[2004]JRC163
ROYAL COURT
(Samedi Division)
13th September 2004
|
Before:
|
Sir Richard Tucker, Commissioner, and Jurats
de Veulle, Tibbo, Le Breton, Clapham, King and Newcombe.
|
The Attorney General
-v-
Lawrence Anthony Durkin;
Rodney Julian Bevis;
Jeremy Edwin Howard;
Gavin David Norman Hartley.
Sentencing by the
Superior Number of the Royal Court,
to which the defendants were remanded by the Inferior Number on 18th August, 2004
as follows:
Lawrence Anthony Durkin
|
1 count of:
|
conspiracy to contravene Article 61 of the Customs
and Excise (Jersey) Law 1999
Count 1: heroin
|
|
6 counts of:
|
possession of a controlled drug, contrary to
Article 6(1) of the Misuse of Drugs (Jersey)
Law 1978
Count 3: heroin
Count 5: heroin
Count 7: heroin
Count 9: heroin
Count 12: cannabis resin
Count 15: diazepam
|
|
2 counts of:
|
supplying a controlled drug, contrary to
Article 5(b) of the Misuse of Drugs (Jersey)
Law 1978
Count 4: heroin
Count 8: heroin
|
|
3 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
Count 22: heroin
Count 23: heroin
Count 24: heroin
|
Age: 27.
Plea: Count
1: Guilty, following conviction at Assize trial on 18th August, 2004.
Count 4, 5, 7, 8, 9, 12,
15, 22, 23, 24: Guilty.
The Crown accepted Not
Guilty pleas to Count 2, 6, 10, 11, 13, 14 and 16.
Details of Offence:
The Police undertook a covert
surveillance operation at Durkin’s home address. Technical equipment was deployed at
Durkin’s home address which allowed the Police to monitor and evidence
persons frequenting the premises and to monitor and evidentially record the
conversations that took place within Durkin’s flat. Therefore, the evidence against the
accused was essentially the words coming from the mouths of the accused. It was the Crown’s contention that
the evidence was not realistically open to challenge by the accused.
Count 1 involved Durkin and Howard
and related to a conspiracy entered into by the accused to import into Jersey a kilo of heroin and the importation was to be
facilitated by an individual known as “Tony” who was based in Liverpool.
The conspiracy was not brought to fruition simply because of the
unavailability of a suitable consignment of heroin from Liverpool. The transcripts contained recordings of
Durkin and Howard discussing large sums of money and the sending of sums of money
to the United Kingdom. The transcripts also revealed Durkin and
Howard endeavouring to collect in money and there were references to monies
belonging to them having been “buried” and numerous references to
them being owed sums of money by a variety of people. Those sums varied from £100s to
£1,000s. The purchase price
of the kilo of heroin from the United Kingdom was to be between £18,000
and £20,000 and the expert evidence provided at trial by the Prosecution
was that, had that quantity of heroin been imported and sold on the streets of
Jersey in its usual form as “£50 bags”, then the potential
profit would have been between £306,180 and £459,270. The wholesale price of a kilo of heroin
in Jersey was between £153,090 and
£204,120.
Durkin and Howard pleaded not guilty
to this count, but following an Assize trial, were found guilty. Neither gave evidence on their own
behalf. The verdict of the Jury was
unanimous.
Counts 3 and 4 on the indictment
related to the possession of 4 grams of Thai white heroin which Durkin had
brought with him back from Thailand,
and upon his return, he supplied some of the heroin to Bevis. Durkin also brought back with him a
quantity of diazepam tablets and, at the time of his arrest, a total of 426
tablets and these facts gave rise to Count 15 of the indictment.
Durkin and Howard travelled to the United Kingdom
on 3rd March, 2003. Upon his return Durkin had imported 1.5
grams of heroin by concealing the same in his mouth. Durkin was heard to discuss that a
postal importation had also been organised for the following day. Durkin was heard to make a telephone
call to Hartley requesting his assistance on the next day. On the next day a postal importation of
3.16 grams of heroin was received into the Island
and delivered to an address. Durkin
and Hartley, who were under observation by the Police, were seen to approach
the address and following the arrival of the postman, Hartley collected a
package which he then handed to Durkin.
The package contained 3.16 grams of heroin which had a local street
price of between £948 and £1,422. The wholesale value was between
£474 and £632. These
facts gave rise to Counts 19, 22 and 23 on the indictment. When detained by the Police, Durkin was
also found to be in possession of 542 milligrams of heroin and the sum of
£181.91 in cash. The heroin
had a street price of £150 to £222 (wholesale £55 to
£100). This quantity of
heroin gave rise to Count 5 on the indictment.
