Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class A - reasons for the decision

[2024]JRC151

Royal Court

(Samedi)

4 July 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen MBE, Dulake, Averty, Hughes, Le Cornu, Le Heuzé and Berry

The Attorney General

-v-

Natalia Dorota Grzegorska

His Majesty's Solicitor General assisted by Ms L. B. Hallam, Crown Advocate.

Advocate N. B. R. Mière for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

The facts of the offence

1.        Natalia Grzegorska, the Defendant, is 36 years old and of previous good character.  On 12 February this year she was stopped by customs officers when she arrived in Jersey to visit her boyfriend.  She said that she was coming to the island for a week.  When her suitcase was searched by customs officers, she volunteered that she had some cocaine.  Miss Grzegorska was arrested and cautioned and within a trouser pocket within her suitcase, a ziplock bag was discovered containing a small amount of cocaine.  Another small amount was found in her purse.  In interview, she made full admissions, saying that she had purchased the cocaine from a friend and had packed it for use while she was in Jersey.  She said she used cocaine once or twice every six months.  The total weight of the cocaine came to just under 4 grams and, if sold in Jersey, would have had a street value of between £600 and £1,000.   But the customs expert in drug trafficking confirmed that there was "nothing in the body of evidence which suggests the drugs were for onward sale and I am of the opinion that the cocaine was for personal use".

2.        Miss Grzegorska pleaded guilty the following day at the first opportunity before the Magistrate.  She was remanded in custody and has remained in custody since that time for a period of four months. 

3.        When this case first came before the Court for sentence, it was adjourned for the procuration of further expert evidence.  This evidence confirmed that the amount of cocaine imported could easily have been consumed by Miss Grzegorska and / or her boyfriend within the course of a week, or even during a shorter period, with consumption of between half a gram and 1 gram per person per day being reasonable.  Further, Miss Grzegorska's two mobile telephones were analysed and the messages suggested that she might have shared the cocaine with her boyfriend, but would not have supplied it or shared it more widely.  Further, there were no messages indicating any prior importation of drugs into the island. 

4.        The Crown, in accordance with the decision of the Court of Appeal in Rimmer v AG [2001] JLR 373, moved for a starting point of 7 years imprisonment, with a sentence of 3½ years imprisonment sought having regard to the Defendant's early plea, good character and other mitigation available to her.  The Crown considered that Miss Grzegorska should receive credit to reflect her guilty plea but not the full third. 

5.        We make clear that the current practice of the Court is that, notwithstanding the strength of the evidence, defendants who plead guilty at the first opportunity in the Magistrate's Court in drugs cases generally receive the full one-third discount, absent special circumstances.  In some cases the Court has determined that, when the evidence against a defendant has been overwhelming (e.g. drugs found internally concealed) a full one-third discount is not appropriate, even with an early guilty plea.  In this case Miss Grzegorska pleaded guilty at the earliest hearing and was also fully cooperative with the Customs Officers.  She was clearly entitled to the full discount.

6.        The Crown also noted that Miss Grzegorska has an 11-year-old daughter, for whom she is the principal carer.  She is being cared for in England by a relative since her mother's arrest and remand in custody. 

Background to this hearing

7.        Prior to this case being listed, the Jurats wished to re-visit the policy of the Courts in respect of sentences of imprisonment imposed in similar cases.  In AG v Le Guillou [2024] JRC 010, the Court directed that:

"...the Attorney General lists the next sentencing case in which trafficking, importation, possession with intent to supply or being involved in the supply of less than 10 grams or 10 units of a Class A drug be listed before the Bailiff or Deputy Bailiff, and no less than 7, preferably 9 Jurats, for a review of the starting points applicable under the Campbell v AG [1995] JLR 136, Rimmer v AG [2001] JLR 373 and associated guideline cases."

8.        Three questions arise:

(i)        Is the Royal Court entitled to revise or amend sentencing policy in circumstances where there are relevant decisions of the Court of Appeal which ostensibly bind it?

(ii)       Should the Royal Court elect to make such a revision or amendment; and

(iii)      In what terms should such a revision or amendment be made?

The Rimmer guidelines

9.        Before answering these questions, it is appropriate to consider the current Court of Appeal guidance.  The starting point of the decision is Rimmer, where the Court of Appeal consolidated three appeals against sentence to allow itself the opportunity to review sentencing policy for drugs cases involving the trafficking of Class A drugs in powder form and to give guidelines for future cases.  The judgment of the Court was given by Southwell JA.  The cases before the Court involved heroin and cocaine.  The Court emphasised at paragraph 12 that sentencing "is a discretionary exercise in every case".  The Court went on to approve the following from the Court's decision in Wood v AG [1994] JLR N15a:

"That discretion, like all discretion, has to be exercised on proper grounds and with due regard to relevant principles but the important fact remains that in deciding upon the sentence in every case the Court is exercising its discretion upon the facts of that case."

10.     This extract was endorsed by the Court of Appeal in Rimmer (paragraph 13).

11.     The Court also noted that in Campbell v AG [1995] JLR 136, the Court had held that Jersey was a separate jurisdiction which "sets its own sentencing levels to meet the social and penal needs of the community in this island" (paragraph 14 of the judgment).

12.     At paragraph 16, Southwell JA said:

"The greater the quantity of illegal drugs brought into Jersey and sold and used here, the greater the harm done to the small community in Jersey. The policy of the Jersey courts must remain to impose strong punishments to mark the particularly anti-social nature of drug trafficking into and in Jersey."

This remains the policy of the Courts of Jersey today.

