Scottish High Court of Justiciary Decisons

Ekkebus & Anor v. Her Majesty's Advocate [2002] ScotHC 77 (18 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hamilton Lord Wheatley Lord Drummond Young	Appeal Nos: C977/00 C976/00 C983/00 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in NOTE OF APPEAL AGAINST SENTENCE by CHRISTIAN EKKEBUS, ALBERT HULST and ARJEH VAN DIJK Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: Wheatley, Solicitor Advocate; Anderson, Edinburgh: A. Lamb; Lindsay & Kirk: J. Reilly; George Mathers

Respondent: P. Hammond, A.D.; Crown Agent

18 June 2002

1. The three appellants each pled guilty to an amended charge in the following terms:

"Between 24 May 20 and 24 June 2000, both dates inclusive, on the ship 'Red Scorpion' being a ship to which section 19(1) of the Criminal Justice (International Co-operation) Act 1990 applies, on the Atlantic Ocean near to Spain, on the North Sea, on the territorial waters of the United Kingdom in the Fair Isle Channel, in International Waters at 57 degrees, 38.89 minutes North, 001 degrees 50.65 minutes East and elsewhere in International Waters you were knowingly concerned in the carrying or concealing of a controlled drug, namely cannabis resin, a controlled drug of Class B as specified in Part II of the Misuse of Drugs Act 1971, knowing or having a reasonable grounds to suspect that said drug was intended to be imported into the Netherlands contrary to the law of the Netherlands: CONTRARY to the Criminal Justice (International Co-operation) Act 1990, section 19(2)(b)".

2. Section 19(2) of the Criminal Justice (International Co-operation) Act 1990 is in the following terms:

"A person is guilty of an offence if on a ship to which this section applies, wherever it may be, he --

...

(b) is in any way knowingly concerned in the carrying or concealing of a

controlled drug on the ship,

knowing or having reasonable grounds to suspect that the drug is intended to be imported ... contrary to Section 3 (1) of the Misuse of Drugs Act 1971 or the law of any state other than the United Kingdom".