On the same day, i.e. 4th March 2003, a
second postal package containing 3.26 grams of heroin was intercepted at an
address in the Parish of St John.
This quantity had a street value of between £978 and £1,476
and a wholesale value of between £489 and £652. The package had the same post mark as
the package found in possession of Durkin and also contained the same packaging
and the same handwriting. Both
postal packages contained heroin with a purity of 44% by weight of
diamorphine. A forensic examination
of the two packages was undertaken and Howard’s fingerprints were
revealed on both packages. These
facts gave rise to Count 25 on the indictment.
On 7th March, 2003 Durkin and Howard
once again travelled to England
and the travel was funded by Bevis.
Durkin returned having imported 2.1 grams of heroin. This had a street value of between
£650 and £1,000 and a wholesale value of between £350 and
£500. These facts gave rise
to Counts 7, 8 and 24 on the indictment.
Durkin was arrested in the street on
11th April, 2003
and was found to be in possession of 1.39 grams of heroin. It was divided into 10 individual bags
which had a street value of £500 or a wholesale value of between
£200 and £278. These
facts gave rise to Count 9.
Following his arrest, a search
warrant was undertaken at Durkin’s home address and 2.73 grams of
cannabis resin were discovered.
This had a street value of £15 (wholesale value £11 to
£13). These facts gave rise
to Count 12. At this search the 426
diazepam tablets were located. A
set of electronic scales were also found and they were subject to a forensic
analysis which revealed traces of diamorphine.
In relation to Count 21, Bevis made
admissions to the effect that he had supplied heroin to a number of
unidentified persons towards the end of March, 2003. He had purchased 3.4 grams of heroin
from Durkin for the sum of £550 and, whilst he had used the majority of
that heroin for himself, he had sold a small amount to friends who were already
heroin users so as to raise funds to repay Durkin. Durkin was not the subject of any charge
in relation to the allegations made by Bevis.
Count 17 related to the larceny of a
mobile phone, valued at £200, by Howard whilst he was in custody at H.M.
Prison, La Moye. The phone was
recovered and Howard apologised for his actions.
At the time of Howard’s
arrest, a search of his premises was undertaken and the sum of £5,970 in
cash was discovered under the mattress in his bedroom. Two sets of scales were also located
and, once analysed, they were found to contain traces of diamorphine. Bevis, at the time of his arrest, had
the sum of £2,015, which the Crown subsequently accepted, was from
legitimate sources.
All four accused were
interviewed. Durkin and Howard were
not particularly co-operative. Both
denied any involvement with “Tony” and denied any conspiracy. Both claimed that what was said on the
transcripts was simply “empty talk”. Bevis was initially un-cooperative but
became more co-operative after the transcripts were read to him and admitted
his involvement in some of the other offences, but denied any involvement in
the conspiracy. Hartley answered
all questions “No comment”.
The Crown, in relation to Count 1,
took as its starting point a sentence of 18 years’ imprisonment. This was the first occasion upon which
the Royal Court
had been called upon to sentence defendants involved in the drug trafficking of
a kilo of heroin. It was the
Crown’s view that the fact that the conspiracy had not been completed was
of no significance for the purposes of sentencing. It was not something which mitigated or
reduced the culpability of Durkin and Howard. For the purpose of the guidelines this
case was outside the specific scope of the Rimmer and Ors. –v- AG
[2001] JLR 373 guidelines.
In relation to Counts 19, 22, 23, 24
and 25 on the indictment the Crown took, as a starting point, a sentence of 7
years’ imprisonment on each of those counts.
Details of Mitigation:
It was the Crown’s
contention that Durkin had some residual mitigation because of his age. He did not have the benefit of the
substantial mitigation available for a guilty plea on Count 1. He was entitled to some credit in
relation to the other guilty pleas on the other counts but not a one third
reduction, given the strength of the evidence against him, on those
counts. He did not have the benefit
of good character and had previous offences involving drugs. In the Crown’s view, he was not
co-operative with the Police. He
did not have the benefit of remorse.
Character references had been produced and the Crown gave credit for
those references and, in particular, the information contained within the
various reports.
The Defence contended that some
reduction should be made from the Crown’s starting point because the
conspiracy had not been completed.
By analogy, a person who withdrew from a conspiracy was entitled to some
reduction in sentence as compared to someone who remained in the
conspiracy. It was also contended
that this was not a sophisticated conspiracy as no practical arrangements for
its importation had been made. It
was contended that the starting point should be less than 16 years and that, in
relation to the other offences, regard should be had to the totality
principle. It was emphasised that
the offences of supply were social supply and involved very small quantities of
drugs being supplied to Bevis with no gain. In relation to some offences, there were
offences of personal possession, e.g. Counts 7 and 8, which overlapped with
Count 24 and it was suggested that there should be no separate penalties for
each of those offences. Durkin
should be given credit for those other counts and suggested that he was co-operative
in interview. He had been on remand
for the equivalent of 2 years and 26 days.
