Jersey Unreported Judgments

[2006]JRC030

ROYAL COURT

(Samedi Division)

1^st March 2006

Before     :

Sir Richard Tucker, Kt., Commissioner, and Jurats Le Breton, Allo, King, Morgan and Quérée.

The Attorney General

-v-

Richard Charles Robert Styles

Joseph Ian Day

Joseph Thomas Carney

Timothy Christopher James

Cliff Alberto De Sousa

Sentencing by the Superior Number of the Royal Court, of the confiscation proceedings adjourned from 24^th November, 2005, against Joseph Ian Day:

S. M. Baker, Esq., Crown Advocate.

Advocate D. Gilbert for Day.

JUDGMENT

THE commissioner:

1.        The defendant, Joseph Dean Day has been convicted of conspiracy to import cannabis resin and has been sentenced to a term of 10 years imprisonment.  The Attorney General has asked the Court to proceed under Article 3 of the Drug Trafficking Offences (Jersey) Law 1988, and to make a confiscation order against the defendant.

2.        The defendant continues to deny complicity in the offence and opposes the application.  Such orders have been made against two co-defendants without objection, albeit in nominal or small amounts. 

3.        The Attorney General has given the Court a statement of matters which he considers relevant in connection with:

i)             Determining whether the defendant has benefited from drug trafficking.

ii)            Assessing the value of the defendants proceeds of drug trafficking.

4.        For the purpose of determining these matters, the Attorney General in his statement calculated the total benefit to the defendant at £358,000.  This was based on evidence as to the minimum wholesale value of the drugs in Jersey, in the absence of any evidence from the defendant as to the source of those monies.  However, in the Crown's skeleton argument and submissions to the Court, a pragmatic approach is adopted whereby the defendants benefit is calculated by reference to the wholesale value of the drugs in Liverpool, £89,000, whence it is to be assumed they came, and by dividing this by three to reflect the shares between the three principal offenders.  The figure thereby arrived at is £29,666.  It is submitted that the Court may assume that the money has come from drug trafficking.  The total amount that may be realised is represented by the defendants' half interest in the equity of his dwelling house in Liverpool, i.e. £20,712.  The Attorney General seeks a confiscation order in this amount with a sentence of 18 months' imprisonment in default.

5.        For the purpose of obtaining information to assist it in carrying out its functions, the Court utilises its powers under Article 7(2) and ordered the defendant to answer a list of questions provided by the Crown.  The information provided by the defendant in response was limited to questions as to how he had paid for the down payment on his house, for mortgage payments and for a previous visit to Jersey.  He claimed to be unable to answer any further questions and maintains his innocence. 

6.        On behalf of the defendant Advocate Gilbert raises a number of objections.  First she relies on the provisions of Article 3, which empower the Court to make a Confiscation Order.  It is submitted that although the power exists, where a person appears before the Court to be sentenced in respect of a drug trafficking offence, the Courts' power to determine whether the person has benefited, is restricted to his benefit from drug trafficking.  The submission is that drug trafficking is to be distinguished from a drug trafficking offence.  The offence of which the defendant was convicted was conspiracy to import a controlled drug.  Advocate Gilbert submits that although such conspiracy is a drug trafficking offence, it is not, drug trafficking.  Reliance is placed upon a passage to this effect in Fortson in Misuse of Drugs and Drug Trafficking Offences 4^th Edition, paragraph 13-206.  In answer to this submission, Crown Advocate Baker relies upon the provisions of Article 3(3) which provide that:

"a person who has at any time --- received any payment or other reward in connection with drug trafficking carried on by the person or another has benefited from drug trafficking"

Drug trafficking is defined in Article 1 as meaning:

"doing or being concerned in c) importing---a controlled drug"

The Crown submit that that is what the defendant has been convicted of conspiring to do.

7.        In the opinion of the Court the Crown's submission is correct.  In the present case the conspiracy came to fruition.  On the facts of the case as the jury must have found them, the defendant was clearly concerned in importing a controlled drug.  Accordingly the Court has power to determine whether he has benefited from doing so.  We are fortified in this decision by the concession made in the defence skeleton argument, that this is a technical objection that may not be sustainable and that the argument may be flawed.  We commend Counsel's frankness but wonder why the point was raised in the first place. 