3. Section 19(4) of the Act specifies the maximum penalties that may be imposed for contravention of section 19. In the case of a Class A drug, the maximum sentence of imprisonment that may be imposed on conviction on indictment is imprisonment for life. In the case of a Class B drug such as cannabis resin, the maximum sentence of imprisonment that may be imposed on conviction on indictment is 14 years.
4. The appellants' guilty pleas were tendered in the course of their trial following the leading of the whole of the evidence in the case. The trial judge sentenced each of the appellants to 14 years imprisonment, the maximum sentence available under section 19.
5. The evidence led at the trial was as follows. On 21 June 2000 a yacht, the "Red Scorpion", registered in Valetta, Malta, was sighted in the Fair Isle Channel, in international waters, by a Customs cutter, the "Searcher". The second appellant, Hulst, was her skipper, and her crew consisted of the other two appellants. All three are experienced sailors. They are citizens of the Netherlands. The vessel was flying the German flag, and her name and port of registration were partially concealed by a towel. Customs officers nevertheless suspected that she was registered in Valetta, and she was challenged by radio. Hulst confirmed her Maltese registration, and stated that her Maltese flag had been lost. He also stated that the yacht had left Bremerhaven ten days previously, had sailed twice round Fair Isle, and was heading back to Germany. He asked permission to take a photograph of the Customs cutter.
6. Permission was obtained from the Maltese authorities to search the "Red Scorpion", and on 22 June Customs officers boarded her to carry out a search. In cabins below decks they discovered bales which they suspected to contain drugs. Before the Customs officers went on board, Hulst had instructed Van Dijk to go below, remove the ladder which gave access below decks and lift some decking and the engine cover to give the impression that work was being carried out in an effort to discourage the Customs officers from going below. This ruse was not successful.
7. After the bales were discovered, the "Red Scorpion" was escorted by the "Searcher" to Aberdeen. There the cargo was off loaded. It was found to consist of 285 bales of cannabis resin weighing approximately 8 1/2 tons. This was the largest seizure of cannabis resin ever made in Scotland. The street value in Scotland of the cannabis, if broken down into street deals, was agreed by both a drugs squad officer from Aberdeen and a defence witness to be £43 million. The defence witness expressed the opinion that the purchase price of the cargo in Morocco would be in the region of £4 million and that, if sold in bulk to a wholesaler in the Netherlands, it would have obtained a price of approximately £8 million.
8. The trial judge in his report describes the vessel's voyage as "a carefully planned enterprise". Van Dijk and Ekkebus were involved in preparing the vessel for her voyage. Van Dijk flew from the Netherlands to Lisbon, and Ekkebus was driven from the Netherlands to Lisbon by a third party. At Lisbon they joined the vessel, and both were engaged in converting a water tank and using water bottles to increase the fuel storage capability of the vessel and in ensuring that the engine was properly serviced. Counsel for Van Dijk submitted that increasing fuel storage capacity was normal before a long voyage and that the engine in fact needed servicing. Whether or not that is correct, it seems clear that the trial judge was fully entitled to conclude from the evidence that the work in question was carried out in order to prepare the vessel for a voyage carrying drugs from Morocco to Western Europe. After the work on the vessel, Van Dijk, Ekkebus and a third person sailed her from Lisbon to Huelva, where they removed railings from her side to enable the cargo to be loaded from and discharged to other vessels at sea. They then sailed from Huelva to a point off the Moroccan coast, where they were joined by another vessel. Hulst was on board that vessel, together with the cannabis resin. He had arranged for the collection of the drugs. The cargo was then transferred to the "Red Scorpion".
9. The "Red Scorpion" then sailed from Moroccan waters past Spain and Portugal, France, the United Kingdom and the Republic of Ireland, at all times remaining in international waters in the hope of avoiding detection. She required to enter British territorial waters in order to cross from the Atlantic to the North Sea, where she again returned to international waters. Ekkebus gave evidence that the route was chosen deliberately in order to take advantage of the crew's perception that the British coastline was difficult to patrol effectively. The vessel carried numerous flags from different countries; it was hoped that these could be used to deceive any Customs officers who took an interest in the vessel. The crew also sought to conceal the vessel's name and port of registration to evade identification. When challenged by the "Searcher", the crew lied about having lost their flag, about the route which they had taken and about their destination. Ekkebus also stated that the request to photograph the "Searcher" had been an attempt to divert the suspicions of the Customs officers.
10. The trial judge describes the three appellants as willing participants in the operation. He further states in his reports that it appeared from the evidence of a defence expert that it was unlikely that the Netherlands would be the ultimate destination for the drugs. The quality was such that there would be no market for them there, and the expert expressed the opinion that the most likely markets were Germany, Belgium and the United Kingdom.
11. The trial judge concluded that, having regard to the quantity of drugs involved and the evidence led, it appeared to him that the appellants were part of a gang of international drug smugglers. In all the circumstances he considered that the appropriate penalty was the maximum fixed by statute, namely fourteen years imprisonment.
12. The solicitor for Ekkebus and counsel for Hulst and Van Dijk contended that the trial judge should not have selected the statutory maximum sentence, which must have been intended for the most serious cases. They submitted that such cases would involve individuals who either had previous convictions for drug trafficking offences or were the primary organisers of a drug trafficking enterprise. The three appellants, it was said, were mere couriers in an enterprise run by others, and could not be said to be involved in any way in the primary organisation of that enterprise. The solicitor for Ekkebus and counsel for Van Dijk, in particular, stressed the minor role that those individuals played, effectively as deck hands on the "Red Scorpion". In addition, none of the three accused had any previous convictions for drug trafficking.
13. The offence to which the appellants pled guilty is subject to a statutory maximum sentence of fourteen years imprisonment. In our opinion the correct approach, in such a situation, is to regard the maximum sentence as appropriate for the most serious cases that could fall under the statutory provision in question, and to reduce the sentence by a suitable amount in cases that appear to be less than the most serious. The fact that Parliament has chosen to restrict the Court's sentencing powers to a particular term of imprisonment is clearly significant, and must be respected in the sentences that the Court imposes.
14. In the present case, the offences are obviously serious. The value of the cannabis recovered is very high indeed, and it is clear that a very substantial custodial sentence is called for. Nevertheless, it is possible to imagine cases that are more serious than the present; examples would be cases involving very large quantities of drugs where an accused has previous convictions for drug trafficking, or where it is clear that he has been one of the primary organisers of the drug trafficking enterprise. This is not such a case. Consequently we consider that the correct sentence should be somewhat less than the statutory maximum.