It was noted that he had only been out of prison for a previous offence
for a matter of months before he had become involved in these offences. Extracts from the Social Enquiry Report
etc. were highlighted in relation to his difficult background. It was suggested that Durkin was ready
for a fresh start and that, in order to achieve this, he would need to leave
the jurisdiction to break his ties with his friends etc. The intention would be that he would
return to his family in Wales.
Previous Convictions:
Numerous previous offences,
including 18 for fraud and like offences, 3 for theft and like offences, and 14
previous drug offences.
Conclusions:
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Count 1:
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15 years’ imprisonment (18 year
starting point)
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Count 3:
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18 months’ imprisonment, concurrent
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Count 4:
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2 years’ imprisonment, concurrent
|
|
Count 5:
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18 months’ imprisonment, concurrent
|
|
Count 7:
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18 months’ imprisonment, concurrent
|
|
Count 8:
|
2 years’ imprisonment, concurrent
|
|
Count 9:
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18 months’ imprisonment, concurrent
|
|
Count 12:
|
1 month’s imprisonment, concurrent
|
|
Count 15:
|
2 months’ imprisonment, concurrent
|
|
Count 22:
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5 years’ imprisonment, concurrent (7
year starting point)
|
|
Count 23:
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5 years’ imprisonment, concurrent (7
year starting point)
|
|
Count 24:
|
5 years’ imprisonment, concurrent (7
year starting point)
|
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TOTAL
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15 years’ imprisonment
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Sentence and Observations of Court:
It is recognised
throughout the world that heroin is a dangerous and addictive drug which has
the effect of inducing a craving and which can produce an existence of misery,
degradation and crime. Facilities
are available to help rid those of their addiction if they are willing to take
help. The Courts in civilised
countries are aware of the dangers and impose sentences, which it is hoped,
will deter those becoming involved in drug trafficking etc. Those persons who are involved in
conspiracies or importation are dealt with by severe sentences of
imprisonment. The level of a
sentence is dependant upon a number of factors:
1. Prevalence of use as
recognised by the local Courts and damage to society. The Court of Appeal in Jersey
has established guidelines which are significantly higher than those in the United Kingdom.
2. Weight and value of
the drugs involved and the level of purity and level of involvement of the
individual.
3. Extent of the
financial profit expected.
4. Was the individual
involved in importation or whether there was a conspiracy, or the supply of
drugs or simple possession of the same?
5. The level of market transaction. This ranges from social supply to large
importations. The top end of the
scale is wholesale importation which is intended for distribution purely for
financial gain.
6. The level of
planning, sophistication and experience which lay behind a conspiracy.
The Court has taken
into account all of these matters.
The Court has had
regard to the ages of the Defendants and also the length of time that they
spent on remand, which equates to periods of 2 years or more. The Court has also had regard to all the
material placed before it, both by the Crown and by the Defendants. The Court has read the reports and the
various letters, some of which were very moving.
Durkin and Howard
In relation to Count
1, the Court did not distinguish between Durkin and Howard. The Crown did not seek to distinguish
between them at trial and neither has Defence Counsel. Therefore, the sentence on both accused
will be the same. There was no plea
of guilty and therefore no discount.
In the Court’s view very little of any mitigation was available to
them. It was correct that families
will be affected but the Court also has to have regard to the effect on other
members of the community. The Jury
found a conspiracy existed. It may
well be that it was not a well planned or sophisticated conspiracy. However, it was a conspiracy to import a
substantial quantity. The
Defendants had conspired together to import 1 kilo of heroin. The Court had some difficulty in fixing
the starting point and linking a conspiracy to import to the Rimmer guidelines. The Court took 15 years as a starting
point in accordance with the Defence submissions. The Court took account of the mitigation
and also bore in mind that the conspiracy did not come to fruition. Durkin and Howard were to be sentenced
to 13 years’ imprisonment on Count 1.
In relation to Counts
22, 23, 24 and 25, the Court accepted that the importations were for personal
use and that these counts overlapped with Counts 5, 7 and 8. Both accused had heavy involvement in
the Jersey drug scene. The Court took as its starting point,
for those offences, one of 6 years’ imprisonment. Sentences of 4 years’ imprisonment
were imposed concurrent on those counts.
In relation to the
counts involving supply, the accused were entitled to some credit for the
guilty pleas but not to the extent of a one third reduction. The Court was not invited to apply
starting point principles to Counts 4 and 8 and declined to use it for Count
19.