13.     At paragraph 20, the Court rejected the Attorney General's assertion that weight, "important factor though it is", could be the sole factor in determining the starting point for a particular sentence.  The Court of Appeal noted that there were other factors that could also be relevant; these included the role of the defendant "when deciding where, in the band of starting points appropriate to the amount of drugs trafficked in, the particular case should be placed" (paragraph 20).

14.     At paragraph 21, the Court of Appeal rejected the Attorney General's assertion that the role of a defendant was either not a factor at all or a factor of small relevance in deciding the starting point.  The Attorney General's observation recorded at paragraph 23 of the judgment that defendants seek to minimise their role could be remedied by the Royal Court, in the Court of Appeal's view, in rejecting such an account as being "incredible" or holding a Newton hearing.  The Royal Court is familiar with these solutions.

15.     In paragraphs 26 and 27, the Court of Appeal held that the weight of heroin, cocaine and similar drugs should be used as the measure of quantification and in the case of drugs such as LSD, ecstasy or amphetamine the dosage would be the appropriate measure.  It might (paragraph 29) be appropriate to increase a starting point where the degree of purity is "very high" which was held to be "about 75% or greater" as such a consignment is more likely to be "cut" or adulterated to allow it to go further. 

16.     At paragraph 32, the Court held that the appropriate course was to provide "bands of starting points by reference to the weight of drugs, adjustment being made within these bands to take account of the role and involvement of the defendant, and of other less significant factors including street value".

17.     The Court said (at paragraph 33):

"These bands, which will apply only to heroin, cocaine and other Class A drugs carried or sold in powder form, are as follows:

Weight (g.)	Starting point (years of imprisonment)
1-20	7-9
20-50	8-10
50-100	9-11
100-250	10-13
250-400	11-14
400 and over	14 upwards

18.     Importantly the Court said:

"34. We emphasize that these bands represent only guidelines, and are not to be treated as if embodied in a statute. The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of drugs and their role and involvement as principal factors, together with other lesser but relevant factors, as indicated above. The margins of these bands are also not to be treated as set in stone. There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate. However, we reiterate what this court said in Campbell that it will be seldom that the starting point for any amount of drugs will be below seven years. In this connection we refer to the recent case of Morgan v. Att. Gen. in which, though Morgan was trafficking on a commercial basis, this court took a starting point of only six years. We consider that the case of Morgan is to be regarded as an exceptional case, and in general the Campbell guideline of a minimum starting point of seven years should be adhered to by the courts of Jersey."

19.     The Court declined to give guidance in relation to Class A drugs carried or sold in tablet form, including ecstasy, LSD and amphetamine (paragraph 35).  That was left for the future.

20.     The Rimmer guidelines applied to all trafficking offences.

The Bonnar guidelines

21.     Guidance in respect of other Class A drugs was subsequently given by the Court of Appeal in Bonnar and Noon v AG [2001] JLR 626, Southwell JA again giving the judgment of the Court of Appeal.  The judgment in Bonnar and Noon was expressly without prejudice to the continuing efficacy of the Rimmer guidelines (paragraph 1 of the judgment).  The circumstances of the cases under appeal involved importation of MDMA or ecstasy.  At paragraph 13, the Court of Appeal said:

"any guidelines for sentencing in relation to Class A drugs carried or sold in tablet or pill form must be consistent with Campbell and Rimmer, and must avoid any diversions and in approach depending on the form in which Class A drugs are carried or sold."

22.     The Court of Appeal rejected the assertion that because ecstasy is less harmful than heroin or cocaine, the guidelines ought to provide for lower levels of sentencing for equivalent amounts of ecstasy.  The Court said:

"17  In our judgment, whatever may be the relative risks involved in illicit use of the different Class A drugs, the States have decided that all such drugs are to be categorized as Class A. It is not for the courts of Jersey to distinguish between the different Class A drugs in sentencing for trafficking. If any change in the law is to be made, it is for the States to make it, not the courts. We therefore accept the Attorney General's submission in this regard."

23.     The Court again held that the primary factors in sentencing are the amount or quantity of the Class A drug carried or sold and the role of the defendant.

24.     At paragraph 20, the Court held that in arriving at suitable guidelines for sentencing, in the case of these drugs it was necessary to achieve a reasonable degree of comparability with the guideline sentences in Rimmer. 

25.     The Court was provided with a series of suggested tables and observed at paragraph 21 "the choice between [the Attorney General's] various tables was not easy". 

26.     The Court held:

"22  We consider that the appropriate course is to give the following bands of starting points by reference to the number of tablets, capsules or other units of Ecstasy, LSD and other Class A drugs carried or sold in this form, adjustment being made within such bands to take account of the role and involvement of the defendant, and of other less significant factors including values:

No. of units	Starting point (years of imprisonment)
1-500	7-9
500-1,000	8-10
1,000-2,500	9-11
2,500-4,000	10-13
4,000-5,500	11-14
5,500 and over	14 upwards

23  In setting out these bands we accept the arguments of the Attorney General, and do not accept those of Miss Fitz and Mr. Preston, who argued for a materially lower level of sentencing, based in part on the level of sentencing in England and Wales. Having regard to the different circumstances in this Island, and the guidelines laid down in Rimmer, it is our judgment that the sentencing bands should not be lower than those we have set out above."

27.     It is noteworthy that in Mrs Noon's case, even though she was a courier of 2,258 ecstasy tablets which would have warranted her being placed in the 9 to 11 year bracket, her role was sufficiently exceptional to justify her being placed in the band below - at the bottom of that band - with a starting point of 8 years, further discounted by 50% for mitigation, resulting in a sentence of 4 years imprisonment.