15. On the other hand, we do not accept the contention that the involvement of the three appellants was relatively minor. They were involved in the transportation of a very large quantity of cannabis resin. Its bulk was such that they must have been well aware of what they were doing. They were the three individuals responsible for sailing the vessel carrying the cannabis. All three clearly played a substantial part in the sailing of the vessel. Hulst was the skipper, and his counsel accepted that he would have the normal responsibilities of the master of a vessel. That obviously involves responsibility for the sailing of the vessel, and a very considerable discretion in relation to her navigation. Ekkebus and Van Dijk were subject to Hulst's orders, but they must have played a major part in the sailing of the yacht; it was accepted that on a vessel of this size they would be responsible for keeping watch. In addition, Ekkebus and Van Dijk prepared the yacht for sailing, and carried out modifications that were necessary to enable her to undertake a long voyage. Hulst had clearly accompanied the cargo from the Moroccan coast, and the defence expert indicated that he would have checked the cargo before it was loaded. All of these factors point to a high level of involvement in the drug smuggling enterprise.
16. Furthermore, we do not accept that the transportation of drugs is to be regarded as a relatively minor matter by comparison with dealing in drugs. Transportation is essential to the trade in drugs, and the sentences imposed must reflect that fact. That is particularly so where the accused is engaged in the transport of large quantities of drugs from a producing country to the United Kingdom or elsewhere in western Europe; in such a case a long custodial sentence will almost invariably be required. Moreover, section 19(2) of the Criminal Justice (International Co-operation) Act 1990 applies to persons who are knowingly concerned in the carrying or concealing of a controlled drug on a ship. It is thus aimed specifically at persons engaged in the transportation of drugs. It follows that the most serious cases, to which the maximum sentence of fourteen years imprisonment might apply, will involve persons who organise the transportation of drugs, rather than dealers. On the scale of cases involving the transportation of drugs, the present offences are relatively serious.
17. In all the circumstances we are of opinion that the appropriate sentences in the present case are twelve years imprisonment for Hulst and ten years imprisonment for each of Ekkebus and Van Dijk. We will accordingly quash the sentences imposed by the trial judge and substitute for them the foregoing terms of imprisonment. The difference in these sentences reflects the greater responsibility that Hulst undertook as skipper of the "Red Scorpion", including the duties of master of the vessel and his participation in the delivery of the cargo. Each of the sentences will be backdated, as were those imposed by the trial judge, to 26 June 2000.
18. It remains to notice a number of other arguments presented on behalf of the appellants which we do not find persuasive. It was contended on behalf of all three appellants that they were paid by means of a fixed fee for their services; others would derive the profits of the drug trafficking enterprise. On that basis it was contended that the appellants could not be said to share in the profits of the enterprise. The trial judge was accordingly criticised for assuming that the appellants would be well paid for their services. In our opinion it will usually be immaterial whether a person employed in the transportation or storage of drugs is paid by means of a profit share or a fixed fee. In either event, he receives payment from the proceeds of drug trafficking. Moreover, we are of opinion that the trial judge was fully entitled to conclude that the appellants would be paid well; it is scarcely credible that the appellants' remuneration would be that of an ordinary yacht crew.
19. Counsel for Van Dijk submitted that it was wrong to take the value of the cargo of the "Red Scorpion" at £43 million, as that represented the price that might be obtained if it were divided into street level deals. It is the normal practice of the Scottish courts to have regard to street level values in drugs cases. This enables one case to be compared with another, thus helping to secure consistency in sentencing. Moreover, the alternative to using street level values is to use the price that drugs would be expected to realise if sold by the owner at the time of seizure. The result of that would be to decrease the relative value of drugs seized from large-scale dealers, and to increase the relative value of drugs seized from street-level dealers. In our view that is plainly wrong.
20. It was argued on behalf of all three appellants that the ultimate destination of the drugs on board the "Red Scorpion" was the Netherlands. In the Netherlands, it was said, a much lesser sentence would be likely; four years was said to be the maximum sentence available for a similar contravention. It was contended that this should be reflected in the sentence imposed by a Scottish Court. This argument has been considered and rejected in a number of English cases, most recently Maguire, [1997] 1 Cr App R. (S) 130. We agree with the conclusion reached in those cases. In our opinion a Scottish court sentencing a person engaged in the transportation of drugs must do so according to the principles laid down in Scottish cases, without regard to the law or practice of any other country. We reach this conclusion for a number of reasons. In the first place, it seems just that the Scottish courts should apply consistent principles in all drug trafficking cases that come before them, because the evil done by drugs is the same wherever they are destined. In the second place, it is often impossible to be certain as to the ultimate destination of a cargo of drugs. In the present case the "Red Scorpion" was heading for the Netherlands, but there was evidence from a defence expert that the ultimate destination of the cannabis resin was likely to the Germany, Belgium or the United Kingdom. Thus applying Scottish sentencing principles will frequently be the only practical course. In the third place, a number of countries impose draconian penalties for drug trafficking offences. In some cases the death penalty is regularly used. The approach suggested on behalf of the appellants would demand that the Scottish courts impose a very severe sentence if drugs were destined for such a country. That would be unjust, and plainly contrary to Scottish notions of sentencing policy. In the fourth place, the comparison of Scottish sentences with sentences imposed in other jurisdictions is not straightforward; matters such as a release on licence must be taken into account, and in practice it would be very difficult to obtain the necessary material for a proper comparison.
21. When he imposed sentence the trial judge commented on the fact that the appellants had refused to name the persons behind the drug trafficking enterprise. Counsel for Hulst and Van Dijk argued that he was in effect treating this as an aggravation of the offence. In our opinion this argument is unfounded. It will almost invariably be relevant for a sentencing judge note whether or not the accused has co-operated with the authorities and named others involved in a drug trafficking operation. This may be relevant to mitigation. We consider that the trial judge was doing no more than noting that there was no mitigation in that respect. The solicitor for Ekkebus referred to the fact that, after the trial judge had imposed sentence, his client had co-operated with the Dutch authorities and provided certain information to them. Because such co-operation was after sentence, we do not consider it appropriate to take it into account in determining the sentence that the trial judge ought to have imposed.
22. In conclusion, we should note that certain other arguments were advanced on behalf of the appellants. We are of opinion that there was no merit in these, and we do not find it necessary to deal with them individually.