Jersey Unreported Judgments

[2011]JRC029B

ROYAL COURT

(Samedi Division)

1^st February 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle, Le Breton, Morgan, Fisher and Nicolle.

The Attorney General

-v-

Craig Alan Lester

Robin William Luke Hart

Mark Oliver McKenzie

Donald McKenzie

Sentencing by the Superior Number of the Royal Court, following guilty pleas to the following charges:

Craig Alan Lester

1 count of:

Conspiracy to commit a statutory offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999) contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 2).

Age:  40. 

Plea: Guilty. 

Details of Offence:

Package delivered to a church via the postal system found to contain 1.4 kilograms of cocaine.  Police commenced investigation which eventually led to the identification of four defendants.  They were put under surveillance etc.  Hart was a person who identified a derelict property and passed on the address to Lester.  A "dummy package" was sent from Liverpool by Mark McKenzie (his fingerprint is found on the package) addressed to the derelict property.  Hart identified the package and does not deliver it to the address but disposed of it in a bin where it was retrieved by the Police.  Hart identified a second derelict property and again passed the information on to Lester.  Lester provides £3,000 to Donald McKenzie who took that sum to Liverpool.  Donald McKenzie arranged for his wife to also travel to Liverpool carrying £18,000 in cash.  The package addressed to the second derelict property was sent in the post from Liverpool.  Lester and Hart were arrested when Hart was about to hand the package to Lester. 

The package was found to contain 241.07 grams of heroin which had a Jersey street value of at least £19,280.  Upon analysis cocaine was found to have a purity level of 73% (Defence) and 76% (Crown).  Cocaine of this quality in the UK would have an approximate value of £18,000 to £20,000.  Disregarding purity level 241.07 grams in the UK would have a value of between £6,800 and £8,500. 

Once a search of Donald McKenzie's home address was undertaken a safe containing £63,260 in cash was found.  Donald McKenzie subsequently admitted in interview that a large portion of these funds were "dirty money". 

Following dicta in Rimmer the Crown took an increased "starting point" due to the high purity level.  A "starting point" of 13 years' imprisonment was taken for Lester, Mark and Donald McKenzie and a "starting point" of 11 years' imprisonment was taken for Hart. 

Details of Mitigation:

The Crown

Point of contact in Jersey and vested interest in the importation as he provided £3,000 towards the purchase price.  Had used friendship with Hart by involving Hart in conspiracy; guilty plea; historical criminal record and the Crown treated him as a man of good character.  Letter of remorse and character references.  Personal mitigation available from the Social Enquiry Report. 

The Defence

Accepted full responsibility for his part in conspiracy.  Was not aware of purity but was told that it would be good quality.  Was to take 50 grams of the importation and pass on the rest to another conspirator.  Developed addiction in consequence of personal circumstances.  Guilty plea; deep remorse; a dutiful and supportive caring father.  Defence suggested a lower "starting point" and greater credit for mitigation. 

Previous Convictions:

Grave and criminal assault and motoring - historical -Crown treated as a man of good character. 

Conclusions:

Starting point 13 years' imprisonment.

Count 2:

6 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Four defendants to be sentenced for conspiracy to import cocaine to which they all pleaded guilty.  It was a carefully considered importation with a trial run using a fictitious package being sent to a derelict property followed by an importation of 241.07 grams.  Heavy use of telephones - Lester had seven mobile phones.  Mark McKenzie was aware of the risk of information being discovered on phone as he dismantled phone and then disposed of parts.  Cocaine was of a very high level of purity.  It was not the 1% or 2% usually seen but rather 73% to 76%.  The Court quoted with approval from Rimmer as to how it should approach the "starting point" where drugs were of a high purity level (see paragraphs 29 of the Rimmer judgment).  The Court noted that there was a cross over in the "starting point" for this level of cocaine but this was so as to cater for differing roles of defendants.  On the facts of this particular case it was right for the "starting point" to be increased due to the purity level and the Court agreed that the Crown had taken the correct "starting point" of 13 years for Lester, Mark and Donald McKenzie and a slightly lower "starting point" of 11 years due to his lesser involvement was appropriate for Hart.  His role was limited to essentially identify an address and potentially interfere with the package. 

