Jersey Unreported Judgments

[2010]JRC157

ROYAL COURT

(Samedi Division)

27^th August 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Fisher.

The Attorney General

-v-

Keviin Paul Proctor

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

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1).

Age:  38.

Plea: Guilty.

Details of Offence:

Postal package intercepted by Customs.  Found to contain 3.30grams of heroin which had a street value of £3,300 and a wholesale value of between £990 and £1,320.  Whilst the envelope had a false name the address was that of the defendant.  A controlled delivery and surveillance operation was undertaken.  The defendant subsequently attended at the Post Office to collect the package and provided a letter purportedly coming from the addressee.  He was subsequently arrested and admitted forging the letter to collect the package.  He claimed that a debt owed by him in the sum of £300 had been passed on and that the new owner of that debt had instructed him to permit a package to be sent to his home address which he would then leave out for it to be collected.  He had panicked when he had missed the postman and therefore forged the letter.  He thought the package contained cash.  Via counsel he subsequently admitted that whilst he thought the package contained cash he suspected that the cash was either the proceeds of drug dealing or was to be used for drug dealing. 

Initially entered a not guilty plea pending the Court of Appeal's judgment in the case of Hamilton and Owens-v-AG [2010] JCA 136A.

The Crown took a starting point of 7 years' imprisonment under the Rimmer guidelines given that this was the defendant's second "minding" offence within the space of three years.  Facts very close to the facts of his last appearance in November 2007 (see judgment AG-v-Proctor [2007] JRC 218). 

Details of Mitigation:

The Crown

Guilty plea albeit given facts inevitability about that plea.  Co-operative in interview, making admissions.  He did not have the benefit of age or good character.  A long-term addict who had struggled over the years to overcome his addiction.  Classified as being at high risk of re-offending. 

Defence

Entitled to full one third deduction for guilty plea.  He would benefit from a personalised sentence such as probation although the Court may feel that he did not benefit from previous orders.  Using time in prison constructively on enhanced wing.  Receiving bereavement counselling.  He and twin brother had suffered from a number of traumatic events over the years.  Supported recommendation of Social Enquiry Report/Alcohol and Drugs Service Report i.e. non-custodial sentence. 

Previous Convictions:

Eight convictions for a total of 25 offences including 12 previous drug offences including supplying, possession with intent to supply and possession, public order offences and motoring offences. 

Conclusions:

Count 1:

3 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Defendant to be sentenced for being knowingly concerned in the importation of a controlled drug which was heroin.  The Court's policy was well established and well known and that unless there were exceptional circumstances such offences normally warranted custodial sentences.  The Court had read the background reports etc but did not find there to be any exceptional circumstances in this case.  In principle, there had to be a custodial sentence.  The Court had taken into account the content of the letters put before it together with all the information put before it by counsel.  The court considered that the Crown had been generous in its allowance for mitigation.  He did not have the benefit of good character nor youth.  Doubts as to whether he was entitled to his full one-third for his guilty plea but the Court had taken the guilty plea as the principle piece of mitigation and had regard to the reports.  A generous allowance had been allowed by the Crown.  He should view prison as being an opportunity to rid himself of his heroin addiction.  The Court considered the Crown's conclusions both as to "starting point" and sentence to be correct.  The Court ordered the forfeiture and destruction of the drugs. 

Conclusions granted. 

J. C. Gollop, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for being knowingly concerned in the fraudulent evasion on the prohibition of the importation of a controlled drug which was heroin. 

2.        The Court's policy for this offence is well settled; unless there are exceptional circumstances a custodial sentence is to be imposed.  The Court has read carefully what is in the background reports but the Court does not find that there are any exceptional circumstances and accordingly the Court considers in principle that a custodial sentence is the right sentence to impose upon you.  The starting point of 7 years, which has been adopted by the Crown, is in accordance with authority and is taken to be correct. 

3.        In our view the Crown has been generous in its analysis of the mitigation.  You cannot rely on any previous good character because your record includes drugs convictions, including a drug trafficking conviction.  It is clearly the case that you cannot rely on youth as a factor.  The guilty plea is important mitigation.  It may not have merited a full discount but we have allowed a full discount in looking at the complete case.  We have taken into account the personal mitigation which you have and the references which have been produced.  As far as that personal mitigation is concerned, the Court notes that others have to face these problems and manage to do so without committing offences of this kind.  The personal mitigation is to be taken into account but the Court takes the view that a generous allowance has been made by the Crown. 

4.        You are to be sentenced for the offence which you have committed.  We think a prison sentence may be tackled by you as an opportunity to rid yourself of the heroin addiction you have and the Court notes, with hope and with some encouragement, that you have spent time in the enhanced wing and hopes that that continues to assist you. 

5.        In sentencing you for the offence committed, the Court considers that the Crown's conclusions are correct and you are accordingly sentenced to 3 years' imprisonment on this Indictment. 

6.        We also order the forfeiture and destruction of the drugs. 

Authorities

Rimmer-v-AG [2001] JLR 373.

AG-v-Hamilton and Owens [2010] JRC 121.

Hamilton and Others-v-AG [2010] JCA 136A.

AG-v-Proctor [2007] JRC 218.