In relation to Count 17,
being the larceny of a phone by Howard.
This offence was in a different category and one month’s
imprisonment was imposed on Howard.
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Count 1:
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13 years’ imprisonment (15 year
starting point)
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Count 3:
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18 months’ imprisonment, concurrent
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Count 4:
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2 years’ imprisonment, concurrent
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Count 5:
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no separate penalty
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Count 7:
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no separate penalty
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Count 8:
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2 years’ imprisonment, concurrent
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Count 9:
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18 months’ imprisonment, concurrent
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Count 12:
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1 month’s imprisonment, concurrent
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Count 15:
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2 months’ imprisonment, concurrent
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Count 22:
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4 years’ imprisonment, concurrent
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Count 23:
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4 years’ imprisonment, concurrent
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Count 24:
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4 years’ imprisonment, concurrent
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TOTAL:
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13 years’ imprisonment
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Rodney Julian
Bevis
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1 count of:
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supplying a controlled drug, contrary to
Article 5(b) of the Misuse of Drugs (Jersey)
Law 1978
Count 1: heroin
|
|
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.
Count 23: heroin
Count 24: heroin
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Age: 35.
Plea: Guilty.
Details of Offence:
See
Durkin above.
Details of Mitigation:
In relation to Bevis, the Crown,
having noted that he had also committed serious drug offences, contended that
he did have the advantage of substantial mitigation. Whilst he was aged 35 and did not have
the benefit of good character, having previously committed drug offences, where
he differed from the other co-accused was that he had given a statement to the
Police and had given evidence on behalf of the Prosecution against Durkin and
Howard at trial. The Crown readily
acknowledged that the statement and evidence of Bevis was of significant
assistance and, in consequence, contended Bevis was entitled to receive a
substantial reduction in his sentence.
The Crown also had regard to all of the other information contained
within the reports and letters and documents before the Court.
The Defence supported and
reinforced the Crown’s assessment of Bevis’ mitigation. In terms of starting points relevant to
Bevis, the Defence suggested that the starting point should be one of 5 years
and not 7 years. Bevis however, had
been very courageous in not only providing the statement but also in giving
evidence. Extracts from his
statement were read to give an indication of the evidence that he had
provided. He was entitled to
substantial credit from the Court as it was in the public interest that persons
in Bevis’ position should come forward and give evidence against others.
Previous Convictions:
14 previous drug offences, 3
offences against property, 3 offences of dishonesty and other miscellaneous
offences.
Conclusions:
|
Count 21:
|
2 years’ Probation Order (7 year
starting point)
|
|
Count 23:
|
2 years’ Probation Order, concurrent
|
|
Count 24:
|
2 years’ Probation Order, concurrent
|
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TOTAL:
|
2 years’ Probation Order
|
Sentence and Observations of Court:
Conclusions granted.
The Court considered
his case to be very different from the other Defendants. His sentence had caused the Court a
considerable amount of concern. He
was aged 35 and therefore the oldest of the Defendants. He had pleaded guilty to the other
offences involving him at an early stage and had made a statement and gave
evidence. He had been very
co-operative. It was a matter of
public knowledge that he had given evidence and he was described as being
courageous in doing so, particularly as he shared prison with his
co-accused. The Court recognised
that those who co-operate are entitled to receive a substantial discount in
recognition of that assistance. The
Court imposes a Probation Order concurrent on each of the counts, but warned
Bevis that the effect of this was to extend his period at risk to recall, were
he to breach his Probation Order during the period of that Order.
Jeremy Edwin
Howard
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1 count of:
|
conspiracy to contravene Article 61 of the Customs
and Excise (Jersey) Law 1999
Count 1: heroin
|
|
1 count of:
|
larceny (Count 17)
|
|
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
Count 22: heroin
Count 25: heroin
|
Age: 33.
Plea: Count
1: Guilty, following conviction at Assize trial on 18th August 2004.
Count 17, 22, 25: Guilty
Details of Offence:
See
Durkin above.
Details of Mitigation:
In the Crown’s view, Howard,
who is aged 33, did not have the benefit of substantial mitigation as there was
no guilty plea in relation to Count 1.
He did have the mitigation available for the guilty pleas to the other
counts but, again, regard had to be had to the strength of the evidence against
him. Nor did he have the benefit of
good character as he had previous convictions for drug offending. Nor did he have the benefit of remorse
as he did not accept the verdict of the Jury in relation to Count 1. The Crown had regard to the personal
matters contained within the various reports and letters of references provided
by the Defendant.
