AG -v- Warren and Others [2009] JRC 234 (03 December 2009)

[2009]JRC234

ROYAL COURT

(Samedi Division)

3^rd December 2009

Before :

Sir Richard Tucker, Commissioner, and Jurats de Veulle, Tibbo, Clapham, King and Kerley.

The Attorney General

-v-

Curtis Francis Warren

Jonathan Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial on 7^th October 2009, on a charge of:

Curtis Francis Warren

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 46.

Plea: Not guilty.

Details of Offence:

The defendants conspired to import 180 kilograms of cannabis resin from Amsterdam into Jersey. They were convicted on 7^th October, 2009, after a jury trial. The drugs were to be taken by road from Holland to the Normandy coast. From there, boats were to bring the drugs into the Island. The defendants were under surveillance and the police foiled the plot before the drugs left Amsterdam. The wholesale price of the drugs in Jersey: £720,000. Street value £1 million.

Warren was the mastermind of the proposed importation. Warren was the link between Jersey and Holland. He knew drug dealers in both jurisdictions and orchestrated the scheme. The conspiracy period was sustained; late June 2007 until 21^st July, 2007. Warren flew to Jersey on four successive weekends. He met with Welsh, who was at the hub of the plot and the key Jersey dealer, who agreed to acquire the drugs from Warren's contacts in Holland. Welsh agreed to personally invest €18,000 (60 kilograms at Dutch prices). Welsh recruited Hunt and Woodward in late June. Hunt and Woodward were to invest a further €18,000 (60 kilograms) and Hunt was to provide a boat to import all the drugs from the Normandy coast. Warren and his Dutch associates had a further 60 kilograms "on top" making a total of 180 kilograms. However, Hunt and Woodward had difficulties raising the cash and the importation was repeatedly postponed. Welsh lost faith and recruited O'Brien as a boatman to bring back his personal share of the drugs on 15^th July, 2007. At around this time, Hunt and Woodward recruited Lucas as an additional investor to ease their financial concerns. The importation was set for the period 19^th to 21^st July. Welsh travelled by ferry and then hire car to Amsterdam to meet Warren's Dutch associates who were selling the drugs. Welsh expected to be joined in the city by Hunt, Woodward and Lucas. In fact the three boys set off late and had not raised sufficient finance - they had only €3,500 on them. The Dutch were expecting 18,000 and would not do any deal for less than €5,500. The importation was postponed for the following week. The police then intervened.

Details of Mitigation:

Warren, Welsh and O'Brien had no mitigation. They had poor records, all had convictions for serious drug trafficking. None of these defendants had been prepared to talk to the probation officer and therefore there was no pre-sentence report.

Previous Convictions:

In 1997 Warren was convicted of running an organised crime group that trafficked drugs between South America and Europe viz. 400 kilograms of cocaine and 1070 kilograms of cannabis. Also convicted of firearms offences and manslaughter. Described by the prosecution as a prolific drug dealer who had operated at the highest levels of the international drugs trade. Warren had been released from Dutch prison just two weeks prior to the conspiracy starting.

Conclusions:

"Mastermind" of conspiracy.

Starting point 13 years' imprisonment.

Count 1:

13 years' imprisonment.

Confiscation Order sought and hearing to commence on 29^th March, 2010.

Sentence and Observations of Court:

Massive importation. Sustained conspiracy foiled by police. Very serious offence. Defence counsel's suggestions that sentence should be reduced to reflect Court's displeasure at police conduct during investigation (bugging of hire car in Europe without lawful authority) was "inappropriate". The Court expressed strong disapproval as to what had happened but consider police actions "irrelevant" in determining the correct sentence.

Conclusions granted.

John Alan Welsh

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 44.

Plea: Not guilty.

Details of Offence:

See Warren above.

Details of Mitigation:

See Warren above.

Previous Convictions:

Three previous convictions for drugs offences in Jersey. In 2000, sentenced to 10 years 6 months for trafficking heroin and other drugs worth £290,000. Described as a major figure in the Jersey drugs scene.

