Jersey Unreported Judgments

[2011]JRC198

Royal Court

(Samedi)

5 October 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Clapham, Le Cornu, Marett-Crosby, Nicolle and Le Brocq.

The Attorney General

-v-

Marcin Wojciech Stefanek

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 22^nd July, 2011, following a guilty plea to the following charges:

2 counts 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 (Counts 1 and 2).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  32.

Plea: Guilty.

Details of Offence:

The defendant was the subject of a surveillance operation and was seen to collect a package which came on a minibus from Poland.  Upon examination the package contained foodstuff within which was concealed a total of 98.83 grams of heroin (7% - 8% by weight of diamorphine).  A search of the defendant's home address revealed scales and a safe containing £16,080.  67.83 grams of amphetamine sulphate was also found (Count 2). 

The heroin had a street value of £98,830 and a wholesale value of between £19,800 and £39,600.  The defendant admitted purchasing the heroin in Poland at the price of £20 per gram.  It therefore cost £1,976.60.  The amphetamine sulphate had been purchased for between £340 and £408 in Poland but had a street value in Jersey of £2,034.90. 

When interviewed the defendant admitted having undertaken a similar importation approximately one month before, consisting of 90 grams of heroin.  He sold that heroin through a third party in gram deals at the price of £250 per gram.  He sent approximately £600 back to Poland a month prior to that importation.  His profit from the first importation was between £12,000 and £14,000 which he had kept in his safe. 

The Crown treated this as a course of conduct and therefore, sought concurrent sentences.  The Crown suggested a starting point of 10 years' imprisonment for Counts 1 and 2 and a starting point of 2 years for Count 3. 

Details of Mitigation:

The Crown

Guilty plea on Count 1 entered on first appearance in Magistrate's Court.  Guilty pleas to Counts 2 and 3 entered on Indictment.  Guilty pleas and level of cooperation viewed as the significant mitigating factors.  The defendant had written his own Indictment in relation to Count 2.  he had also exonerated friends who were on the periphery of the importation and he admitted he had used them to assist in the importation unknowingly.  He did not have mitigation by virtue of age or good character.  He claimed in the social enquiry report that he had been threatened by Polish drug dealers to undertake these importations.  The Crown's view was that this information came late in the day and was, therefore, not believable and that in any event threats were not mitigation. 

Defence

Emphasised guilty pleas and level of cooperation; accepted that threats were not mitigation but contended that this was the information that Defence counsel had been given from the outset.  Some support from letters provided by the defendant's mother.  Character references put before the Court.  The defendant had come to Jersey to escape from Polish drug dealers but then had caught up with him and threatened him to participate in these offences.  Whilst he was the point of contact in Jersey he was not the principal. 

Previous Convictions:

Jersey

Breach of the peace by fighting.

Poland

Burglary; larceny; possession of narcotic drug or psychotropic substance.  It was noted that the defendant was subject to a suspended sentence which the Polish authorities had sought to activate. 

Conclusions:

Count 1:	Starting point 10 years' imprisonment.  5 years' imprisonment.
Count 2:	Starting point 10 years' imprisonment.  5 years' imprisonment, concurrent.
Count 3:	Starting point 2 years' imprisonment.  6 months' imprisonment, concurrent.

Total:  5 years' imprisonment. 

Confiscation Order sought in the sum of £23,938.50.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

The defendant was to be sentenced on an Indictment containing two charges for being concerned in the importation of heroin and one offence of possession of amphetamine sulphate.  The quantity of the heroin on the first occasion was 50 grams plus 40 grams of an unknown chemical adulterate for bulking out the heroin.  The defendant's profit for this importation was £12,000 to £14,000.  The second importation concerned 98.83 grams of heroin which had a street value of £98,830.  Given the price of heroin in Poland as claimed by the defendant to be £20 per gram, then a very substantial profit was being made.  Finally, he had possession of 67.83 grams of amphetamine sulphate.  The defendant had lived in Jersey for seven years and must have known that the Court treats very seriously importations of heroin.  The Court would apply the principles in the case of Rimmer-v-AG.  The Crown had taken a "starting point" of 10 years' imprisonment and had treated the first two counts on the Indictment together by way of concurrent sentences.  We think it is better to regard them as of this separate offence which merit consecutive sentences.  These were different importations and the Court could then give appropriate discount for the writing of his own Indictment if taken separately.  On that basis the Court had taken the Crown's "starting point" of 10 years' imprisonment and had regard to the mitigation of an early guilty plea and his exoneration of other persons involved in the fringes on the importation and had taken note of the other information contained within the social enquiry report and the submissions for counsel.  However, the Court did not give him credit for threats which he says had been made against him.  The Court has said so many times that threats do not amount to mitigation.  Two reasons for this: impossible to verify threats had in fact been made; and those who did deal or participate with drug dealers must be taken as accepting the risks that are involved in such conduct. 

Thus the sentence on Count 1 taking a "starting point" of 10 years and making the allowances for the mitigation: 6 years' imprisonment. 