The Defence contended that Howard
had expressed remorse in relation to the offences to which he had pleaded
guilty, but did not accept his guilt in relation to Count 1. It was agreed that sentences moved for
in relation to the other counts should be concurrent. It was contended that the starting point
on Count 1 was too high and it was contended that the conspiracy was not a
thought-out conspiracy but could be described as “shoddy”. The drugs never actually arrived. It was suggested that a starting point
of less than 16 years and no more than 14 years was appropriate. In relation to the other counts, the
starting point should be 5 years and not 7 years as sought by the Crown. It contended that he had credit for his
guilty pleas to the other counts and he had been in custody for the equivalent
of 2 years and 24 days. He had been
the victim of a serious assault whilst in custody. His wife was in Court and there were
letters of remorse for the offences to which he pleaded guilty before the
Court. Howard now had the desire to
help people who were on drugs and had decided to start his life afresh. The Defence requested the Court to be as
lenient as it could be in the circumstances.
Previous Convictions:
2 previous theft and related
offences, and 9 drug offences.
Conclusions:
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Count 1:
|
15 years’ imprisonment (starting
point: 18 years)
|
|
Count 17:
|
1 month’s imprisonment, concurrent
|
|
Count 22:
|
5 years’ imprisonment, concurrent,
(starting point: 7 years’ imprisonment)
|
|
Count 25:
|
5 years’ imprisonment, concurrent,
(starting point: 7 years’ imprisonment)
|
|
TOTAL:
|
15 years’ imprisonment
|
Sentence and Observations of Court:
Durkin and Howard
In relation to Count
1, the Court did not distinguish between Durkin and Howard. The Crown did not seek to distinguish
between them at trial and neither has Defence Counsel. Therefore, the sentence on both accused
will be the same. There was no plea
of guilty and therefore no discount.
In the Court’s view very little of any mitigation was available to
them. It was correct that families
will be affected but the Court also has to have regard to the effect on other
members of the community. The Jury
found a conspiracy existed. It may
well be that it was not a well planned or sophisticated conspiracy. However, it was a conspiracy to import a
substantial quantity. The
Defendants had conspired together to import 1 kilo of heroin. The Court had some difficulty in fixing
the starting point and linking a conspiracy to import to the Rimmer guidelines. The Court took 15 years as a starting
point in accordance with the Defence submissions. The Court took account of the mitigation
and also bore in mind that the conspiracy did not come to fruition. Durkin and Howard were to be sentenced
to 13 years’ imprisonment on Count 1.
In relation to Counts
22, 23, 24 and 25, the Court accepted that the importations were for personal
use and that these counts overlapped with Counts 5, 7 and 8. Both accused had heavy involvement in
the Jersey drug scene. The Court took as its starting point,
for those offences, one of 6 years’ imprisonment. Sentences of 4 years’ imprisonment
were imposed concurrent on those counts.
In relation to the
counts involving supply, the accused were entitled to some credit for the
guilty pleas but not to the extent of a one third reduction. The Court was not invited to apply
starting point principles to Counts 4 and 8 and declined to use it for Count
19.
In relation to Count
17, being the larceny of a phone by Howard. This offence was in a different category
and one month’s imprisonment was imposed on Howard.
|
Count 1:
|
13 years’ imprisonment (starting
point: 15 years)
|
|
|
Count 17:
|
1 month imprisonment, concurrent
|
|
|
Count 22:
|
4 years’ imprisonment, concurrent,
(starting point: 7 years’ imprisonment)
|
|
|
Count 25
|
4 years’ imprisonment, concurrent,
(starting point: 7 years’ imprisonment)
|
|
|
TOTAL:
|
13 years’ imprisonment
|
|
Gavin David
Norman Hartley
|
1 count of:
|
supplying a controlled drug, contrary to
Article 5(b) of the Misuse of Drugs (Jersey)
Law 1978
Count 19: heroin
|
Breach of a 70 hour
Community Service Order made in the Magistrate’s Court on 15th May 2003 in
relation to 1 count of larceny.
[Count 18 of the indictment was not proceeded with]
Age: 26.
Plea: Guilty;
breach admitted.
Details of Offence:
See
Durkin above.
Details of Mitigation:
In relation to Hartley, the Crown
contended that he was aged 26 and therefore had the benefit of residual
youth. Hid did not have the benefit
of good character and had drug related offences in the past. Whilst he was not co-operative in
interview, he had entered a guilty plea at an early occasion and was entitled
to credit for that. The Crown categorised
his involvement as being Durkin’s “gofer” in that he
collected the postal package and handed it to Durkin. The Crown also had regard to the
contents of the reports and character reference produced on behalf of Hartley.
The Defence contended that
Hartley’s involvement was peripheral only. He played a minor involvement and there
was only a technical supplier. He
was not a major player and his involvement lasted, probably, no more than two
minutes. Hartley wanted to complete
his sentence and then leave the Island, to
overcome his drug problems, with his family in Halifax.