Conclusions:

The hub and leader of the Jersey end. No mitigation.

Starting point 12 years' imprisonment.

Count 1:

12 years' imprisonment.

Sentence and Observations of Court:

Conspiracy would never have involved Jersey but for his involvement.

Conclusions granted.

James O'Brien

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 45.

Plea: Not guilty.

Details of Offence:

See Warren above.

Details of Mitigation:

See Warren above.

Previous Convictions:

2002, convicted of importing 60 kilograms of cannabis by boat from the Normandy coast. His proposed involvement in the 2007 conspiracy was exactly the same conduct.

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

11 years' imprisonment.

Sentence and Observations of Court:

Prosecution starting point 11 years, too high. Correct starting point 10 years. No mitigation.

Starting point 10 years' imprisonment.

Count 1:

10 years' imprisonment.

Jason Woodward

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 22.

Plea: Not guilty.

Details of Offence:

See Warren above.

Details of Mitigation:

Hunt, Woodward and Lucas did talk to probation. There was personal mitigation. Their circumstances were materially different to the first three defendants on the indictment. Moreover, there was mitigation in their youth. Woodward was of previous good character. Hunt and Lucas had previous convictions but had never faced prospect of custodial sentence before.

Previous Convictions:

Previous good character.

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

8 years' imprisonment.

Forfeiture of £700 sought.

Sentence and Observations of Court:

Mitigation to be found in pre-sentence reports. Materially different to first three defendants on Indictment. Each defendant treated the same. Conclusion 5 years.

Starting point 9 years' imprisonment.

Count 1:

5 years' imprisonment.

Forfeiture of £700 ordered.

Paul Samuel Hunt

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 27.

Plea: Not guilty.

Details of Offence:

See Warren above.

Details of Mitigation:

See Woodward above.

Previous Convictions:

On probation at the time for possession of various drugs for personal use.

No previous custodial sentences.

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

9 years' imprisonment.

Sentence and Observations of Court:

Mitigation to be found in pre-sentence reports. Materially different to first three defendants on Indictment. Each defendant treated the same. Conclusion 5 years.

Starting point 9 years' imprisonment.

Count 1:

5 years' imprisonment.

Forfeiture of £350 ordered.

Oliver Courtenay Lucas

1 count of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. (Count 1).

Age: 23.

Plea: Not guilty.

Details of Offence:

See Warren above.

Details of Mitigation:

See Woodward above.

Previous Convictions:

Three previous convictions for cannabis. Never been to prison.

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

8 years' imprisonment.

Forfeiture of €1,875 sought.

Sentence and Observations of Court:

Mitigation to be found in pre-sentence reports. Materially different to first three defendants on Indictment. Each defendant treated the same. Conclusion 5 years

Starting point 9 years' imprisonment.

Count 1:

5 years' imprisonment.

Community Service Order revoked.

Forfeiture of €1,875 ordered.

H. Sharp, Esq., Crown Advocate.

Advocate S. M. Baker for Warren.

Advocate S. E. Fitz for Welsh.

Advocate J. W. R. Bell for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

JUDGMENT

THE commissioner:

1. The six defendants have been convicted, by unanimous verdicts of the Jury, of conspiring to import cannabis resin into this Island of Jersey. The conspiracy was sustained and committed over some time and the amount of the drugs was massive and valuable. It is believed to be the largest ever planned importation to come before this Court. The amount contemplated was 180 kilograms. If it had reached the streets of Jersey it would have realised a value of £1 million. This would have represented a considerable mark-up from the price paid in Amsterdam, where it was planned to purchase the consignment and from where it was intended to transport it, first to the Normandy coast, and then by boat to a secluded bay in Jersey. Those involved in the conspiracy were playing for high stakes and must have expected to make a considerable profit out of it.

