effect has his drugs for nothing or at a discounted price, it may be that the mitigation will not carry much weight. If the defendant has supplied the drugs to particularly vulnerable persons who were not in a real position to refuse by reason of their age or other vulnerabilities, it may equally be that the sentencing court will not give too much credit for the mitigation of a so-called "social supply." There is a wide variety of factual possibilities in what has been termed a social supply of drugs and we think it is better to leave the sentencing court to form its own assessment of the extent to which the explanations proffered on behalf of any defendant can properly be treated as mitigation."

8.        It seems to us to be clear that if there may in some cases be a difference between supply for profit and social supply, as the Royal Court accepted could affect sentence  in Mackenzie and Richards, then  that must be even more the case when comparing importation for personal use against importation for any other type of supply.  In our experience, that has been the practice of this Court over many years, albeit we have not had the cases put before us to justify that statement, although we note that it is not one from which Advocate Gollop dissented and he rightly referred to the conclusion of the Court of Appeal in Shahnowaz v AG [2007] JLR 221.  The gravamen of the offence of importation may be the introduction of drugs into the island rather than the supply to others, and in consequence of that, the fact they were intended for personal use does not go to the starting point for sentencing, but the fact of importation for personal use may be genuine personal mitigation when it comes to assessing the right sentence, because the motivation for committing the offence is a factor that the Court does take into account. 

9.        So we reject the Crown's submission that the Defendant's intensions were immaterial for the purposes of sentence.  The Crown also put before us the case of R v Cairns [2013] EWCA Crim 467, which provides a very useful guidance for how the Court should approach a dispute in the type of situation which applies here and Lord Justice Leveson at paragraphs 6 and 7 of that judgment said this

"6. Without seeking to be exhaustive of the issues that might arise (or citing all the relevant authorities), there is no obligation to hold a Newton hearing (a) if the difference between the two versions of fact is immaterial to sentence (in which event the defendant's version must be adopted: ... (b) where the defence version can be described as 'manifestly false' or 'wholly implausible': ... or (c) where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation where the court is not bound to accept the truth of the matters put forward whether or not they are challenged by the prosecution... 

7. A Newton hearing need not be a lengthy affair. By way of example, in the case of Cairns discussed below, if the judge was concerned that the defendant was, in truth, the equivalent of a street dealer (given the quantity of drugs, the money in his possession and the phone details), it would have taken a few minutes only for the defendant to be provided with the opportunity and, if he took it, to give evidence seeking to establish his contention that his supply of class A drugs to others was on a social basis to friends and associates only. The judge would then have been in a position to decide the issue to the usual standards. Given the risk that credit for a guilty plea will be reduced if there is an adverse Newton finding, advancing a spurious basis of plea will require careful consideration. At the conclusion of any such hearing, in order to meet the requirements of the defendant and the wider public, the judge should provide a reasoned decision as to his findings of fact and thereafter, following mitigation, proceed to sentence."

10.      We resolved in this case to hold an immediate Newton Hearing to give the Defendant the opportunity of explaining why we should treat this importation as one for personal use bearing in mind always the burden and standard of proof in criminal cases, namely that is that the prosecution had to establish the position beyond reasonable doubt. 

11.      Advocate Gollop was given the opportunity of taking brief instructions from the Defendant which he did, and he informed us that she did not wish to take up the opportunity of giving evidence, she would prefer not to do so, and Advocate Gollop was warned and the Defendant would have heard this, that of course the Court might draw such inferences as it thought fit from any such decision. 

12.      Firstly, we have considered carefully all the relevant material on this point, all of which was put to Advocate Gollop in the course of his submissions to us in mitigation, so he has had the opportunity of considering carefully what answers might be provided to these points. 

13.      We have taken into account the purity of the drug and indeed we have also noted that there is no evidence that the Defendant had with her any creatin or any other adulterating substances which would have enabled her to adulterate the drugs for her own use during her intended brief stay in the island.  Furthermore, it was to us extraordinary that she should have anticipated bringing her partner with her in circumstances where she would be taking the cocaine and her partner had expressed severe disapproval of that drug.

14.      Secondly, as I put to Advocate Gollop, the explanation which the Defendant has put forward, requires us to accept that she was prepared to cross two borders twice with the drugs in question or with most of them.  That is to say exporting the drugs from the United Kingdom and importing them into Jersey, exporting them from Jersey and importing them into the United Kingdom with all the risks that each of those actions would have run.

15.      Thirdly, one of the references put before us is a reference from a cousin of the Defendant which suggests very clearly that the motivation of the Defendant in bringing the drugs over to the island was to raise cash for the treatment of her sick mother, and in those circumstances, it is hard to see how that is consistent with personal use.

16.      The Court is satisfied beyond all reasonable doubt that this was not an importation for personal use, but instead was part of a commercial drug trafficking importation as has been indicated.  So we take the starting point of 11 years which we have adopted having regard to the nature of the importation and look at the personal mitigation available to the Defendant.  We note that she has no previous convictions.  We note that she has entered a guilty plea but we have also taken account of the Crown's submission, which we think is right, that the guilty plea had to be entered in the sense that a conviction was inevitable.  After all, she had the drugs in her pocket when found by Customs so she could hardly have said that she did not know they were there.  Nonetheless she is entitled to some mitigation for the plea.  She has provided some good references to us and, in particular, a reference from Mr Cooper, but also the references from her mother and her family which are good references and which show that the Defendant has support from those who care for her and no doubt for whom she cares as well.  And we have the Defendant's expression of remorse and apology which is rightly expressed and which we take into account. 

17.      Having regard to all these features, the Court considers that the right sentence is one of 7 years' imprisonment and that is the sentence we now impose and we hope, as the Defendant has expressed in her letters to us, that she is going to use her time in prison profitably so that when she emerges, she will be better placed to tackle the problems that life throws at one.

18.      We also order the destruction and forfeiture of the drugs in question.

Authorities

Rimmer v AG [2001] JLR 373

Customs and Excise (Jersey) Law 1999

AG v Mackenzie and Richards [2011] JLR 689

Shahnowaz v AG [2007] JLR 221

R v Cairns [2013] EWCA Crim 467. 

AG v Ferguson et al [2022] JRC 102

AG v Thurban et al [2020] JRC 212

Campbell v AG [1995] JLR 136

Carter v AG [1994] JCA 192