Jersey Unreported Judgments

[2006]JRC029

ROYAL COURT

(Samedi Division)

21^st February 2006

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle, Tibbo, Bullen, Georgelin, King and Newcombe.

The Attorney General

-v-

Joe David Andrade

Darren Steven Andrews

William Swinburne

Sentencing by the Superior Number of the Royal Court, on the following charges:

Joe David Andrade

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) 1999.

Age:  28

Plea: Guilty.

Details of Offence:

Five kilos of heroin were imported into Jersey concealed within compartments cut into the passenger door sills of a vehicle.  The total weight was 4,898.16 grams containing an average of 49% by weight of diamorphine.  It was the largest single quantity of Class A drugs imported into the Channel Islands at that time.  It had a street value of between £1,469,448 and £2,204,104.  The local wholesale value was between £734,737 and £979,617.  Up to 44,082 individual wraps of heroin could have been made from this consignment.

It was the Crown's case that Andrews was the organiser of this importation.  He had travelled back from Spain the day before the drugs were imported into Jersey.  He travelled to Manchester where he collected a hire car and then drove to catch the ferry to Jersey for the next day.  A few hours later a vehicle driven by Silvester with his partner, Walsh and their young child arrived in Jersey.  The heroin was concealed within the car driven by Silvester.  Both Silvester and Walsh were originally charged with Count 1 but the Crown did not proceed with that Count against Walsh and Silvester pleaded not guilty and was acquitted following a trial.  Silvester had claimed that he had been contacted by Andrews and requested to bring in an unknown quantity of money into Jersey which had been concealed with Silvester's car, albeit he did not know where the location of the money was.

Upon arriving in Jersey, Andrews made contact with Andrade.  Andrews provided the link between Andrade and Silvester. Andrade involved Swinburne whose function was to locate a garage which could be used to conceal the vehicle driven by Silvester and therefore to remove the heroin from its compartments.  All of the accused and Silvester were kept under observation by the police.  Their meetings were kept under observation.  Prior to the arrest and seizure of the heroin, a number of visits were made by Andrade and/or Andrews either together or on their own to the location at which Silvester's vehicle had bee parked.

Andrade drove to the hotel car park of the hotel where Silvester etc were staying.  With him was Andrews and Swinburne.  Swinburne had the key to the garage.  Andrews requested Silvester to follow them and it was at this point that the accused were all arrested.  The heroin was subsequently sized when Silvester's vehicle was examined.

Andrade and Andrews answered "no comment" in interview and Swinburne claimed that the organisation of the garage was for an innocent purpose but that he thought that he was going with the other two men to get a "50" bag of heroin for being of assistance to Andrade.

The Crown took as its starting point in relation to Andrews as an organiser a sentence of 25 years' imprisonment.  In the case of Andrade, whilst he was not viewed as an organiser the Crown categorised him as somebody who was highly trusted and therefore to be considered close to the source of the drugs.  The Crown took as its starting pint a sentence of 20 years imprisonment.  In relation to Swinburne it did not consider the application of starting points or the Rimmer Guide lines to be appropriate as Swinburne had pleaded guilty to an offence under Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978, as such offences could cover such a wide variety of conduct.

Swinburne had been granted bail for the purposes of attending a medical appointment in London.  He was due to travel out and return from his appointment the same day.  He attended for the appointment but then absconded.  He remained at liberty for approximately 6 months.  He admitted his contempt of court.  In mitigation he contended that he had been advised that he could not have a liver transplant and therefore had decided to abscond as he did not wish to die in prison.

Details of Mitigation:

He was a mature individual, not of good character who had a long term drug use problem.  He had only been released from prison a matter of 3 months for drug trafficking offences before becoming involved once again in these offices.  Regard was paid to the matters contained within the Reports.  He had the benefit of a guilty plea but the Crown's position was that it was not entered at the earliest opportunity and only entered after full disclosure of the Crown's case had been given.  The Crown's position was that a guilty plea was inevitable.  The Crown made a 3 year deduction from the starting point for Andrade's mitigation.