28.     The circumstances of Mrs Noon's case perhaps demonstrate the difficulty in applying strict guidelines.  As the Crown have often said to the Royal Court, the guidelines are not tramlines. 

29.     It is now appropriate to consider recent cases to indicate the extent to which, at the bottom end, the guidelines have been followed in the recent past.

30.     In AG v Le Coguiec [2017] JRC 120, the defendant who was twenty-one, imported by post fifty MDMA tablets.  Various telephone messages revealed that he was concerned in the supply of controlled drugs.  The Court said at paragraph 2:

"The starting point for such an importation applying the guidance set out in Bonnar and Noon-v-AG [2001] JLR 626 is 7 - 9 years and the prosecution here have taken the lower starting point of 7 years with which the defence agree."

31.     The Crown moved for, and the Court imposed, a sentence of three hundred and twelve hours community service, equivalent to two years imprisonment.

32.     In AG v Burnside [2021] JRC 085, the defendant imported nineteen and a half tablets of LSD via the postal service when aged nineteen.  He was twenty when sentenced.  At paragraph 7, the Court said:

" Now we agree that it may be appropriate for the Court of Appeal or the Superior Number to review the starting point for this particular sort of offence, namely a postal importation of a relatively small quantity of Class A drugs for personal use.  But we are bound by the authorities, as drawn to our attention by the Crown, and we agree that the starting point for the importation offence is one of 7 years' custody.  This alone should demonstrate to you the seriousness of the offence you committed, and alone should prove to you that you had been older [sic] or had previous offences, particularly drug matters reported against you, then you would be starting a lengthy custodial sentence today.  But this court is bound by the provisions of the Criminal Justice Young Offenders (Jersey) Law 2014, which provides that the court shall not pass a sentence of youth detention unless no other method of dealing with that person is appropriate."

33.     The Court went on to impose a sentence of three hundred and twelve hours community service, equivalent to two years youth custody.

34.     In AG v Aboh [2023] JRC 249, the defendant, aged twenty-four, was sentenced in relation to two matters - importation of 207 grams of heroin at count 1 and importation of 2.39 grams of cocaine at count 2, which he volunteered when he was stopped was for personal use.  In relation to the offence at count 2, the Crown sought a starting point of seven years imprisonment, with a sentence of four years and eight months imprisonment to take into account the defendant's guilty plea.

35.     The Court imposed a sentence of twelve months imprisonment concurrent to count 2 and did not indicate whether or not it accepted the starting point moved for by the Crown.

36.     These, and other cases, appear to demonstrate a de facto departure from the seven-year starting point in cases where it was warranted, in particular for relatively small amounts of Class A drugs imported for personal use.

37.     We now consider the first question specified at paragraph 9 above.

Is the Royal Court entitled to revise or amend sentencing policy in circumstances where it is bound by decisions of the Court of Appeal?

38.     The answer to this question is found, inter alia, in the decision of AG v K [2016] JRC 158, in which the Superior Number of the Royal Court elected to depart from previous sentencing policy in relation to sexual offences committed against children.  Since then, the Royal Court has also departed from the Millberry guidelines in rape cases (referred to at paragraph 44 of the decision in K and subsequently in the case of AG v Vieira [2021] JRC 293 and other recent decisions) so as to result in a general increase in sentences imposed in relation to all contact sexual offences.

39.     As referred to above, Jersey is its own sentencing jurisdiction, and the Courts of the Bailiwick are free to set their own levels of sentence.

40.     In the case of AG v K, Commissioner Sir Michael Birt said

"The courts of this Bailiwick are free to set their own sentencing levels; they are not bound by the sentencing levels of any other jurisdiction including England and Wales.  It follows that they are not bound by any guidelines issued by the Sentencing Council of England and Wales.  However, as the cases above also suggest, it is often helpful to look at sentencing practice in another jurisdiction, particularly a larger one where more cases are likely to arise.  Having looked at the sentencing levels in an appropriate other jurisdiction, it is then for the courts of this Island to decide whether they find such sentencing levels helpful or not.  Applying what the Guernsey Court of Appeal said in Wicks, where the elements of the offence in question are comparable in the two jurisdictions and the maximum sentence of the offence is also comparable, the courts of this Bailiwick may well derive considerable assistance from the sentencing practice applied in England because of its larger size and the greater number of cases which will come before the courts of that jurisdiction."

41.     The Superior Number in AG v K rejected the submission that a previous decision of the Court of Appeal in Da Graca v AG [2006] JCA 038 was a guideline case which was binding on the Royal Court.  However, the Court went on to say:

"67.  We would add that even if, contrary to our view, Da Graca is to be treated as a guideline case, it would, in our respectful view, be open to the Superior Number to suggest new guidelines if satisfied that there had been a compelling change of circumstance. In State of Qatar y Al Thani [1999] JLR 118 at 126, the Court considered the doctrine of precedent in this jurisdiction and held that the doctrine of stare decisis as expounded by the English courts was not part of the law of Jersey. However it went on to say:-

           "A hierarchical structure of courts requires that deference be accorded by lower courts to higher courts. Even in France judges of lower courts will in practice follow the decision of higher courts in most cases. This court is generally bound by the decisions of the Court of Appeal and of course, as it always has been, by the decisions of the Judicial Committee of the Privy Council sitting on appeal from the courts of this jurisdiction. We qualify the proposition only because, in our judgment, it is open to the Royal Court, as it would be to a Scottish court, to decline to follow a decision which has been invalidated by subsequent legislation or some such compelling change of circumstance."