The Court then had regard to the personal mitigation available to each of the accused. 

Lester

The Court noted guilty plea, references and paid particular attention to the relevant information contained within identified paragraphs of the Social Enquiry Report.  The Court expressed some sympathy for him.  It noted his use of seven mobile phones.  He had drawn Hart into the conspiracy.  Crown's conclusions were correct. 

Conclusions granted. 

Robin William Luke Hart

1 count of:

Conspiracy to commit a statutory offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999) contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 2).

Age:  40. 

Plea: Guilty. 

Details of Offence:

See Lester above.

Details of Mitigation:

The Crown

His role was to identify suitable derelict property for the package to be addressed on his postal round and then to hand over to Lester.  No evidence he knew any of the other co-conspirators.  Limited role; motivation partly out of friendship and an undefined financial advantage; guilty plea; no previous convictions; positive good character; remorse.  He did not contribute financially to conspiracy. 

The Defence

Did not go looking for involvement.  He had been sought by Lester.  No other connection with conspirators.  No benefit received.  Guilty plea; remorse; apology; devastating effect on family.  Lost job and reputation.  Accepted involvement amounted to a breach of trust.  Not someone who will be before the Court again. 

Previous Convictions:

None. 

Conclusions:

Starting point 11 years' imprisonment.

Count 2:

4½ years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

See Lester above. 

Guilty plea; expressions of remorse and substantial references from family and friends.  A degree of sympathy being involved in something he would not normally have been involved in.  However, he was to be sentenced for what he had done.  Very good personal mitigation.  His involvement placed him in breach of trust which the Court had weighed in the balance.  Use of the postal system for the importation of illegal drugs was an aggravating factor.  Crown's conclusions were correct. 

Conclusions granted. 

Mark Oliver McKenzie

1 count of:

Conspiracy to commit a statutory offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999) contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 2).

Age:  40. 

Plea: Guilty. 

Details of Offence:

See Lester above. 

Details of Mitigation:

The Crown

Liverpool point of contact:- the link between Jersey and Liverpool.  Close to the supplier in Liverpool and passed on information re address.  Sent the "dummy package".  Motivation was financial.  Going to be paid £1,000.  Guilty plea, not of previous good character; previous drugs offences; letter of remorse and other character references. 

The Defence

Guilty plea; remorse; criminal record historical.  Accepted that some increase in the "starting point" was appropriate but 13 years was too high.  Insufficient credit for mitigation. 

Previous Convictions:

Five convictions for a total of ten offences including three offences of possession of controlled drugs, assault x 3, public order, battery and malicious damage. 

Conclusions:

Starting point 13 years' imprisonment.

Count 2:

7 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Postponement of Confiscation Hearing sought until 18^th May, 2011, pursuant to Article 4 of the Drug Trafficking Offences (Jersey) Law 1988.

Sentence and Observations of Court:

See Lester above. 

He played an important part in the conspiracy.  The Court had looked at references and letters of remorse.  Crown's conclusions were correct. 

Conclusions granted. 

Donald McKenzie

1 count of:

Conspiracy to commit a statutory offence, (namely to fraudulently evade the prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999) contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 2).

Age:  60. 

Plea: Guilty. 

Details of Offence:

See Lester above. 

Details of Mitigation:

The Crown

Takes Lester's £3,000 to Liverpool.  Provided a variety of improbable explanations for the £18,000 and the only reasonable inference was that some of those funds were used for the balance of the purchase price.  Age: previous record but historical and, therefore, the Crown treated as a man of good character.  Guilty plea.  Letters of remorse and support.  Health problems. 

The Defence

"Starting point" too high and insufficient credit for mitigation.  He was not the organiser.  A frail man and a chronic alcoholic and long term health problems.  Guilty plea.  Low risk of re-offending.  Due to poor health the Court asked to exercise mercy. 

Previous Convictions:

Drunk and disorderly x 2, larceny and motoring - historical and treated as a man of good character by the Crown. 

Conclusions:

Starting point 13 years' imprisonment.

