Jersey Unreported Judgments

Drugs - confiscation hearing

[2023]JRC160

Royal Court

(Samedi)

6 September 2023

The Attorney General

-v-

Shaun Halliwell

Ms C. L. G. Carvalho, Crown Advocate

Advocate C. R. Baglin for the Defendant.

EX TEMPORE JUDGMENT

THE DEPUTY BAILIFF:

1.        On 15 May the Defendant was sentenced by the Superior Number following guilty pleas to four charges relating to the importation of drugs, in particular 80.91 grams of cocaine.  He was sentenced to 8 years and 3 months in relation to that matter and concurrent sentences in relation to other smaller quantities of drugs which he imported at the same time (AG v Halliwell [2023] JRC 076).  The question of confiscation was postponed to a date to be fixed, and that matter is listed before us to determine today.  

2.        We have before us an Attorney General's statement made pursuant to the provisions of the Proceeds of Crime (Jersey) Law 1999 which was signed by the Attorney General on 5 May 2023 but we understand was in the usual way drafted by a police officer and thereafter signed by the Attorney.

3.        The Defendant has a significant criminal record and we note from him his antecedents that he was born in June 1983 and is accordingly now 40 years old and has 54 convictions for 143 offences, particularly for dishonesty (over 70 offences) and 7 offences in relation to drugs, usually  possession of cannabis or heroin.  His antecedents are characteristic of someone who has been involved with controlled drugs for a significant period.  That is reenforced by the terms of the Attorney General's statement which says at para 3.5 that during his financial interview the Defendant said he had been a drug addict for 10 years.

4.        Key provisions for the purpose of assessing the proceeds of criminal conduct, include the statutory assumptions and those assumptions include that any property appearing to the Court to be held by the Defendant at any time since the date of his conviction or appearing to have been transferred to him at any time since the beginning of the relevant period (which is 6 years ending when the proceedings were instituted against the Defendant) was inter alia received by the Defendant as a result or in connection with the commission of the offences for which the Defendant had just been convicted and that any of his expenditure since the beginning of that 6 year period was met out of payments received by the Defendant as a result or in connection with the commission of those offences.  The burden of proof is on the Defendant to the civil standard to rebut these assumptions.

5.        Much to our surprise the Attorney General's statement says that the property transferred to the Defendant at any time during the last 6 years in this case was limited to the value of a small amount of drugs found on him on arrest which were considered to be for his personal use.  Those drugs having a street value of £130.  There was no attempt in the statement to explore the effect of the assumptions or to require the Defendant to explain why they should not apply or why the Crown elected to put to one side the statutory provisions to which we have just referred.  There was clearly an evidential basis for considering such matters, as the statement itself shows that between January 2022 to March 2023 the Defendant's current account and top-up debit card account received credits in the sum of between £23,000 and £24,000 whereas his benefit payments for roughly the same period totalled approximately £10,000.  He appears to have had no other legitimate source of income during that period so accordingly for only 1 year of the 6 year period there is an unexplained income on the face of it of approximately £14,000 that the Defendant was never asked to account for. 

6.        It is of concern to the Court, in the context of this case where the amount of drugs imported was substantial, that the statutory provisions were not complied with and that failure to do so was not explained at any point in the Attorney General's statement.  This in our view should not happen again and the provisions of the statue should either be complied with or there should be an explanation as to why it is that it was not thought to be appropriate to consider the effect of the assumptions. 

7.        The consequence in this case is that the Crown assesses the Defendant's benefit from his criminal conduct as being £130 which is in fact less than the amount that might be realised from him in terms of the contents of his bank accounts, namely £158. 

8.        We would have adjourned this matter for the purpose of a further statement being provided by the Crown but we have elected not to do so as it would be unfair on the Defendant who believed that the matter would be determined today and bearing in mind the amounts to which we have just referred it might be argued that to adjourn this matter for further evidence would be disproportionate.  However, notwithstanding those consideration, the Court would have been entirely justified in the exercise of its discretion in adjourning the matter had it been appropriate to do so.  Nonetheless we hope that the concerns we have expressed will be taken into account by the Crown in future when considering the approach to be taken for the purpose of similar applications in other cases. 

9.        Accordingly, we make the Confiscation Orders contained in the draft Confiscation Certificate at page N7 of the CaseLines bundle.  We assess the value of the Defendant's benefit in accordance with Article 3 of the 1999 Law as being £130 and certify under Article 4 of the Law the amount to be recovered from him is that sum, that he should pay it within 14 days and serve 7 days imprisonment in default.

10.      Those are the orders we make today.

Authorities

AG v Halliwell [2023] JRC 076. 

Proceeds of Crime (Jersey) Law 1999