2. As was their right, none of the defendants gave evidence at their trial so the Court has no direct evidence from the defence of the parts which each of them played in the conspiracy. In these circumstances, while the Court must not speculate, we are entitled to draw reasonable inferences from the facts established by the prosecution. This is relevant to the fact that three of the defendants, Woodward, Hunt and Lucas, agreed to be interviewed by probation officers for the purpose of producing social enquiry reports. In one case a defendant gave a limited account of how he came to be involved but such an account was never revealed in evidence to the Jury and therefore there is nothing before the Court to substantiate it.

3. In deciding the sentences appropriate for each defendant, the Court must look first at the overall seriousness of the offence and then at the individual blameworthiness and involvement of the offenders. Reference has already been made to the fact that this was to be a very substantial importation on a commercial scale. It is, or ought to be, well known that the Courts of Jersey will impose severe sentences in such circumstances, so as to reflect the gravity with which the Court views them and in an attempt to deter future offenders. The Court has made it clear that both the street value and the weight of the drugs involved are factors to be taken into account by the Court in determining the appropriate sentence.

4. In the case of Campbell-v-AG [1995] JLR 136 the Court of Appeal proposed an appropriate starting point in cannabis cases of quantities over 30 kilograms as a minimum of 10 years' imprisonment. The maximum sentence for the present offence is 14 years' imprisonment. In the case of AG-v-Styles [2006] JCA 095 which concerned an importation of 90 kilograms of cannabis, a starting point of 12 years was approved by the Court of Appeal. The amount in that case was exactly half the amount concerned in the present case.

5. The role played by the defendants is also an important factor to be taken into account in determining the starting point for sentencing. In the present case, the roles played by the defendants and the stage at which they joined the conspiracy differed quite considerably.

6. There can be no doubt that the prosecution are correct in describing the first defendant, Curtis Warren, as the head and orchestrator of the conspiracy. At the trial his counsel, Advocate Baker, on his instructions, revealed to the jury that Warren was a notorious and prolific drug-trafficker who was said to have amassed a considerable fortune as a result of his dealings. While Warren was still prison in Holland he was visited by a named co-conspirator, Mohammed Liazid, and others. Within in a short time after his release Warren came to Jersey where he discussed the details with his co-defendant Welsh. The prosecution alleged that the conspiracy began in late June 2007 when Warren first visited Jersey and it ended with the arrest of the defendants between 21^st and 23^rd July of that year. Advocate Baker described it as a determined conspiracy committed over some time but also, in his words, as half-baked and hopeless.

7. Advocate Baker and other Advocates urged us to reduce the sentences which were otherwise appropriate in order to reflect the Court's disapproval of certain conduct by the Jersey Police. We are aware that this case has been, and no doubt will be, widely reported. We repeat the disapproval already expressed at the trial and by the Court of Appeal and by me in earlier proceedings. The Court wholly endorses the comments which I made during the abuse of process hearing, that in installing the surveillance device in the hired car, contrary to French and European law, and in lying to the French Police, the conduct of the Jersey Police was most reprehensible, unlawful and regrettable. We do not subscribe to the notion that the end justifies the means. It should be recognised that such behaviour might have the effect of jeopardising the mutual co-operation which has been developed over several years between Jersey law enforcement agencies and their continental counterparts. However, we do not regard it as being our role to discipline the Police and we regard these matters as being irrelevant and inappropriate to our assessment of the appropriate sentences. This is a novel proposition, unsupported by any relevant authorities.

8. In concluding or considering the starting points and the actual sentences themselves, the Court sees no reason to distinguish between a conspiracy on the one hand and the actual commission of a substantive offence on the other, the maximum penalty is the same. In the present case the reason that the conspiracy did not come to fruition was not because it was abandoned but because of intervention by the police. That concludes the Court's general observations. We will now sentence the individual defendants one by one.

