Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class A.

[2013]JRC139

Royal Court

(Samedi)

8 July 2013

Before     :

Sir Michael Birt, Kt., and Jurats Clapham, Le Cornu, Crill, Liston and Blampied.

The Attorney General

-v-

Mohammed Kamruz Zaman

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10^th May, 2013, following guilty pleas to the following charges:

4 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 (Counts 3, 4, 5 and 6).

Age:  34.

Plea: Guilty.

Details of Offence:

The defendant was charged with six counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely diamorphine, heroin, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  He pleaded guilty to counts 3-6 which were as follows:-

1^st to 4^th July, 2011 (Count 3, estimated four wraps, approx. 650mg).

15^th July, 2011, (Count 4, four wraps, approx. 650 mg).

3^rd September, 2011 (Count 5, three wraps, approx. 400mg).

5^th September, 2012, (Count 6, one wrap, 172mg).

The defendant is a serving prisoner, having been sentenced on 13^th April, 2011 to 6½ years' imprisonment for importing 54.4 grams of heroin into Jersey from the UK, this heroin having been concealed internally. 

The total quantity of heroin recovered in relation to the current counts was just over 1.2 grams with a street value of about £1,200.  No heroin was recovered in relation to Count 3, as they escaped detection. 

The Crown estimated however that the amount imported in Count 3 was approximately 650mg, bringing the total amount imported to about 1.85 grams, worth approximately £1,850 at street value.

Details of Mitigation:

Guilty pleas.  The amount involved was small and there was no commercial element to the offending.

Previous Convictions:

3 offences against the person (1998-2002), 6 theft and kindred offences (1998-2002), 1 Public disorder offence (2009), 6 offences relating to Police/Courts/Prisons (1998-2009), 5 drug offences (1998-2011). 

Conclusions:

Rimmer guidelines reveal a starting point of 7-9 years for quantities between 1 and 20 grams.  The defendant was the principal organiser in these importations and so a starting point of 8 years was taken.  However the defendant's apparent contempt for the law aggravates the matter, and in the Crown's view should result in an increase from 8 to 9 years.  The guilty pleas merit some credit though given the strength of the evidence against the defendant he had little realistic option but to plead guilty so the Crown submitted that it would be over generous to apply the full 1/3 reduction.  However, other mitigating factors included that the amount was small and that there was no commercial element to the offending. 

The Crown concluded that the appropriate total sentence for the total amount would be one of 6 years' imprisonment (consecutive).  However this would result in a total sentence of 12½ years taken in aggregate with the sentence he was currently serving for the offences in 2010.  The Crown considered this to be excessive.  Thus to reflect the totality principle the Crown proposed a 4½ year consecutive sentence, which would result in a total of 11 years when added to his current sentence. 

Starting point 9 years' imprisonment.

Count 3:	3 years' imprisonment.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	1 years' imprisonment, consecutive.
Count 6:	6 months' imprisonment, consecutive.

Total: 4½ years' imprisonment to run consecutively from the end of current sentence. 

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

The Court concluded that when the defendant was initially sentenced in 2011 to 6½ years for importing heroin, the Court was influenced by his letter stating his resolution and desire to end his drug addiction.  It is evident that the defendant has acted contrary to this resolution, when he subsequently imported heroin into the prison. 

The Crown estimates 1.85 grams in total was imported.  The exact amount is not vital but what is significant is that on four separate occasions heroin was imported into the prison, even after being interviewed in relation to the first few instances.  Anyone who imports or possesses drugs whilst in prison must expect a meaningful serious sentence. 

Advocate Drummond submitted that Rimmer does not apply to personal use cases.  This is contrary to the Court of Appeal case of Shahnowaz-v-AG.  The fact that the drugs may only have been for personal use is purely a mitigating factor, and there the guidelines for starting points in Rimmer apply.  Advocate Drummond also submitted that because each separate incident involved less than 1 gram the case falls outside of the Rimmer guidelines; this was not accepted by the Court.  The Court regards the totality of the offending and therefore the Rimmer guidelines do apply. 

The Court considered that a starting point of 9 years' imprisonment was excessive and so reduced it to 7 years.  The guilty plea is a mitigating factor and so one third of the sentence shall be discounted. 

The total sentence considered most appropriate is 3 years, concurrent on all counts, and consecutive to the existing sentence. 

Starting point 7 years' imprisonment.