Previous Convictions:
4 previous drug offences, 7 theft
and related offences and 2 other miscellaneous offences.
Conclusions:
|
Count 19:
|
3 years’ imprisonment
|
|
Breach:
|
2 months’ imprisonment, consecutive
|
|
TOTAL:
|
3 years,
2 months’ imprisonment
|
Sentence and Observations of Court:
Hartley faced one
count, being Count 19, for supply of heroin to Durkin. It was a small amount being 3.16
grams. The circumstances were
unusual and he only had possession of the heroin for a short time. He carried if for a short time. The Court considered a 2-year term of
imprisonment an appropriate sentence and imposed a consecutive sentence of 2
months for breach of a Community Service Order previously imposed by the
Magistrate’s Court.
|
Count 19:
|
2 years’ imprisonment (7 year starting
point)
|
|
Breach:
|
2 months’ imprisonment, consecutive
|
|
TOTAL:
|
2 years, 2 months’ imprisonment
|
[A Not Guilty plea was
accepted on Count 20 of the indictment, laid against a co-defendant, who was
discharged from the prosecution.]
J.C. Gollop, Esq., Crown Advocate.
Advocate J. Bell for L.A. Durkin.
Advocate R. McRae for
R.J. Bevis.
Advocate R. Juste for J.E. Howard.
Advocate Mrs S.A. Pearmain for G.D.N.
Hartley.
JUDGMENT
THE commissioner:
1.
Lawrence
Durkin, Jeremy Howard, Rodney Bevis and Gavin Hartley, you can remain seated
for the moment. It is recognised
throughout the world that heroin is a dangerous and addictive drug. The evil effect which it has on those
who take it is to induce a craving which reduces them to an existence of
misery, degradation and crime, often violent crime. Facilities are usually available for heroin
users who wish to make use of them, to help them rid themselves of their
habit. Regrettably, however, the
drug often takes such a hold that users are unwilling to take treatment or
advice, or if they do so, find that they subsequently relapse.
2.
Courts in
all civilised countries are aware of these dangers and take such steps as they
can to prevent the supply and use of heroin by imposing such sentences as, it
is hoped, will deter people from spreading the use of the drug. Those who import or conspire to import
or who supply heroin can accordingly expect to be dealt with by severe
sentences of imprisonment and those convicted of possession of heroin by
somewhat lesser sentences.
3.
The length
of sentences for drugs offences will depend upon a number of factors. First, the prevalence of use in a
particular place and the problems and damage which it inflicts on the local
community. Thus in Jersey, the Court of Appeal has established guidelines,
or starting points, for sentencing which are significantly higher than those
adopted in the United
Kingdom. Secondly, the weight and amount of the
drug involved and, if ascertainable, its level of purity and, accordingly, its
value, either on a wholesale or retail basis. Thirdly, the extent of the financial
profit which might be expected to or actually did result from a transaction. Fourthly, and importantly, whether the
offence is one of importation or, as in this case, conspiracy to import; of
supply or of simple possession. Fifthly,
the market at which a transaction was or was intended to be directed. Importation or supply on a small scale
on a social basis to existing users or participants lies at one end of the
scale. Wholesale importation
intended for extended distribution to a wider market on a commercial basis is
at the other end of the scale. Sixthly,
the planning, experience, and sophistication that lay behind the conspiracy if that
is the charge.
4.
The Court
has taken account of all these factors, and of the ages of these defendants:
Durkin is now 27; Howard, 33; Bevis, 35 and Hartley, 26. The Court also bears in mind that they
have all been detained in custody on remand for periods amounting, after
consideration is given for remission, to sentences of imprisonment of 2 years
or more.
5.
The Court
has had regard to all the material which has been placed before it, not only by
the Crown but also by the Defence, and has read the Social Enquiry Reports,
where appropriate, the Psychological and other Reports, and the letters, some
of them very moving letters, from members of defendants’ families and
others who know them and, in some cases, from medical practitioners who have
treated them.
6.
And so we
come to the individual counts and the individual defendants. Will the defendants Durkin and Howard
please stand. In dealing with Count
1 the Court has decided to make no distinction as between these two
defendants. The Prosecution has not
sought to draw any distinction and nor has Counsel for either of them, and
therefore the sentences on you both, so far as Count 1 is concerned, will be
the same. There has been no plea of
guilty and therefore there can be no discount from the sentence on that
account. In the Court’s view,
there is very little mitigation. As
has been said, we have read the material contained in letters and reports. It is very sad, as always, that families
are affected but we have to have regard to the potential effect on members of
the community.
7.
The Jury
have found that a conspiracy existed.