9. Therefore we come to consider the case of Curtis Warren. We make it clear that we do not sentence him because of his record or notoriety. Nevertheless he has been shown to be the mastermind behind the planned importation, who provided the contacts in Holland and the source of supply. We recognise that he has been in prison for a long time but we regret to note that very shortly after being released he embarked upon another substantial drug-trafficking enterprise. We agree that the starting point of 13 years proposed by the Crown is appropriate in his case. We regret to say that we can see no mitigation. We have no social enquiry report upon him and no material upon which we could find there was any mitigation or mitigating circumstances. We recognise that he has been in custody in this case since July 2007, that of course will count towards his sentence. We have no wish to crush him, nevertheless we see no alternative but to impose a sentence of 13 years' imprisonment.

10. Jonathan Welsh, you were Warren's lieutenant and administrator and you made the arrangements on the ground. You recruited the other defendants in Jersey. You travelled to Amsterdam to make the detailed arrangements for the purchase and transportation of the drugs, if it had not been for you this offence would not have happened in Jersey. Advocate Fitz is unable to point to any significant mitigation and we do not have the benefit of a social enquiry report because you refused to see a probation officer. We recognise that you have been in custody since July 2007, that of course will count towards your sentence. In your case the Crown propose a starting point of 12 years and that appears to the Court to be the appropriate starting point. Since we have no mitigating circumstances before us, we sentence you to a period of 12 years' imprisonment.

11. James O'Brien, you were recruited at a late stage in this conspiracy, on the 15^th July, 2007. At that time your boat was on a trailer in a field. It is questionable whether it was seaworthy. Nevertheless you were asked to participate and you agreed to do so, on the basis that you could provide and navigate a boat for the purpose of transporting drugs from the Normandy coast to Jersey. Your role is significantly less than that of your co-defendants Warren and Welsh. You made no financial contribution. The Court feels that the starting point of 11 years proposed by the Crown is too high in your case. The Court adopts a starting point of 10 years. Is there any mitigation to set against that? You have a bad record but we do not sentence you on the basis of your record though we note that you were released from prison only shortly before becoming involved in the present offence. We bear in mind your good work record. Otherwise, in our view, there is no real mitigation in your case. We recognise that you have been in custody since July 2007, that will count towards your sentence. The sentence is one of 10 years' imprisonment.

12. Jason Woodward, Paul Hunt and Oliver Lucas, two of you three defendants were only 20 years old at the time this offence was committed and Hunt was only 25. The Court finds it difficult to understand why any of you became involved in it. But on the evidence, you all agreed to subscribe to this enterprise and presumably you expected to make money out of it. We take the view that the Crown's proposed starting point of 11 years is too high in all the circumstances. We propose to adopt a starting point of 9 years in each case.

13. We look to see whether any mitigation is available. We note that you all agreed to be interviewed by probation officers so we have the advantage of social enquiry reports in each of your cases. We have also read all the letters from those who care for you and who support you by providing references. Two of you have relevant previous convictions for drug-related offences but none of you have been sentenced to a custodial sentence. You have all experienced difficult backgrounds. We have read all about them. We do not propose to rehearse them in public but we know about them. You have all made constructive use of your time in custody for this case, and have done your best to improve yourselves and your future prospects while in custody, though Woodward has been on bail for most of the time and only recently taken into custody. We recognise in the cases of Hunt and Lucas that you have been in custody since July 2007, that will count towards your sentence. Lucas came into the conspiracy at a later stage than the other two but you all agreed to subscribe money to the enterprise.

14. We are satisfied that the £350 found in Hunt's possession was intended by him to be used for the purpose of committing the offence and we order forfeiture of that money. We take the view that your roles in the conspiracy entitles us to adopt lower starting points than those proposed by the Crown as we have already said. We then look at the mitigating circumstances which in all your cases are significant. Your participation was considerably less than that of the other three defendants. We have in mind the submissions made on your behalf by your Advocates. We do not propose to distinguish between you.

15. The sentence which we impose on each of you will be one of 5 years' imprisonment. The time you have spent in custody will of course count towards those sentences. In Lucas' case we revoke the Community Service Order to which you are at present subject.

Authorities

Campbell-v-AG [1995] JLR 136.

Styles and Others-v-AG [2006] JCA 095.

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