Count 2

The Court had taken the same "starting point" of 10 years and had given the same mitigation as Count 1 but had given extra mitigation for his confession to the police in relation to the First Indictment.  He had written his own Indictment.  The Court felt the appropriate sentence was one of 2 years' imprisonment which would have made a total of 8 years' imprisonment.  However, the Court had considered in the light of the totality principle this would have been too high and, therefore, made a further reduction and imposed a sentence of 1 year's imprisonment, consecutive to Count 1. 

On Count 3 the Court agreed that the appropriate sentence was 6 months' imprisonment, concurrent to Count 1. 

Count 1:	6 years' imprisonment.
Count 2:	1 year's imprisonment, consecutive.
Count 3:	6 months' imprisonment, concurrent.

Total:  7 years' imprisonment. 

Confiscation Order made in the sum of £23,938.50.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Stefanek, you are to be sentenced on an Indictment containing two charges of being concerned in the importation of heroin and one charge of possession of amphetamine sulphate.  The quantity of heroin imported on the first occasion was 50 grams of heroin and 40 grams of an unknown chemical for bulking it up.  Your profit was between £12,000 and £14,000.  On the second importation the amount imported was 98.83 grams of heroin.  The street value of this was £98,830.  Given that the price of the heroin in Poland was, you say, £20 per gram, there was a very substantial profit being made.  You were also found in possession of 67.83 grams of amphetamine sulphate. 

2.        You have lived here for seven years and you must know that the courts of this Island view very seriously the importation of heroin.  We apply the principles set out in the Court of Appeal in the case of Rimmer Lusk & Bade-v-AG [2001] JLR 373.  The Crown has taken a starting point of 10 years and has treated the first two counts on the Indictment together by moving for concurrent sentences.  We think that these should be better regarded as separate offences which merit consecutive sentences; they were different importations and, furthermore, the Court can more easily give an appropriate discount for the special mitigation of writing your own Indictment if they are taken separately.  On that basis we are going to take the Crown's starting point of 10 years.  We are going to reduce that on Count 1 having regard to the mitigation which you have, and in particular, the early guilty plea and the fact that you have exonerated all of those around the edges of the importation, and taking into account everything else which is in the social enquiry report and mentioned by your counsel.  But we do not give credit for the threats which you say have been made.  It has been said many times in this Court that threats are not mitigation unless there are some quite exceptional circumstances.  The reasons for that include the fact that it is generally impossible to verify whether the threats have been made or not and we note that the police and the prosecution have not confirmed the existence of those threats in this case.  The second reason threats are not taken into account is that those who put themselves in the position of dealing with drug dealers must be taken to accept the risk of doing so. 

3.        So on Count 1 of the Indictment, from a starting point of 10 years, we would give you mitigation which results in a sentence of 6 years' imprisonment.  On Count 2 of the Indictment we take the same starting point of 10 years; you have the same mitigation which I have mentioned in relation to Count 1, but the extra mitigation, that you made a full confession to the police and you wrote your own Indictment.  In the circumstances we reduce the sentence from the starting point of 10 years to 2 years' imprisonment, which would, if we imposed that consecutively, give a total of 8 years.  We think that is too high on grounds of totality and accordingly on Count 2 we are going to reduce the sentence to 1 year's imprisonment, which runs consecutively to Count 1.  On Count 3, as moved for by the Crown, we sentence you to 6 months' imprisonment, which is to run concurrently with Count 1.  As a result you are sentenced to a total of 7 years' imprisonment on this Indictment. 

4.        I would like to add this that there is an alternative way of looking at the right approach to this sentence.  We had considered whether it would be more appropriate to treat the two offences together.  As it happens we would have finished in the same place.  It appears to us that would have given a starting point of 12 years rather than 10 years' imprisonment, having regard to the total of heroin imported and your overall role in drug trafficking.  In particular we note the presence of electronic scales and a substantial amount of cash in your flat.  And so, had we started at 12 years and had we then applied the mitigation to which I have referred, we would still have ended up at 7 years' imprisonment. 

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

6.        I come now to the question of deportation.  There are two limbs to the question we have to decide; the first question is whether your continued presence in the Island is detrimental to the interests of the community.  We have noted that your counsel has not resisted a recommendation for deportation but in any event we think that your continued presence is detrimental to Jersey; there are two separate offences of trafficking in heroin and the reports show you to be at moderate risk of re-offending.  The second part of the test is whether there is anything in your personal circumstances, or the circumstances of those close to you, which make it disproportionate to make the recommendation.  That does not seem, to us, to arise in your case and accordingly we make the recommendation for deportation which would be considered by the Lieutenant-Governor at the end of your sentence of 7 years' imprisonment. 

7.        Can I just add for the benefit of counsel that in circumstances where one has an accused or defendant who does not have a good grasp of English and a lengthy summary, we think the Crown should procure that the summary is translated and also that the Indictment is translated.  Then the Court can have prosecuting counsel run through the summary at a normal pace which would be a much more efficient use of the Court time. 

Authorities

Rimmer Lusk & Bade-v-AG [2001] JLR 373.

Campbell-v-AG [1995] JLR 136.

Camache-v-AG [2007] JLR 462.

AG-v-MacDonald [2005] JRC 004.