It may not have been a very well planned or sophisticated conspiracy but
it was, nevertheless, as the Jury concluded, a criminal agreement to import a
substantial amount of heroin into Jersey where
drug addiction is a major problem. By
their verdict, the Jury expressly found that you two conspired together to
import a kilogram of heroin. There
can be no doubt that such an amount far exceeds that required for private or
social use and was intended for commercial distribution at a substantial
profit.
8.
So far as
the starting point for the sentence is concerned, the Court has some difficulty
in linking a conspiracy to import with the guidelines set out in the case of Rimmer
and Ors. –v- AG [2001] JLR 373.
We have some hesitation about selecting a starting point, but since we
feel ourselves obliged to do so, we announce it as 15 years. We believe that to be in accordance with
Defence Counsels’ submissions.
We set against that such mitigation as exists. We bear in mind, in particular, the fact
that the conspiracy did not come to fruition and that, in fact, the kilo of
heroin did not reach this Island. Having set the starting point at 15
years, we sentence each of you to 13 years’ imprisonment.
9.
We now
deal with the remaining counts so far as you two are concerned. Not in the order set out in the
indictment but dealing next with the more serious offences charging
importation. These are contained in
Counts 22, 23 and 24 so far as you, Durkin, are concerned and in Counts 22 and
25 so far as Howard is concerned.
The Court accepts that these are all importations of small amounts for
personal use. We recognise that
there is a certain amount of overlapping with earlier counts in the
indictments, Counts 5, 7 and 8. We
have regard to your degree of involvement in the Jersey
drugs’ scene and in the supply of heroin. So far as these counts are concerned, we
adopt a starting point of 6 years and sentence each of you to 4 years’
imprisonment. All these sentences and
the others which we impose are concurrent with each other and with the
sentences of 13 years, imposed on Count 1.
10. We come next to deal with those counts alleging
supply of drugs. We recognise in
relation to these counts, as in relation to the counts of importation and the
other counts with which we shall deal, that you pleaded guilty, not only you
but the other two defendants as well, and therefore that you are entitled to
some discount, albeit perhaps not for the full one third, but some recognition
of the fact that you did plead guilty and owned up to these offences.
11. We are not invited, it seems to us, to apply a
starting point in relation to counts 4 and 8 and we decline to set a starting
point in any event so far as Count 19 is concerned. In Count 4, you Durkin have pleaded
guilty to supplying heroin to Bevis who was an existing user. We sentence you to 2 years’
imprisonment. In Count 8, you,
Durkin, have pleaded guilty to, again, supplying a small amount of heroin to
Bevis. The sentence is again one of
2 years’ imprisonment. Count
19 is one in which Hartley is concerned and we will deal with him in one moment.
12. Next we deal with those counts charging simple
possession of various drugs, most of them heroin but in two cases other
drugs. In Count 3, you Durkin are
charged with possession of heroin, a small amount, which you imported here from
Thailand. You have not been charged with
importation, but simply with possession. We sentence you to 18 months’
imprisonment. In Counts 5 and 7,
you are also charged with possession of heroin, but since we are satisfied that
these overlap with some of the charges relating to importation, we do not
impose any separate penalty in relation to those counts. On Count 9, you, Durkin, are charged
with possession of heroin. This was
the occasion when you were found in the street with ten bags of the drug in
your mouth, we sentence you to 18 months’ imprisonment. Count 12 charges you with possession of
cannabis resin. You pleaded guilty
to it; we sentence you to 1 month’s imprisonment recognising that this
was cannabis resin, not heroin. In
Count 15 you are charged with possession of diazepam. We sentence you to 2 months’
imprisonment following your plea of guilty and recognising that this
represented some tablets that you had brought back from Thailand, and
again that it is not heroin that we are concerned with. That therefore is the sentencing on you
two, bringing a total in each case of 13 years’ imprisonment.
13. There remains Count 17, the theft of a mobile
telephone by Howard, on which the sentence is 1 month’s
imprisonment. You have pleaded
guilty to it and of course that is concurrent with the other sentences. Take those two defendants down please.
14. Gavin Hartley, will you stand up please. You are charged only in one count in the
indictment, Count 19, supplying heroin to the Defendant, Durkin. It was a small amount of 3.16
grams. The circumstances were, to
say the least, unusual. You had it
only for a very short time; you carried it only a short distance. We are not prepared to set a starting
point for circumstances so unique and we take the view that, bearing in mind
your plea of guilty, 2 years’ imprisonment is the appropriate sentence,
which is the sentence we impose.