As the Court of Appeal said in Styles v AG [2006] JLR 210 at para 80, the determination of sentences in serious criminal cases rests primarily with the Jurats. They form a wide spectrum of local opinion and, as the Privy Council indicated in the passage from Milton cited at para 58 above, are in the best position to assess the appropriate tariff for Jersey. In our judgment, in the rare case where this Court is satisfied that there has been some compelling change of circumstance, it is open to the Court to adjust a guideline laid down by the Court of Appeal if satisfied that this is required; indeed the Attorney General indicated that he considered it was this Court's duty to do so. The difficulty with leaving it to the Court of Appeal would be that it might be some time before a suitable case was brought by an appellant who considered he had been sentenced to too severe a sentence and the alternative of leaving the Attorney General to refer a sentence which he considered unduly lenient to the Court of Appeal would be equally unsatisfactory and uncertain. We emphasise however, that should such an event occur and should the Court of Appeal subsequently reject this Court's view and reaffirm the original guideline, this Court would thereafter be duty bound to follow the re-iterated view of the Court of Appeal. In our judgment, the fact that the sentencing policy in England for offences of rape (upon which the current Jersey sentencing policy is based) has changed is a 'compelling change of circumstance' such as to make it appropriate for this court to depart from the decision of Da Graca (if, contrary to our view, that decision is regarded as laying down a guideline)."

42.     We endorse these observations, which were not subject to adverse comment when the case of K v AG and AG v F [2016] JCA 219 was subsequently considered by the Court of Appeal.  It is open to this Court to adjust a guideline laid down by the Court of Appeal if it is satisfied that it is required.  Indeed, the Court is under a duty to do so.

43.     The Court in AG v K was quite right to observe that the difficulty with leaving such a matter to the Court of Appeal would be that it might be some time before a suitable case came before that Court, leaving this Court with no option but to sentence a defendant to a sentence that was in its opinion too severe. 

44.     The Court, in AG v K, referred to the decision of the Court of Appeal in Styles v AG [2006] JLR 210 at paragraph 80.

45.     In Styles v AG, the Court of Appeal made the following important observations:

"78 It seems to us that, besides the States, which can, if they see fit, legislate, there are three potential sources of impetus for revision in this jurisdiction: the Attorney General, the Royal Court and the Court of Appeal.

.....

80 The unwritten constitution of Jersey vests the determination of sentences in serious criminal cases in the Jurats. It would be open to the Superior Number of the Royal Court to have indicated, through the Commissioner, on the sentencing of these applicants that the Campbell guidelines have, in its view, become outdated. Although this course was urged on the Royal Court on the applicants' behalf, the Commissioner made it clear in his sentencing remarks that the Royal Court considered the Campbell guidelines to be, as the Commissioner put it, correct.

81 We accept that this court has power to embark on a revision of guidelines off its own bat. However, we consider that, in the absence of a supporting signal from either the Attorney General or the Royal Court, this is something that this court should be slow to do. The reason is that both the Attorney General and the Jurats are far better placed than is this court to judge whether consideration should be given to revision. With the exception of the Bailiff and the Deputy Bailiff, the judges making up the Court of Appeal do not reside in Jersey and are not as familiar with the social and penological issues here that bear on sentencing policy. It was recognized by this court in Campbell (7) (1995 JLR at 140) that Jersey, as a separate jurisdiction, is free to set its own sentencing levels. As Neill, J.A. said in Att. Gen. v. Pagett (4) (1984 J.J. at 65):

           ". .. [T]he Royal Court sitting in Jersey will be aware of current attitudes here to sentencing and will know, in particular, what sort of crimes are prevalent and for what crimes it is desirable to retain a severe deterrent sentence."

           This could also be said of the Attorney General.

82 Adopting this approach, we do not consider that the imposition of sentences in drug trafficking cases which are much longer than those imposed in the United Kingdom and are different in their proportions to sentences imposed in respect of other crimes is intrinsically objectionable. By logical extension, we cannot say that the consequent driving up of prices is objectionable either and, accordingly, we decline to initiate the process of review."

46.     The current sentencing regime for dealing with the offence of drug trafficking, driven by a need to punish offenders and thereby deter others, originated as a consequence of the determination of sentences by the Jurats (see the judgment of Bailhache, Bailiff giving the judgment of the Court of Appeal in Campbell v AG [1995] JLR 136), and it is plain from the observation at paragraph 81 of the decision of the Court of Appeal in Styles that the Court of Appeal will only revise its guidelines at the instigation of the Attorney General or the Jurats of the Royal Court in the form of the Superior Number.  The Court of Appeal was quite right to observe that the Jurats are in a better place than the Court of Appeal to judge whether any consideration should be given to revision.  It is the Jurats who are familiar with the social and penological issues that bear on sentencing policy.  They will also be aware of the circumstances in which it is appropriate to retain a severe deterrent sentence and when such an approach is not appropriate.  It is clear from the decision in Styles, that the Court of Appeal will not review sentencing guidelines in this area without an indication that they want revision - such indication must come from the Jurats.

