Jersey Unreported Judgments

[2009]JRC240

ROYAL COURT

(Samedi Division)

10^th December 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner and Jurats Le Brocq, Le Breton, Fisher, Kerley and Allo.

The Attorney General

-v-

Marc Vere Graham

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 23^rd October, 2009, following guilty pleas to the following charges:

1 count of:	Being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  (Count 1).
1 count of:	Importing a medicinal product, contrary to Article 8(3) of the Medicines (Jersey) Law 1995.  (Count 2).

Age:  29.

Plea: Guilty.

Details of Offence:

On Thursday 16^th April, 2009, a package was intercepted at Postal Headquarters, addressed to Mark Cross, Le Clos Gossett.  This is the home address of Graham's girlfriend and mother, where he had been living for about six months.  The package held a car stereo, and concealed within the stereo were 4,622 tablets which, when analysed, were found to contain BZP.  The package was seized, and a letter sent to "Mr Cross" at that same address, notifying him that importation of BZP without licence is prohibited.  The law has subsequently been changed and BZP is now on the Misuse of Drugs register, and had that law been in effect when the Graham carried out this importation, a starting point of between four and five years would have been sought.

Two weeks' later, on Thursday 30^th April, 2009, another package was intercepted at Postal Headquarters, addressed to Mark Graham, Le Petit Marais.  This is Graham's former address.  It was found to contain a car stereo, and concealed within the stereo was a block of white powder which, when analysed, was found to be 245.98g of cocaine.

Graham, who was unemployed at the time, was observed in the area that morning, travelling in a car with a friend.  The car parked twenty yards from 32 Le Petit Marais at 09.10.  They remained in the area until 15.35, when Graham returned to his home address where he was arrested shortly afterwards.

In interview that day Graham said that he used to live at 32 Le Petit Marais, but that he had never had mail sent there and was not expecting a package.  He admitted to being a cocaine user, but denied being involved in either importation.  He said his former landlord, or a former acquaintance may have been responsible.  A further interview was conducted on 25^th June, 2009.  In it Graham admitted that "Mark Cross" was a pseudonym he used, and that an unnamed friend in Liverpool had asked him to receive the tablets, for a payment of £200. 

Several text messages recovered from Graham's phone.  One received on the date of the BZP importation read: "still no joy mate soz to pester yeah just in I'm away tomorrow evening for the weekend so it would be nice, it would be a nice treat".  Graham admitted that this would be about the importation of BZP.  A message he sent that day read: "there's none of the good stuff just waiting on a big delivery now on the others".  He confirmed that the "others" would refer to BZP, but would not say to what the "good stuff" referred.

Details of Mitigation:

Guilty plea, support of girlfriend, several references.

Previous Convictions:

Two drug-related convictions for possession and supply of Class A drugs.

Conclusions:

Count 1:	Starting point 12 years' imprisonment.  7 years' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total:  7 years' imprisonment.

Forfeiture and destruction of drugs sought.

Confiscation Order in a nominal sum of £1 sought.

Sentence and Observations of Court:

Count 1:	Starting point 12 years.  6 years' imprisonment.
Count 2:	No separate penalty imposed.

Total:  6 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Confiscation Order in the nominal sum of £1 made.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate R. J. C. Wakeham for the Defendant.

JUDGMENT

THE commissioner:

1.        This defendant is to be sentenced for the importation of a quantity of BZP which was not a controlled drug but which is sold as a substitute for ecstasy, and for the importation of 245 grams of cocaine.  The defendant knew that he was importing a prohibited drug but he asserts through his counsel that he believed that the second package would contain BZP and not cocaine.

2.        Defence counsel drew our attention to an extract from a judgment of the Court of Appeal in Selway-v-AG [2003] JCA 010 where the Court stated at paragraph 9:-

"Normally, claims of threats and erroneous belief, whilst they are accepted as part of the defendant's case, carry little weight simply because they are generally incapable of verification and available to nearly all offenders to raise.  Clearly, if there is evidence to support them, then the Court may be able to treat them meaningfully as mitigation...".

3.        Counsel submitted that the fact that Graham knew that the authorities were aware of the earlier importation of BZP is evidence that he thought that the second importation would also contain BZP.  We think that this is a slender basis for that submission.  In addition there was a text message sent by the defendant which referred to a delivery of "the other"; which he admitted was a reference to BZP, and of the "good stuff" for which no explanation was forthcoming.  We reject this submission by counsel for the defendant.

4.        The Crown Advocate has taken a starting point of 12 years which, on the authorities, cannot be faulted. 

5.        In mitigation the defendant has pleaded guilty to the indictment and was co-operative with the customs officers.  A number of very good references have been placed before us and he continues to be supported by his family.

6.        We have to punish you for this offence although we are pleased to note that you have been drug-free whilst on remand and we hope that when you come out of prison on this occasion, that you will make something of your life because so many things are going well for you. 

7.        We are going to allow slightly greater allowance for the mitigating factors than was allowed by the Crown Advocate and the sentence of the Court is that you will go to prison for 6 years.

8.        We order the forfeiture and destruction of the drugs.

Authorities

Selway-v-AG [2003] JCA 010.

Rimmer-v-AG [2001] JLR 373.

Campbell-v-AG [1995] JLR 136.

Bray-v-AG 2000/16.

Valler-v-AG [2002] JLR 383.