15. So far as the breach of the Community Service
Order is concerned, that has given us some difficulty. We believe that the fairest and most
just course, from everyone’s point of view, including your own, in
dealing with you, is to sentence you to 2 months’ imprisonment
consecutive. The total, in your
case, is therefore 2 years and 2 months’ imprisonment. You have probably served most of that by
now. You can go down.
16. Will you stand up please, Rodney Bevis. Your case is very different to that of
the other defendants and it has caused us considerable concern. You are now aged 35; in fact the oldest
of the defendants in the dock. However, you alone of the defendants have given
evidence in his case. You made a
statement to the police at an early stage and you pleaded guilty to such
offences as you were concerned in.
So far as you are concerned, those were Counts 21, supply of heroin to
persons unknown; Count 23, importing heroin, a small amount from the United
Kingdom and Count 24, another importation of heroin, a small amount from the
United Kingdom.
17. Not only have you pleaded guilty to those
offences, but you have been very co-operative with the authorities and, as is
public knowledge, you gave evidence in this Court in the trial of two of your
co-defendants. You were courageous
in doing so, particularly as you shared a prison with them.
18. The Court recognise that those who co-operate
in that way are entitled to expect a substantial discount in the sentences
which would otherwise be imposed.
And that discount, we feel, is applicable to you. In recognition of your pleas of guilty
and co-operation and of the fact that you gave evidence for the Prosecution, we
do not propose to sentence you to any further term of imprisonment. I say any further imprisonment because
you have already served the equivalent of over 2 years’ imprisonment and
we can do nothing about that. If we
were to impose a sentence of imprisonment, then having regard to the discount
that we would apply, it would be such that you would probably be released
immediately.
19. Your counsel, very sensibly and you must have
agreed to it, submits that the appropriate way of dealing with you would be to
make a Probation Order with certain conditions. You and he recognise that the effect of
such an order will be to extend your period of liability to recall to prison
and so rather than, in effect, being released at once, you will be under
obligations for a further 2 years.
The Court’s order in your case is a Probation Order for 2
years. The following conditions are
to be observed by you during that period.
That you be of good behaviour and appear before the Court when called
upon to do so; that you be under the supervision of a Probation Officer; that
you reside in such a place and work in such employment as a Probation Officer
shall direct; that you notify the Probation Officer forthwith of any pending
change of residence or employment; that you do not travel outside Jersey
without the written permission of the Chief Probation Officer; that you keep in
touch with the Probation Officer in accordance with such instructions as may,
from time to time, be given by him or her and that, in particular, that if the
Probation Officer so requires you receive visits from him or her at your home;
finally that you attend the Alcohol and Drug Service for the first 12 months of
the 2-year period and in so doing that you shall comply with the directions of
the Alcohol and Drug Service during that 12 month period. Are you willing to abide by those
conditions? If you fail to observe
any of the conditions of your recognisance you will be liable to be arrested
and be sentenced for the offences to which you have pleaded guilty. Do you understand that?
20. We discharge the Probation Order for Gavin
Hartley.
21. The Prosecution commented in their opening on
the States of Jersey Police Officers and their efficiency in being involved in
this operation. The Prosecution
commended them for their dedication and professionalism and, in particular, for
the conduct of the covert surveillance operation which they undertook and
which, there is no doubt, largely contributed to the outcome of the trial over
which I presided. The Court would
wish to endorse those comments and thank and congratulate the Police of the
States of Jersey for all their efforts in bringing these defendants to justice
and thereby reducing the incidence of importation of drugs into this Island.
Advocate Gollop, I would be grateful if you would convey the
Court’s comments to the appropriate authorities.
22. I would like to thank all counsel for their
help and co-operation with the efficient handling of, not only evidence relating
to the interviews, but also of the covert surveillance transcript material. We were able, as a result, to conduct the
trial, I believe, in an efficient and expedient manner and I am grateful to all
counsel for that.
Authorities
Rimmer and Ors. –v- AG [2001]
JLR 373.
Welsh –v- AG [2002] JLR N. 16.
Morgan
and Schlandt –v- AG (24th
April 2001) Jersey Unreported; [2001/88].
AG
–v- Finnigan [2004] JRC016.
Conquer
–v- AG (4th
April 2002) Jersey Unreported; 2002/73.
Whelan: Aspects of Sentencing in the
Superior Courts of Jersey (2nd Ed’n): paras 139-51.
R –v- Aramah (1982) 4 Cr. App.
R. (S) 407.
R –v- Aranguren (1994) 99 Cr.
App. R.
AG
–v- Lascoumes (5th
April, 2002) Jersey Unreported; [2002/76].
AG
–v- Wootton [2003] JRC34.
AG
–v- Le Pavoux & Baumgartner [2003] JRC75.
AG
–v- Disbury, Presume & Bayliss [2004] JRC117.