The Defence submissions for Andrade in relation to mitigation were firstly that it was contended that Andrade's role or involvement was minimal.  He was not an organiser and his role had been to get somebody to find a garage.  It was suggested he only became involved on the Friday and that furthermore was under threats to become involved so as to clear a prior drug debt.  He was not to be trusted with the drugs but simply to take Andrews to the garage.  It was further claimed that Andrade had no knowledge of the type of drug that was being imported.  The guilty plea was a valuable plea.  It was contended that the roles played by Andrade and Swinburne were of a similar nature and the Court were invited to sentence Andrade on that limited role.

Previous Convictions:

He had 7 previous convictions for offences involving public disorder, dishonesty, violence and the supplying of controlled drugs and possession of controlled drugs with intent to supply.

Conclusions:

Count 1:

17 years' imprisonment.  (Starting point 20 years' imprisonment).

Sentence and Observations of Court:

Count 1:

12 years' imprisonment.  (Starting point 17 years' imprisonment).

Andrade and Andrews have pleaded guilty to being knowingly concerned in the importation of 4.9 kilos of heroin which has a street value of between £1.4 and £2.2 million in Jersey.  Between 29,000 and 49,000 wraps of heroin could be made selling at £50 per wrap.  It goes without saying the damage and degradation that so much heroin could cause in Jersey.  The Law Enforcement Agency were to be congratulated on their efforts.  Darren Andrews came to Jersey by ferry a few hours before Silvester and Walsh and their child arrived in Jersey.  He made contact with Andrade and he was the link man between Andrade and Silvester.  He accompanied Andrade to find Silvester's vehicle.  He was with Andrade when they met with Silvester with the intention of going to the garage.  On his own admission he was to take back cash in the region of £100,000.  The court was satisfied that he had played the most significant role although they accepted that he was not one of the principals in the sense of not possibly making the profit.  He was, however, trusted to pay a significant part in coming to Jersey and providing a link between Andrade and Silvester and taking the money back.

It was accepted that Andrade was not an organiser.  He had, however, played an important role.  He was the contact point for Andrews and had arranged for the garage

In terms of starting points, the Court could not ignore the fact that they were dealing with a larger amount of heroin than any previous case.  The Court reviewed the cases of Durkin, Carter and Hume and Valler.  The quantity of heroin found here was not dealt with within the Rimmer guidelines.  The Court repeated what it had said at paragraphs 11 and 12 of its Judgment in the case of Carter.  The Court emphasised that whilst there may be a levelling off when the amounts increased, this did not mean a flattening.  The quantity was still relevant.  Advocate Haines had referred to English cases which were not helpful.  England had its own sentencing policy.  This Island had its own well established policy and in particular it was noted that the Island population was small and therefore the amount of heroin that had been brought in was more significant and the rewards in Jersey were far greater.  The Court had been advised that his quantity in the United Kingdom would cost £100,000 compared with the maximum realisable profit in Jersey of £2.2 million.  The Court had regard to the nature and scale of the involvement of the accused and took for a starting point as against Andrews one of 21 years and one of 17 years against Andrade.

The Court then considered Andrade's mitigation.  He had previous convictions.  He had pleaded guilty and it was well established that a defendant should plead guilty at an early stage and not wait until all the evidence was revealed.  The Court was, however, satisfied that the guilty plea was of value and he was therefore entitled to substantial discount.  Andrade had stated that he had become involved to clear a drug debt of £10,000 but the Court did not view that as mitigation as he had put himself in that position.  The Court had regard to the other matters put forward on his behalf and considered a reduction of 5 years was appropriate imposing a sentence of 12 years' imprisonment.

Darren Steven Andrews

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) 1999.

Age:  30.

Plea: Guilty.

Details of Offence:

See Andrade above.

Details of Mitigation:

The Crown's position on mitigation available to Andrews was that he was not a first offender nor a young offender.  He was a mature individual who, in the Crown's view knew precisely what he was doing and what he was involved in.  He had the advantage of a guilty plea but again in the Crown's view that had not been entered at the first opportunity and only after the full weight of the Crown's evidence had been disclosed.  The guilty plea was inevitable.  The Crown had made a reduction of three years for the mitigation from the starting point.

