Superior Number Sentencing -
drugs - importation - Class A
[2022]JRC208
Royal Court
(Samedi)
11 October 2022
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Before :
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Sir William Bailhache, Commissioner, and
Jurats Crill, Dulake, Hughes, Cornish and Blampied.
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The Attorney General
-v-
Rosie Massay
Sentencing by the
Superior Number of the Royal Court, following a guilty plea to the following
charge:
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1 count of:
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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). .
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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:
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Count 1:
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Starting point 11 years'
imprisonment. 7 years' and
6 months' imprisonment.
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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:
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Count 1:
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Starting point 11
years' imprisonment. 7
years' imprisonment.
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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-�The 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-�It 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-�We 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-�For 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-�We 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-�We 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-�The 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-�The 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-�Secondly, 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-�In 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-�In 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-�Accordingly, 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-�Nonetheless, 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