47.     Finally, in K v AG [2016] JCA 219, WJ Bailhache, Bailiff, giving the judgment of the Court of Appeal, noted at paragraph 28(i):

"(i)        The Island's different sentencing jurisdiction is a part of its constitutional history, marked by the structural differences between the application of the criminal law in Jersey from that in England and Wales.  The length of sentence is determined by Jurats elected to that office by an electoral college comprising States Members and practising lawyers.  The Jurats are drawn from a wide range of skill sets within the Island and can be expected to represent a reasonable cross-section of the Island community.  Secondly, the sentencing approach of the Royal Court is influenced by the conclusions of Her Majesty's Attorney General which are presented not as part of the prosecution calling for the most severe sentence, but as a preliminary quasi-judicial opinion designed to ensure that the Royal Court has the key guideline cases referred to it and is consistent in its approach."

48.     Accordingly, it is clear from the above authorities that the approach to sentencing policy is quite different in Jersey from that which pertains in England and Wales.  In England and Wales, sentencing policy is generally set by the Court of Appeal or the Sentencing Guidelines Council and followed by inferior courts.  In Jersey, sentencing policy will generally be set by the Superior Number of the Royal Court, although the Court of Appeal may wish to interfere in decisions of the Royal Court in order to ensure consistency or to ensure compliance with guidelines which it has set.

49.     In those circumstances, the Superior Number is entitled to review and revise sentencing policy.  The decision in Styles does not suggest that there needs to be "a compelling change of circumstance" and it would be inappropriate in our view for there to be such a hurdle.  It is sufficient, in our opinion, for the Superior Number to identify a reservoir of cases in which the current policy has the capacity to result in the imposition of sentences which the Superior Number regards as inappropriate or unjust.  In any event, over 20 years has passed since the Rimmer guidelines were produced and it is sensible to stand back and reflect upon the extent to which they are appropriate in current circumstances.  In particular, the guidelines were set against a background of the concern that defendants in such cases seek to minimise their role and involvement which would include suggesting that the quantity of drugs that they had imported or of which they were in possession was for personal use.  However, as the letter from Customs and Immigration dated 10 May 2024 produced for the purposes of this hearing indicates, modern investigative techniques include accessing mobile telephones, even when the access codes are not provided by a suspect, downloading and analysing the data and evidencing the results.  This material frequently, if not usually, evidences the offender's involvement in the trafficking offence in question.  Offenders who refuse to provide their access codes, provided that they are then subject to a Notice to supply the same under the relevant legislation, will be committing a separate criminal offence which is likely to be the subject of a consecutive sentence upon conviction and in any event the Court is likely to draw an adverse inference from a failure to provide such access in appropriate circumstances.  These are changes to the landscape that existed when Rimmer was decided.

Should the Royal Court elect to revise or amend sentencing policy in this area?

50.     In the earlier case of AG v K, the Court convened more than five Jurats to compose the Superior Number in order to consider what amounted to a revision of existing sentencing policy.  The present case was presided over by seven current Jurats, including one Lieutenant Bailiff.  The Jurats unanimously decided that it was appropriate for the Superior Number to revise / amend the existing guidelines in a limited respect.  We were assisted by responses from various stakeholders when considering this matter.

51.     This material was obtained at the direction of the Court.  The statement from the Jersey Customs and Immigration Service ("JCIS") make clear that they already draw a distinction between investigating importations of "commercial quantities" of controlled drugs and "what is considered to be a personal amount".  The latter category will not result in an "in depth investigation".  The letter from JCIS correctly draws a distinction between a regular cocaine user visiting the island in possession of five grams of cocaine for personal use, and a person arrested with £500 in cash and five one-gram deal bags of cocaine who may be regarded as a supplier.  JCIS drew our attention to the English guidelines and noted that the nature of the supply was sometimes a more significant factor than the amount of the drug concerned.  JCIS rightly observes that "maintaining a strong deterrent against the importation of any amount of Class A drugs heavily contributes to the safety and low crime rate the island benefits from".  JCIS goes on to say that "JCIS will offer possession charges where there is evidence to show that there was no intention to import the drugs that are discovered on arrival".  However, the determination as to the correct charging decision is one for the Centenier, under the overall supervision of the Attorney General.

52.     In a supplemental letter, JCIS said:

"Whilst it is not the remit of JCIS to determine sentencing the observations made are that allowing flexibility to sentence for up to seven years for ten doses or less of Class A drugs would be commensurate with current sentencing and sends a strong message to those who are considering the importation of any amount of Class A drugs."

53.     The response from the States of Jersey Police ("SOJP") says:

"It is fair to say that you cannot treat all Class A drugs the same.  Each type of Class A drugs have different effects on the island's economy and community, whether it be health, acquisitive crime or public disorder."

54.     The letter goes on to indicate the particular danger that heroin presents to the island owing to its addictive nature and connection with acquisitive crime.  Further, Jersey is a "last port for importation distribution, which sometimes sees heroin which has been bulked with other commodities.  This can cause pressures on the health and ambulance service as there is sometimes an increase in overdoses and on the rare occasion death".

55.     The view of the SOJP is that any heroin user found with more than one £50 bag going to a weekend event would be in possession of drugs to supply.  Under certain circumstances, it may be accepted that possession of slightly greater amounts of cocaine or MDMA may be for personal use.  The SOJP was unable to support a relaxation of the sentencing guidelines as it takes the view that the current "robust sentencing stance" acts as a deterrent to those who wish to import or distribute Class A drugs on the island.

56.     The Probation Service and Alcohol and Drug Service would welcome more flexibility in sentencing in relation to those who are physically dependent on substances and caught in a cycle of offending and dependence, by guiding those individuals to meaningful treatment as opposed to a custodial sentence.  The Probation Service says that women and men are impacted differently by drugs policy, and that the impact of a drug conviction carries a double penalty for women - many lose their employment, accommodation and the care of their children.  The Probation Service has the capacity to supervise more offenders in this area, including treatment orders involving supervision, advice and testing. 