Count 2:

7 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Confiscation Order sought in the amount of £89,260 and the Court to order a saisie judiciaire against the property of the defendant and to order the Viscount to realise the defendant's property, subject to Saisie Judiciaire, to the stated sum mentioned. 

Sentence and Observations of Court:

See Lester above. 

Played an important role by taking the cash to England.  The Court had carefully considered the question of health but distinguished AG-v-Schneider as that was an exceptional case in which full and detailed medical evidence had been provided.  The Court did not think he was likely to die in prison.  Having regard to all of the mitigation available it did not consider the Crown's conclusions incorrect. 

Conclusions granted. 

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

Advocate R. Tremoceiro for Lester.

Advocate W. A. F. Redgrave for Hart.

Advocate S. A. Pearmain for M. McKenzie.

Advocate M. J. Haines for D. McKenzie.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for one count of conspiracy to evade, fraudulently, the prohibition on the importation of a controlled drug, namely cocaine, to which you have all pleaded guilty.  This was a carefully considered importation involving a trial run with a book package addressed to an apparently fictitious person at a derelict house.  It was followed by an actual importation of 241.07 grams of cocaine, using the same methodology.  There was extensive use of mobile telephone connections and we note in particular that Mr Mark McKenzie was sufficiently aware of the risk of being caught, that he dismantled his telephone and threw the parts into the dustbin after making a particular call.  The cocaine had a very high level of purity; it was not at 1-2% which is the norm, but at a range of 73-76% depending on whether one takes the Defence expert's analysis or the analysis from the Crown.  It is right at that point therefore to refer to the question of purity in the context of the Rimmer guidance of the Court of Appeal where the Court said this:-

"The Attorney General invited the Court to adopt the approach of the English courts as exemplified by the guideline case in England and Wales of R-v-Aranguren (8).  In that case it was decided that in future, weight should be determined after converting to the equivalent 100% purity weight of the drugs, a process which involves in each case a mathematical conversion from the particular degree of purity to 100%.  This is of some importance on the mainland because of the larger quantities of drugs involved, and the practice of "cutting" a consignment of drugs so as to reduce the average purity.  However, there is no evidence of any material amount of "cutting" of drugs illegally brought into Jersey.  Further, in the judgment of this court, whether a consignment of heroin or cocaine is at the average of between 40% and 50% purity, or at a much lower degree of purity, or at o higher degree, is immaterial to the carrier of the drugs, and largely immaterial to those who sell and buy the drugs in Jersey.  To know the degree of purity requires the carrying out of a scientific analysis, involving both time and expense.  Such an analysis seems at present unlikely to be carried out by those who deal in this illegal trade in Jersey.   In the judgment of this court (a) the courts of Jersey should not at present adopt the Aranguren approach: and (b) the degree of purity of a consignment of illegal drugs should generally not be taken into account."

So one starts from the position the purity is generally not important.  However the Court of Appeal went on then to say:-

"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. 

That was an approach adopted by Court of Appeal in Kenward-v-AG [2000] JLR 251 and we consider it is the right approach which in any event we are bound to adopt.  So that is the approach the Court adopts today and we think that at the levels of purity which are involved here, it would be right to increase the starting point. 

2.        As far as the starting point is concerned, the Rimmer guidelines indicate that for amounts of between 10 grams and 250 grams, one is looking at a band of 10-13 years, and it has been mentioned by Advocate Tremoceiro and by Advocate Haines that for 250-400 grams, the starting point is 11-14 which it is said is an oddity in the sense of that at 10 grams more, the starting point would be at the bottom of the higher band, not at the top of the lower band.  In our view, the Court is charged to have regard to the quantity of drugs as one of the primary factors but also to look at the involvement of the accused in the drug trafficking and the reason the two bands overlap is to reflect the fact that even in the higher quality drugs importation, one may find somebody who has a lesser involvement in drug trafficking and that is why there is an overlap.  The Court has considered all these matters and in this particular case takes that view that it is right, having regard to purity, to increase the starting point to 13 years in respect of Mr Lester, Mr McKenzie and Mr McKenzie and also considers that the starting point of 11 years in respect of Mr Hart is correct.  The reason that we take a lower starting point of 11 years for Mr Hart is to recognise that as far as his participation in the offence is concerned, that was limited essentially to identifying an address to which the drugs were to be sent and to the potential interference with the packet of drugs which would be sent in the post.  We take those starting points as being the appropriate starting points to apply in this case and have then looked at the personal mitigation which is available to each of the accused. 