Count 3:	3 years' imprisonment.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	3 years' imprisonment, concurrent.

Total: 3 years' imprisonment, to run consecutively from the end of current sentence.

Forfeiture and destruction of the drugs ordered.

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

Advocate E. B. Drummond for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 13^th April, 2011, you were sentenced to 6½ years' imprisonment for importing some 54 grams of heroin.  The Crown had moved, on that occasion, for a sentence of 7 years and it is clear that the Court was influenced by the fact that you had written a letter stating that you had resolved to keep clear of drugs and that you were succeeding in doing that in prison, and they accordingly reduced the Crown's conclusions. 

2.        Contrary to those protestations on your part, it now transpires that on three occasions between July and September 2011 and on one occasion in September 2012, whilst serving your sentence, you arranged with your brother for the importation of personal amounts of heroin in packaging to be sent to you at the prison.  Three consignments were discovered and the total amount of heroin involved there was 1.22 grams.  The fourth package was not intercepted.  The Crown have argued that it was likely to have contained some 650 milligrams, so that the total involved would be some 1.85 grams.  We think that is probably right but the exact amount does not matter; whether the total involved was 1.4 grams or 1.85 grams is not material for sentencing purposes; what is significant is that on four separate occasions you were involved in the importation of these personal amounts of heroin to the prison and that two of these took place after you had been interviewed in relation to the first two.  We repeat what the Court has said on previous occasions, namely that arranging the supply of drugs to the prison is particularly serious and will invariably attract a meaningful consecutive sentence for the prisoner involved. 

3.        Advocate Drummond argued that the leading case of Rimmer-v-AG [2001] JLR 373 should not apply in this case because this was not a commercial importation.  We have to say that that submission is completely contrary to the leading case of Shahnowaz-v-AG [2007] JLR 221 where the Court of Appeal resolved a difference of opinion and held that the fact that the drugs are for personal use is a matter for mitigation, not for fixing the starting point and that the Rimmer guidelines do apply.  He also submitted that Rimmer should not apply because each individual importation was below the 1 gram minimum figure in Rimmer.  We cannot accept that argument either.  The Court must,inevitably, have regard to the totality of the offending.  What was involved here was four importations leading to a total of something in the region of 1.85 grams and that is the offending with which we have to deal and therefore the starting point should be fixed by reference to that aggregate offending. 

4.        The Crown suggested a starting point of 9 years.  We have to say that we consider that to be excessive.  In our judgment the correct starting point here, having regard to the amount involved, is 7 years.  Furthermore, despite looking at the matter as one of totality in fixing the starting point, the Crown has then moved for consecutive sentences.  We think it is more consistent with the normal sentencing policy of this Court in drug offences to pass concurrent sentences, having regard to the total amount involved, and the general nature of the offending. 

5.        In mitigation Advocate Drummond put forward your guilty plea, and we agree with him that the full one-third discount should be given.  The other main mitigating factor is the fact that these drugs were for personal use and we do take that into account in effecting a further reduction.  We have read your letter and we hope that you mean what you say this time, unlike last time.  We think that until you can conquer your heroin addiction, the future is bleak.  If you can conquer it then we hope very much that, when you are released, you will be able to keep out of trouble and change your life around.  We have had regard to the matters generally mentioned in the background report in mitigation as well. 

6.        The particular gravity of this offence lies in the fact that you imported heroin into the prison.  For that reason one Jurat would have imposed a sentence consistent with the Crown's conclusions of 4½ years.  But the remaining Jurats are of the view that one must keep the sentence for this offending in proportion, having regard to the amount involved and the fact that it was for personal use.  They consider that the need to deter prisoners from trying to obtain drugs in prison would be met by a sentence of 3 years, consecutive to the existing sentence. 

7.        The sentence of the Court therefore is 3 years' imprisonment, concurrent on each of Counts 3-6, but that sentence is to be consecutive to the sentence you are already serving, in other words an additional 3 years beyond that which you are already serving. 

8.        The Court orders the forfeiture and destruction of the drugs. 

Authorities

Rimmer-v-AG [2001] JLR 373.

Shahnowaz-v-AG [2007] JLR 221.

AG-v-Zaman [2011] JRC 080.

AG-v-Barr [2003] JLR N 12.

AG-v-Miah 2001/11.

AG-v-Hume and Others [2006] JRC 076.

Harris-v-AG [2001] JLR 362.