Jersey Unreported Judgments

[2004]JRC161

ROYAL COURT

(Samedi Division)

 

13^th September 2004

 

 

The Attorney General

-v-

Kevin Foster

 

Sentencing by the Superior Number of the Royal Court, to which the defendant was remanded by the Inferior Number on 20th August, 2004, following a guilty plea to:

 

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: heroin.

 

 

Age:     35.

 

 

Details of Offence:

Arrived in Jersey accompanied by his nine year old daughter.  Initially denied carrying drugs but later admitted he had drugs concealed internally.  Two oval shaped wrapped packages (a total of 54.89 grams of heroin containing an average of 46% by weight of diamorphine) recovered.

The accused agreed to bring the packages to Jersey to clear a small drugs debt owed in Eastbourne.  He thought they contained controlled substances.  The persons who had given him the packages had threatened to snatch and harm his daughter if he refused to make the trip.  The same persons had suggested his daughter accompany him.  The packages were to be collected from his hotel. He was not to receive any financial reward for acting as a courier.  His dealer had financed the trip including spending money.

 

Details of Mitigation:

Guilty plea (considered inevitable).  Co-operative and expressed remorse.  Acting under threats of violence towards his daughter.

 

Previous Convictions:

Single conviction concerning causing unnecessary suffering to a dog.  Effectively a first offender.

 

Conclusions:

5 years' imprisonment: £111.90 confiscation order (starting point: 9 years).

 

Sentence and Observations of Court:

4 years' imprisonment: £111.90 confiscation order (starting point: 8½ years).

Accused had pleaded guilty to importing nearly 55 grams of heroin internally.  He told officer he had agreed to bring the packages to the Island to clear a small drugs debt but said the real reason has been the threat of ham of his nine year old daughter.  There was no question the heroin was to have been supplied.

The accused was not a drug addict.  A custodial sentence was inevitable.  Sweeney reminded the Court the degree of involvement was important.  The accused was a classic "mule".  The court considered his degree of involvement at the lowest end of the scale.  A starting point of 8½ years' imprisonment would be taken.

He pleaded guilty at the earliest possible stage and had expressed remorse.  The Social Enquiry Report made reference to his stillborn child 8 years previously.  The Drug and Alcohol Report described him as emotionally immature and vulnerable.  Effectively he was a first offender.  The references produced showed he was a single parent devoted to his 9 year old daughter.

In this case there was very substantial mitigation.  (Recommendation for bereavement counselling).

 

 

A.J. Belhomme, Esq., Crown Advocate

Advocate J. Bell for the Defendant

 

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        Foster has pleaded guilty to the importation of nearly 55 grams of heroin concealed in his rectum.  The heroin had a street value of between £17,000 and £25,000.  He told the Customs Officers that a small drugs debt relating to the purchase of cocaine was to be forgiven, but that the real reason for carrying out the importation was a threat by the supplier to harm his nine-year-old daughter.

2.        There is no question but that the heroin was to be supplied to a person or persons in Jersey, thus adding, not insignificantly, to the available quantity in the Island of this destructive and degrading drug.  Foster is not himself an addict.

3.        A custodial sentence is inevitable; the Crown Advocate has taken a starting point of 9 years' imprisonment in accordance with the guideline case of Rimmer and Ors -v- A.G. [2001] JLR373.  The case of A.G. -v- Sweeney [2003] JRC122, however, reminds us that the question for the Court is the degree of involvement of the defendant in drug trafficking.  In this case the defendant was the classic mule, if we may use the vernacular, and we think that the degree of his involvement in drug trafficking was at the lowest end of the scale.  We therefore find that the appropriate starting point is one of 8½ years' imprisonment.

4.        In mitigation Foster has pleaded guilty to the indictment and, indeed, admitted his guilt at the earliest possible stage.  He has expressed his remorse for getting involved in this importation.  He is aged 35.  The Social Enquiry Report describes the loss of a still-born child some eight years ago which is clearly still affecting him.  The Report of the Alcohol and Drug Service describes him as an emotionally immature and vulnerable individual who uses cocaine to bolster his self-esteem.   He is, in effect, a first offender.  The references which defence counsel have passed to us demonstrate a picture of a single parent who has been a devoted father to his nine-year-old child from whom he will now inevitably be separated for some time.  There is, in short, very substantial mitigation available to this defendant and we feel able to give slightly greater allowance for it than has been given by the Crown Advocate.

5.        Foster, the sentence of the Court is that you will be sent to prison for 4 years for the offence to which you have pleaded guilty.  We will recommend that arrangements be made by the prison authorities for bereavement counselling and we order the forfeiture and destruction of the drugs.

Authorities

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^ndEd'n): paragraphs 326 to 332(e).

A.G. -v- Yaqoob [2004]JRC095.

Rimmer and Ors -v- A.G. [2001]JLR373.

A.G. -v- Sweeney [2003]JRC122.

Whitehouse -v- A.G. [2004]JRC064.