3.        Mr Lester, we have looked at the mitigation which applies to you; you have the mitigation of a guilty plea; we have noted the references which have been passed up; we have paid particular attention in looking at the mitigation to paragraphs 5 and 6 and what is in the social enquiry report and have every sympathy with you in respect of those paragraphs.  Nonetheless, we note that you had seven mobile telephone numbers available to you and the Court has particularly taken into account the fact that you knowingly drew Mr Hart, who is an acquaintance, maybe a friend of yours, into the arrangement.  Taking into account all the mitigation which has been mentioned by your counsel and put to us, we nonetheless consider the Crown has the conclusions correct.  

4.        In the circumstances you are sentenced to a total of 6 years' imprisonment. 

5.        Mr Hart, we have noted that you have also entered a guilty plea and you have expressed remorse and, indeed, that there are a very substantial number of testimonials to you from your family and friends.  The Court has, again, sympathy for you to the extent that you have become drawn into something which we do not regard to be within your character.  Nonetheless you have to be sentenced for what you have done and although the very good personal mitigation which is available to you might well have led the Court to reducing the conclusions, we take very much into account the breach of trust as an employee at the Post Office and we think that that outweighs, in the balance, the mitigation which would otherwise be available to you because the use of the postal services for this kind of importation is undoubtedly an aggravating factor and you were best placed to ensure that it could be so abused. 

6.        In the circumstances the Court considers the conclusions of the Crown are correct and you are sentenced to 4½ years' imprisonment. 

7.        Mr Mark McKenzie, you and your father played an extremely important part in this conspiracy to import the cocaine.  Again, the Court has looked at the references which have been supplied and at your letter of remorse.  We can see from the construction of your letter that you have unfortunately gone astray because you are undoubtedly an intelligent man who knows perfectly well what has been done and what you should have done.  The Court takes into account everything that has been said by your counsel but considers that the conclusions advanced by the Crown are correct.  As was said in relation to the facts of the case, we take note of your knowing involvement in the matter by your destruction of the mobile telephone. 

8.        Mr Donald McKenzie, much of what has been said in relation to your son we think also applies to you.  You were an important part of the conspiracy and of course in your case also, that led to the taking of cash.  The only additional thing which is available to you is the question of your health and the case of AG-v-Schneider [2005] JRC 141 which your counsel Advocate Haines advanced to us.  We have given careful consideration to this; in the Schneider case the circumstances were absolutely exceptional and the Court clearly had before it at that time some very detailed and focused medical evidence.  Advocate Haines said that the conclusions amounted to a life sentence, but the Court does not consider the medical evidence is such that you are likely to die in prison, and accordingly the Court considers that in the circumstances, taking into account all the mitigation which has been otherwise very fluently put before us by your counsel, we do not consider that the conclusions are at all wrong and indeed we consider they are right, giving you full allowance as with your son for the guilty plea and for the other material which has been put before us. 

9.        In the circumstances Mr Donald McKenzie and Mr Mark McKenzie, are sentenced to a term of 7 years' imprisonment. 

10.      The Court makes an order that the determination of the Confiscation Order as against Mark McKenzie will be postponed for a period of up to six months as from 19^th November, 2010. 

11.      The Court makes a Confiscation Order against Donald McKenzie noting his benefit in the sum of £89,260, making the Confiscation Order in the same amount and we direct the Viscount to realise Donald McKenzie's property which is the subject of the saisie to that extent. 

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

Authorities

Rimmer-v-AG [2001] JLR 373.

AG-v-Schneider [2005] JRC 141.

Kenward-v-AG [2000] JLR 251.

AG-v-Smitton 2001/31.

Hasson-v-AG [2004] JCA 124.

AG-v-Hodson [2009] JRC 043.