57.     The Director of Public Health, Professor Bradley, says that criminalisation of personal drug use has resulted in unintended adverse health and social consequences.  Imprisonment from drug trafficking had disproportionately affected women as they are frequently the subject of exploitation leading to their offending.  Professor Bradley notes that the law does not distinguish / recognise social / non-commercial supply or importation for personal use.  Children or young people have often said that their drugs were intended for friends in the hope of lessening their sentence - ultimately resulting in a charge of intent to supply and a Court appearance, rather than a parish hall enquiry. 

58.     Public Health officers ran a workshop for the British Irish Council in which concerns were raised about the length of sentences for drug offences and the impact of Court appearances, particularly in smaller jurisdictions or communities lacking anonymity.  The various consequences in this regard were set out in Professor Bradley's letter.  Professor Bradley refers to a marginalised group of islanders, including people who are actively dependent on drugs, who are more likely to use drugs more often and, if importing for personal use, run a high risk of being caught, and children and young people who purchase drugs via the internet and social media. 

59.     Professor Bradley says that Public Health Jersey would support, inter alia, imprisonment as a last resort only, especially in cases where adults have children, as parental incarceration is an additional adverse childhood experience (on top of household substance abuse) and support alternative sanctions for personal drug use applied as part of a framework which encourages access to health and social services so as to not increase the risk of further offences.  Public Health support a differentiation between personal use and commercial drug activities which could be achieved through indicative quantity thresholds, as well as a full assessment of the individual's particular circumstances.

60.     We were also assisted by evidence from Dr Tanya Engelbrecht, consultant psychiatrist in substance misuse, to the effect that the Alcohol and Drugs Service Pathway Multidisciplinary Group had met and the consensus was that up to ten grams of cocaine powder can be regarded as being for personal use, although some substance misuse case workers had seen clients reporting such usage during a single day.  Given further notice, Dr Engelbrecht would be able to give us equivalent personal use figures for MDMA, LSD and ecstasy.

61.     The Attorney General's written submissions observed that the existing Court of Appeal guidelines:

"...might benefit from clarification by the Court of Appeal that sentencers are able to exercise a greater degree of discretion when dealing with very small amounts of Class A drug imported in circumstances where, on the evidence, the assertion that the drug was entirely for the personal consumption of the importer, or, at most, for sharing with a single and close personal associate of the importer, cannot be disputed."

62.     The Attorney General went on to say it is arguable that the judgments in Rimmer and Bonnar either understate or do not state with sufficient clarity the degree of discretion open to sentencers, and may "in consequence serve to inhibit sentencing discretion at the bottom end of Class A drug trafficking such that too constrained application of those guidelines may be capable of working injustice in individual cases".

63.     The Attorney General observed that there may be a public interest in addressing through a non-custodial disposal drug use by Jersey residents importing for personal consumption, and dealing summarily with non-Jersey resident importers of small quantities for their personal use whilst visiting Jersey through a financial penalty imposed by the Magistrate, together with an additional possibility of them being bound over to leave the island and not return for a stipulated period.

64.     The Attorney General submitted that importing for the purposes of onward supply, whether commercial or any wider scale than sharing with a single, close personal associate should continue to be considered in the context of the guidelines as presently drawn, which is to say, they should continue to sit within the lowest starting point band of seven to nine years, albeit noting that sentencing is an art, not a science, and an act of discretion in all instances, subject to review where necessary.

65.     We were informed that in the Isle of Man the High Court of Justice has considered the cases of Rimmer and Bonnar, and adopted lower starting points of five to eight years in the bands of 1 to 20 grams of Class A, and 1 to 500 tablets respectively (Caldwell-Camp v Attorney General (24 March 2005)).  In England and Wales, the guidelines are of an entirely different nature, and although we do not propose to set out the sentencing levels, it is appropriate to note that the guidelines for England and Wales give equal weight to "culpability" and "harm".  The latter is measured by the quantity of the drugs.  Culpability is demonstrated by the offender's role which is categorised as follows:

(i)        Leading role:

(a)      Directing or organising buying and selling on a commercial scale;

(b)      Substantial links to, and influence of, others in a chain;

(c)      Close links to the original source;

(d)      Expectation of substantial financial or other advantage;

(e)      Use of business as a cover;

(f)       Abuse of position of trust or responsibility;

(ii)       Significant role:

(a)      Operational or management function within a chain;

(b)      Involving others in the operation whether by pressure, influence, intimidation or reward;

(c)      Expectation of specific financial or other advantage, save where this advantage is limited to meeting the offenders own habit;

(d)      Some awareness and understanding of the scale of the operation.

(iii)      Lesser role:

(a)      Performing a limited function under direction;

(b)      Engaged by pressure, coercion, intimidation, grooming and / or control;

(c)      Involvement through naivety, immaturity or exploitation;

(d)      No influence on those above in a chain;

(e)      Very little, if any, awareness or the understanding of the scale of the operation;

(f)       If offender's own operation, solely for own use;

(g)      Expectations of limited, if any, financial or other advantage - including meeting the cost of the offender's own habit.

66.     Aggravating features include relevant previous convictions, offences committed on bail and a list of other aggravating factors, including exploitation of children, using persons under eighteen to deliver drugs to a third party, and use of sophisticated methods or technologies in order to avoid or impede detection.