The Defence submitted that the starting point of 25 years was too high and that this case as beyond the Rimmer guidelines.  The Court was therefore in unchartered territory.  Andrews disputed what Silvester had said against him but did not have the opportunity of cross-examining him at Silvester's trial.  There was, however, no forensic evidence linking Andrews with the heroin or its concealment within the case.  Andrews maintained that he had come to Jersey to collect money.  There were no drugs on him or in his car.  It was admitted that he had initiate the contact with Andrade and that he accepted that he was the link man between Andrade and Silvester.  The reason why had attended at the hotel on a number of occasions was that whether were difficulties in making contact with Silvester by phone.  It was contended that Andrade was not at the level of an organiser.  He was categorised as a runner.  Greater credit should have given for his guilty plea.  He had no previous convictions for drug trafficking.  He had the benefit of good character references and had been the principal carer for his parents who where suffering ill health.  The defence contended that insufficient credit had been given for the available mitigation by the Crown.

Previous Convictions:

He had 5 previous convictions for public order, dishonest, possession of a controlled drug (cocaine) and violence.

Conclusions:

Count 1:

22 years' imprisonment.  (Starting point 25 years' imprisonment).

Sentence and Observations of Court:

Count 1:

15 years' imprisonment.  (Starting point 21 years' imprisonment).

See Andrade above.

Andrews had pleaded guilty and the Court repeated its comments in relation to the value of such a plea.  It considered the deduction made by the Crown of 1/8^th inadequate.  The court had regard to the references and other letters put before it.  A sentence of 15 years was to be imposed.

William Swinburne

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) 1999.

Age:  49.

Plea: Guilty.

Details of Offence:

See Andrade above.

Details of Mitigation:

The Crown had categorised his involvement as that of a "gopher".  He was involved for the specific purpose by Andrade to provide a secure garage.  On the one hand the Crown viewed Swinburne's involvement as relatively minor, whilst on the other hand without the provision of a suitable garage the heroin could not have been removed.  Swinburne was with Andrade and Andrews when they had met with Silvester and Swinburne was still in possession of the key to the garage.  He did not have the advantage of youth or good character and had a substantial previous criminal record including numerous for drug offences.  The Crown had noted the health problems suffered by Swinburne but did not consider them to be mitigation but rather something to which the Court could have regard to as a matter of an exercise of mercy.  Swinburne had the benefit of a guilty plea but once again that was late in the day and in the Crown's view a guilty plea was inevitable.  The Crown had regard to all the information contained within the papers when considering Swinburne.

The Defence contended that Swinburne played a very minor role having only been involved on the Saturday morning so as to get a garage.  There was a clear difference between Swinburne's role and that of Andrade.  They were not at the same level.  He was entitled to credit for his guilty plea which had been based largely on the facts at interview and had avoided the expense of a trial.  The guilty plea deserved significant credit.

However, the most significant matter was his health problems which were put before the Court for the exercise of mercy.  He suffered from a number of health conditions including liver disease.  Medical evidence indicated that he had a life expectancy of five years without a transplant.  The practical difficulties of undertaking a transplant were explained if he remained in custody.  As an exercise of mercy the Defence suggested that a suspended sentence with a treatment order could be imposed.

Previous Convictions:

Had 14 previous convictions for offences of dishonest, public disorder, motoring, violence and 8 drug offences for possession and supplying of drugs.

Conclusions:

Count 3	6 years' imprisonment.
	Contempt: 1 month's imprisonment, consecutive.

Sentence and Observations of Court:

Count 3:	3 years' imprisonment.
	Contempt: 1 month's imprisonment, consecutive.

The Court considered Swinburne was in a very different position.  It did not accept the submissions of Advocate Haines that Andrade and Swinburne were the same.  Swinburne had not been charged with being concerned in the importation.  He had a limited role to find a garage.  However, it was too serious a case to be dealt with by a non-custodial sentence even taking into account all of the mitigation.  He had a guilty plea and all of the mitigation revealed in the papers.  Swinburne's health was a key factor.  He had a life expectancy of 5 years if no transplant was undertaken.  Purely as an act of mercy the Court imposed a sentence of 7 years' imprisonment and 1 month's imprisonment consecutive for the contempt.