8.        The second objection relates to the provisions of Article 5(2) which enable the Court to make a number of assumptions for the purpose of determining whether the defendant has benefited from drug trafficking, and if he has, of assessing the value of his proceeds.  The relevant assumption is contained in Article 5(3)(b)

"That any expenditure of the defendant since the beginning of that period (6 years) was met out of payments received by the defendant in connection with drug trafficking carried on by the defendant"

9.        Counsels' submission is that before any assumption can be made it is for the Crown to prove to the Civil Standard of proof that the defendant did expend money on the drugs, and that they have failed to do so.  Our attention is drawn to the case of R v J [2001] 1 Criminal Report Sentencing p 79.  Lord Wolfe CJ said that:

"normally if someone is found in possession of drugs the inference is that they have acquired them and that they have done so by paying cash for them". 

10.      However in that case the sentencing judge had referred to the defendant being "entrusted" with the drugs in question.  As in the present case the defendant did not give evidence.  Lord Wolfe said that that in order to have the benefit of the assumption, the prosecution have to show expenditure.  In view of the words used by the Judge the prosecution had apparently failed to do so. 

11.      Advocate Gilbert reminds the Court that at the sentencing hearing  the Court observed that there was no suggestion that the defendant, or the co-defendant Carney, were the source of the drugs or that they had purchased them from their own resources.  That was an impromptu remark made without consultation and without having the Court's attention drawn either to the Article or to the case of J.  When formally sentencing them, the Court said that they were close to the source of supply and took part in planning of the importation.  There was no doubt that they had been in possession of the drugs at material times, they delivered, or took part in delivering, the drugs to the Aeroplane at Pocklington, and they were in possession of them during the flight to Jersey.  Does the fact that the Crown did not at that stage demur from the Court's remarks prevent the Crown from making other assertions at this stage?  Is the Court in some way bound by previous remarks made during the sentencing exercise and thereby precluded from making an informed assessment at the confiscation proceedings where in any event different standards of proof apply? 

12.      In the view of the Court there is nothing to prevent the Crown from now alleging and proving, if they can, that the defendant expended money on the drugs and nothing to prevent the Court from considering or if need be re-considering whether he did so. 

13.      It is therefore open to the learned Jurats to consider whether the Crown have proved this on the balance of probabilities and if so, whether they should then assume that this expenditure was met out of payments received by the defendant in connection with drug trafficking carried out by him. 

14.      Crown Advocate Baker submits that Courts normally and indeed frequently infer that a drug trafficker has paid for the drugs with which he has dealt.  He relies on the words of Lord Wolfe in the case of J to which reference has already been made:

"Normally if someone is found in possession of drugs the inference is that they have acquired them and that they have done so by paying for them.  In the drugs trade there is no credit, those involved with drugs want cash.  In those circumstances it seems to us that the inference can be drawn that in the absence of any evidence to the contrary drugs found in the possession of someone shown to be dealing in drugs have been paid for."

15.      Advocate Baker rightly describes the present case as being a sophisticated importation, and refers to the fact that the defendant Day visited the island on his own on a previous occasion.  He submits that all relevant factors point to the drugs having been paid for, and that if they had been obtained on credit that must have been on trust which can only have arisen from previous drug dealing.  On the other hand there is no information from England as to the defendant's lifestyle or means, save to indicate that he and his wife lived in a modest house obtained on mortgage and that he earned an equally modest wage.  His record does not show any pattern of drug trafficking.  It is for the Crown to establish that the defendant paid for, or contributed towards, the purchase of these drugs. 

16.      The learned Jurats who are the fact finding body are not satisfied even to the civil standard of proof that the Crown has done so.  We are conscious of the fact that orders were made in respect of two co-defendants.  Those orders were made by consent and without any argument or examination of the facts in those individual cases.  The facts of the making of those orders have not, and could not, be relied upon as preventing the Court from taking a different course in the defendant's case.  Accordingly the application is refused.

Authorities

Drug Trafficking Offences (Jersey) Law 1998.

Fortson Misuse of Drugs and Drug Trafficking Offences 4^th Edition.

R and J [2001] 1 Criminal Report Sentencing.