67.     Factors reducing seriousness or reflecting personal mitigation include:

(i)        no previous convictions or no relevant previous convictions;

(ii)       remorse;

(iii)      positive character and / or exemplary conduct;

(iv)     determination and / or demonstration of steps having being taken to address addiction or offending behaviour;

(v)      age and / or lack of maturity - which may be applicable to offenders aged eighteen to twenty-five;

(vi)     mental disorder or learning disability;

(vii)     sole or primary carer for dependent relatives;

(viii)    difficult and / or deprived background or personal circumstances;

(ix)      prospects of or in work, training or education.

68.     These matters are in addition to the reduction in sentence applicable to a guilty plea.

69.     We consider that these factors are generally of utility when assessing an offender's culpability, although the extent to which these factors are all applicable in cases determined in Jersey will depend on the discretion of the Court on sentence.  For example only, the Royal Court has to date been reluctant to treat evidence that the offender was involved in the offences by virtue of pressure, intimidation or coercion falling short of duress as a mitigating factor, on the footing that that is an occupational hazard which those who involve themselves in such offending expose themselves to.

70.     Neither Scotland nor Northern Ireland have sentencing guidelines.  Guernsey has guidelines similar to Jersey, although the Attorney General submitted that the decision of the Guernsey Court of Appeal in Barras v Law Officers of the Crown [2021] GCA 045 is suggestive of wider discretion.  At paragraph 33, the Court of Appeal in Barras said:

"The decision in Richards is the leading authority within the Bailiwick Islands in relation to the appropriate starting points for sentences in cases involving the principal drug trafficking offences: importation, supply and possession with intent to supply. Speaking for an enlarged Court of five judges, the then President (Carey P.) prefaced his explanation for the guidelines by stressing their general purpose (at paragraph 5):

           "It cannot be stressed too strongly that this Court is not attempting to establish for the Royal Court some sort of inflexible code, which covers all of the issues involved in sentencing for such offences, some of which must as yet be unknown and incapable of anticipation. These are general guidelines only. Sentencing is always a matter for the court's discretion. It is an art and not a science. It should from now on be unnecessary for counsel to refer the court to earlier cases in the Guernsey Courts.""

71.     We regard these observations as helpful and we adopt them. 

72.     At the hearing, the Solicitor General, on behalf of the Attorney General, made a number of helpful additional observations, including the following.  First, he noted that while the Court had given effect to the Rimmer guidelines for over twenty years, there was "scope at the bottom end for a fresh look at the policy and the guidelines".  This was particularly in respect of small amounts of drugs that were imported for personal use or, at the most, shared with one other person closely associated with the offender.  The Solicitor General said this should not extend to general social supply, but be confined to "close domestic supply".  The Solicitor General said the Attorney General considered that the seven-year starting point "is capable of working injustice in certain cases" and that a limited departure from the rule in cases where it was warranted would permit different outcomes.  The Solicitor General said the focus should be on small amounts imported for personal use, and if the Royal Court was able to deal with such cases in a different way from that suggested by the Rimmer guidelines then, in the case of Jersey residents, it would be able to impose a treatment order, and in the case of visitors to the island, the Magistrate might be able to fine and bind over offenders not to return to the island for a specified period.  Nonetheless, the Attorney General's view was that subject to these caveats, the seven-year starting point should not be "diluted" in circumstances where there was any question of commercial supply. 

73.     The Solicitor General also said that there was a contrast between the inflexibility suggested by paragraph 34 of the judgment of the Court of Appeal in Rimmer and the "more nuanced approach" suggested by the more recent decision of the Guernsey Court of Appeal in Barras, the Solicitor General noting that the judges in the case of Barras are or were until recently judges serving on the Jersey Court of Appeal also.  Other paragraphs in that judgment were also drawn to our attention, which were said to be suggestive of a more generous and perhaps more accurate judicial approach to the exercise of the discretion, and that would, at first glance, be permitted by certain aspects of the decision in Rimmer.  The Solicitor General said that various sentencing decisions including some of those referred to above in this judgment were examples of the Court's exercise of discretion, and that the Court should bear in mind its duty to do justice in each case and recall that the guidelines are not inflexible.

74.     Having regard to the circumstances of this case and the material referred to above, the Jurats have unanimously concluded that it is appropriate and necessary for there to be a revision / amendment to the existing guidelines in relation to those offenders convicted of importing offences where the amounts of the drug in question are in the lowest category in order to give the Court greater flexibility in dealing with individual offenders.  Such offending may not warrant a seven-year starting point.  It is not appropriate for us to set out the circumstances which might warrant a lesser starting point, although this case is certainly one of them.  It would be for the Court to determine the appropriate starting point, within this reservoir of cases, bearing in mind that in the case of offenders with previous trafficking offences recorded against them and / or where there is clear evidence of intended commercial supply, the seven-year starting point may well still be appropriate.

The terms of a revision / amendment to existing policy

75.     We have considered this matter with care, and we have unanimously concluded that for weights of Class A drugs up to 10 grams, the starting point henceforth will be one to seven years imprisonment.  The guidelines in Rimmer have been supplemented to this extent only.  Although it will be necessary for there to be a similar exercise carried out in respect of the starting points for drugs carried or sold in tablet or capsule form or other units, we felt we had insufficient evidence before us to determine the upper number of units which would be subject to the starting point of one to seven years imprisonment.  That will need to be determined by another Superior Number on another day, with sufficient evidence before it to make such a decision.

76.     To the extent that it is necessary for the Superior Number to identify a compelling change in circumstance permitting the Royal Court to adjust a guideline laid down by the Court of Appeal, we think that there are three reasons for so doing. 