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

Advocate M. J. Haines for Andrews.

Advocate D. Gilbert for Andrade.

Advocate R. C. L. Juste for Swinburne.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Andrade and Andrews you have pleaded guilty to being knowingly concerned in the importation of approximately 4.9 kilos of heroin, with a street value in Jersey of between £1.47 million and £2.2 million.  We are told that it could produce between 29,000 and 44,000 wraps of heroin which would sell for £50 each.

2.        It is easy to appreciate the damage and the degradation that the presence of so much heroin in Jersey would have caused to those who have a heroin dependency.  We would like to take this opportunity of congratulating the law enforcement agencies on their successful interception of this very substantial quantity of heroin. 

3.        Andrews, you came to Jersey by ferry a few hours before the Vauxhall car driven by Mr Silvester in which the heroin was concealed.  You made contact with Andrade who was the contact point in Jersey.  You were the link man between Andrade and Silvester.  You accompanied Andrade during the day in his attempts to locate Silvester, and then you were with him in the car when he met Silvester, following which the Vauxhall was no doubt to be taken to a garage where the heroin would have been removed in private.

4.        On your own admission you were then to take back a substantial amount of cash.  You have stated you thought it would be about £100,000 and that you would have taken this back to England.

5.        The Court is satisfied that you played the most significant and important rôle of those who are before the Court.  We accept however, that you were not one of the principal of this importation, in the sense that you were personally going to make the profit out of the purchase and subsequent sale of these drugs.  You were trusted to play an important part by coming to Jersey, liaising between Silvester and Andrade, receiving money and taking it back to the United Kingdom.

6.        Andrade, the Court accepts that you were not an organiser in the sense that you were not the principal in charge of distributing the drugs at the Jersey end.  Nevertheless you played a vital rôle in the importation.  You were the contact point in Jersey, you met with Andrews and then Silvester and had arranged through Swinburne for the provision of a garage to unload the heroin.

7.        We have to start by considering the starting points.  We have already said that the amount involved in this importation is very much larger than any previous case which has become before the Courts.  There are three relevant cases that counsel have referred us to in Durkin -v- AG [2005] JCA 002, where there was a conspiracy to import one kilo of heroin, a starting point of 15 years was taken.  In one sense they were the organisers, but the matter never got to the point where anything actually happened and it was simply a plan.

8.        In AG -v- Carter, Allan and Hume [2005] JRC 051, the importation involved was of 1.5 kilos of heroin and ½ kilo of cocaine, in other words approximately 2 kilos in all of a powder Class A drug.  Carter was the courier and he had a starting point of 16 years; Hume was the delivery man at the Jersey end and he also had a starting point of 16 years.  Thirdly, in Valler -v- AG [2002] JLR 383 a courier imported ½ kilo heroin and 5,000 Ecstasy tablets and again a starting point of 16 years was taken. 

9.        All counsel have accepted that the case we are presently dealing with is not dealt with specifically in the Rimmer Lusk & Bade -v- AG [2001] JLR 373 guidelines, but we wish to repeat what this Court said in Carter at paragraph 11:

"11.    In our judgment sentences for drug offences do not increase exponentially with the amount of drugs in question.  Quantity is certainly important, because the damage done to the young people of Jersey increases with the amount of drugs which are brought in or supplied; and in the case of an organiser who knows exactly how much he is importing or supplying we think that quantity will be very significant.  If a person knowingly and for profit decides to deal in very large quantities he must expect to pay a very substantial price if he is caught.

12.      But in the case of someone who plays a minor part and is not even aware of the quantity, and perhaps even the nature of the drugs, there must be an element of tapering off as amounts increase if sentences are not to become unduly harsh for what the offender has actually done.  As Mr Steenson rather graphically put it in mitigation, there must be a levelling off of the curve, as the amount of drugs increases." 