77.     First, the lower band (at least) admits for insufficient exercise of the Court's discretion, which is inconsistent with the recent decision of the Guernsey Court of Appeal in Barras. 

78.     Secondly, the lower band was set at a time prior to the investigative authorities enjoying the investigative techniques referred to at paragraph 49 of this judgment, which permit, in most cases, the Crown and the Court to understand with clarity whether or not the offender has imported drugs for exclusively personal use and / or extremely limited supply to those close to the offender on a non-commercial basis. 

79.     Thirdly, the guidelines developed in Campbell and Rimmer were principally designed to deal with trafficking on a commercial basis, as the circumstances of the cases before the Court of Appeal in Rimmer and the comments of the Court of Appeal in these cases demonstrate.  They were not designed for cases such as this.  Indeed, at paragraph 18(a) of the judgment in Rimmer, the Court noted that the guidelines in Campbell provided "the starting point for any offence of trafficking in Class A drugs on a commercial basis could seldom be less than seven years imprisonment....".  There is no clear indication in the case of Rimmer that the guidance was intended to apply in cases such as this, although subsequent decisions have indicated that the guidelines do extend to importations for personal use.  However, when the Court in Rimmer said at the end of paragraph 34 of the judgment that "In general the Campbell guideline of a minimum starting point of seven years should be adhered to by the Courts of Jersey", it was referring to a decision which expressly referred to the trafficking of Class A drugs on a commercial basis. 

80.     Even if Miss Grzegorska had contested this matter and been convicted after trial, was not a woman of good character and did not have the mitigation available to her, it would not have been appropriate for her to be sentenced, accepting as the Crown did that she was importing these drugs for her personal use only, to seven years imprisonment or a sentence approaching that level.

81.     That is not to say that the modification to the guidelines will result in a starting point of less than seven years imprisonment in cases of importation of drugs for the purpose of commercial supply, or even for (for example, in the case of a quantity of heroin) personal use in certain circumstances.  But the Court will have a discretion which, in our view, is warranted by the Court's experience of this and other similar cases over the previous years.  The Jurats of the Royal Court can be entrusted to select the appropriate starting point in such cases.

82.     Further, the second revision we wish to make to the guidelines is to depart from the remark made in paragraph 34 of the judgment in Rimmer (see paragraph 18 above), to the effect that it is only in "exceptional cases" in which a starting point may be above or below the band otherwise appropriate.  There are two reasons why, in our view, this is an incorrect approach.  First, as referred to at paragraph 70 (the Guernsey decision in Barras), and as contended for by the Solicitor General (see paragraph 73 above), the guidelines are not an inflexible code.  These are general guidelines only.  Sentencing is always a matter of discretion.  Accordingly, the Court, in its discretion, may sentence a defendant in the particular circumstances of the case to a sentence above or below the bands referred to in Rimmer and Bonnar.

83.     The second consideration which leads to the same conclusion is that any other approach fails to give sufficient regard to the fact that the defendant's role and involvement in the offending must be given, depending upon the circumstances on the case, at least sufficient weight as the quantity of the drugs concerned.  We have summarised the relevant culpability, aggravating and mitigating factors drawn from the English guidelines at paragraphs 65, 66 and 67 above, and those considerations may, in the Court's discretion, result in a sentence above or below the boundaries suggested by the guidelines in Rimmer and Bonnar.

84.     This approach will allow the Court to determine starting points which pay regard to the guidelines, but recalls that they are simply that; guidelines which are based only on the quantity of the drug concerned and which pay no regard to the offender's role in the commission of the trafficking offence concerned.

Applying the extended guidelines in the circumstances of this case

85.     We had regard to Miss Grzegorska's guilty plea, genuine and heartfelt expression of remorse, previous good character, evidence of a very strong work record and an excellent report from the prison authorities in relation to her time in custody.  We note from the pre-sentence report that the risk of re-offending in her case is very low, and that she has a supportive partner and that her daughter, aged eleven, who depends upon Miss Grzegorska, has written to the Court in terms speaking highly of her as a parent.  Further, we note that Miss Grzegorska was fully prepared to be sentenced by the Superior Number in April, but the case was adjourned for further enquiries, through no fault of her own - the outcome of those enquiries evidencing that she was indeed importing this relatively small quantity of Class A drugs on a non-commercial basis.

86.     Nonetheless, all importations of Class A drugs into Jersey are serious and even importations of Class A drugs in a small quantity for the purposes of personal use will generally pass the custody threshold.  The Jurats fixed the starting point in this case as eighteen months imprisonment.  Having regard to Miss Grzegorska's guilty plea and her other personal mitigation (which we have summarised), the sentence the Superior Number imposed was one of seven months imprisonment.  We ordered the forfeiture and destruction of the drugs.

Authorities

Rimmer v AG [2001] JLR 373. 

AG v Le Guillou [2024] JRC 010. 

Wood v AG [1994] JLR Note 15a. 

Campbell v AG [1995] JLR 136. 

Bonnar and Noon v AG [2001] JLR 626. 

AG v Le Coguiec [2017] JRC 120. 

AG v Burnside [2021] JRC 085. 

AG v Aboh [2023] JRC 249. 

AG v K [2016] JRC 158. 

AG v Vieira [2021] JRC 293. 

Da Graca v AG [2006] JCA 038. 

K v AG and AG v F [2016] JCA 219. 

Styles v AG [2006] JLR 210. 

Caldwell-Camp v Attorney General (24 March 2005). 

Barras v Law Officers of the Crown [2021] GCA 045.