10.      We would elaborate that by saying that although there may be a levelling off, this does to mean a complete flattening of the curve and clearly quantity still remains an important element. 

11.      Mr Haines referred us to some English cases, but we do not think that that was helpful.  The Island has its own well established sentencing policies in relation to drug trafficking.  Furthermore, conditions are different.  First the small size of the Island population means the significance of 5 kilos of heroin may be very much greater in Jersey; and secondly the rewards to be made from drug trafficking in Jersey are great because of the high retail price of heroin.  Sentences must reflect that. 

12.      In this case we were told that the cost of this amount of heroin in the United Kingdom would have been in the order of £100,000.  This is to be compared with the maximum retail sale price in Jersey of something over £2 million. 

13.      Notwithstanding the amount of the drug it is vital to have regard to the nature and scale of each defendant's involvement and the rôle which they have each undertaken.  Having undertaken that exercise, we have come to the conclusion that the correct starting point for Andrews is one of 21 years and the correct starting point for Andrade is one of 17 years.

14.      We then turn to consider the mitigation in each case starting with Andrade.  He has previous convictions for supplying and possession with intent to supply and was only recently released from prison.  He has however pleaded guilty.  He was charged on 14^th December, indicted on 20^th May, 2005 and pleaded not guilty at that time.  A trial was fixed for 22^nd August, however he pleaded guilty on 5^th August.  It is well established by this Court that in order to obtain the maximum discount for pleading guilty a defendant should plead guilty at an early stage and not wait until all the evidence is available.  But even where he does not plead guilty at an early stage, he is still entitled to a substantial discount if the plea is of value, and we are quite satisfied in this case that Andrade's plea and indeed the plea of the other defendants was of value.  They are therefore entitled to a substantial discount, albeit it not as great a discount as they would have received had they pleaded guilty from the outset.

15.       Secondly, we take into account that Andrade says that he did this to clear a debt of £10,000.  But the Court has repeatedly said that those who become involved in the drug scene and incur drug debts as a result have put themselves in the position where they can be threatened and this provides no real mitigation.  We do, however, take account of the other matters put forward by Mr Haines and the contents of the Social Enquiry Report.

16.      Andrade, in all the circumstances we propose to make a deduction of 5 years.  The sentence in your case is one of 12 years' imprisonment.

17.      Andrews you too have pleaded guilty and the same comments apply in relation to you as have just been made in relation to Andrade.  We regard the deduction made by the Court for the guilty plea and mitigation of 1/8^th as being inadequate.  Andrews has previous convictions as well, although none for drug dealing, although there are some for possession of drugs and other offences.  We have taken into account the references and the other matters put forward by his counsel.  Andrews in your case we consider the correct sentence is one of 15 years' imprisonment.

18.      Finally we come to Swinburne.  He is in a very different position and we do not accept the submission made by Mr Haines that his position is not very different to that of Andrade.  In our judgment is it very different.  First of all he has not been charged in connection with the importation, but only in connection with supply.  Secondly, his rôle, it is accepted,was limited to finding a garage to which the car could be taken no doubt in order that the drugs could be unpacked.

19.      Nevertheless, given the amount of drugs in this case it is still too serious to be dealt with by way of a non custodial penalty as submitted by Miss Juste even taking into account the exceptional circumstances of Mr Swinburne's case.

20.      We take into account his guilty plea, the background report and all the other mitigation which appears on the papers.  The key factor here is Swinburne's health.  According to the reports he has a life expectancy of less than 5 years if no liver transplant is obtained, and there is uncertainty as to whether a liver transplant will be available. 

21.      So in all the circumstances, and purely as an act of mercy, the Court proposes to reduce the conclusions to one of 3 years' imprisonment on the supply count and 1 month consecutive for the contempt of court.  We consider that must be consecutive to mark what has occurred making 3 years 1 month's imprisonment in all.  We order the forfeiture and destruction of the drugs.

Authorities

Durkin -v- AG [2005] JCA 002.

AG -v- Carter, Allan and Hume [2005] JRC 051.

Valler -v- AG [2002] JLR 383.

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