[2003]JRC075

ROYAL COURT

(Samedi Division)

 

30^th April 2003

 

 

The Attorney General

-v-

Paul Anthony Le Pavoux;

Wolfgang Baumgärtner.

 

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number, Paul Anthony Le Pavoux on 28th January, 2003, and Wolfgang Baumgärtner on 31^st January 2003, following guilty pleas to the following charges:

 

Paul Anthony Le Pavoux

1^st Indictment.

 

1 count 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 1: diamorphine.
2 counts of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 2: cannabis. Count 3: diamorphine.

 

[On 3^rd October 2002, the defendant, before the Inferior Number, pleaded not guilty to count 1 and guilty to counts 2 and 3; on 28^th January 2003, the defendant was convicted by the Inferior Number of the Royal Court (en police correctionnelle) on count 1 and was remanded in custody to the Superior Number for sentencing on counts 1, 2 and 3.]

 

 

 

 

2^nd Indictment.

 

Count 1:

possession of a controlled drug, contrary Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 1: cannabis.

[On 7^th March 2003, the defendant, before the Inferior Number, pleaded guilty and was remanded in custody to the Superior Number for sentencing.]

 

Age:     31

 

Details of Offence:

Counts 1-4.

Baumgartner imported just under 237 grams of heroin, estimated wholesale value £35,549.10, most of it secreted internally.  Acquainted with Le Pavoux, whom he met when they both lived in Bangkok.  Le Pavoux suggested importing heroin to Jersey to Baumgartner who had financial problems.  Both were heroin addicts.  Baumgartner did a “dummy run” to Jersey in Easter 2002 to test the security arrangements.  On July 2002 he carried out the actual importation.  Baumgartner bought the heroin (over 8 oz) in Switzerland for 8,000 Swiss Francs (approximately £3,560) and thought he would be able to sell it in Jersey for about £10,000.  In fact the street value could have been in excess of £100,000.  The Crown accepted the value of the drugs to be that which he paid for them, i.e. £3,560.  Having passed unchecked through the Customs Hall, Baumgartner went to the Uplands Hotel.  He excreted the heroin.  Baumgartner and Le Pavoux each had the other’s mobile telephone number.  Baumgartner had difficulty in contacting Le Pavoux on the telephone and started telephoning other possible purchasers of the heroin.  Eventually he arranged to meet Le Pavoux at the Beaufort Hotel that evening.  As Baumgartner was leaving the Uplands Hotel to meet Le Pavoux, he was arrested and found to have 3.2 grams of heroin in his pocket (street value £987 and £1,480 (Count 6)).  Baumgartner told police the heroin was a sample of the importation he was going to hand over to Le Pavoux.  Meanwhile le Pavoux was driven to the Beaufort hotel by Philip McConnachie who was later found by police officers waiting in the car park in Green Street for Le Pavoux.  Le Pavoux came to meet Baumgartner carrying a set of electronic scales, a knife, a box of needles and a straw, all indicative of the intended drug trafficking.  Le Pavoux was arrested.  Le Pavoux lied at interview, saying he had not telephoned Baumgartner, denied being involved in Baumgartner’s Easter visit to the Island and said the purpose of his meeting was to stay the night at Baumgartner’s hotel.  At trial, Le Pavoux claimed he had gone there to purchase a personal amount of heroin.  Baumgartner gave evidence for the Crown, materially assisting in the conviction of Le Pavoux.

Count 2.

During a search at Police headquarters, Le Pavoux had a small lump of cannabis on his person weighing 1.08grams estimated as being worth £6. 

Count 3.

A search of Le Pavoux’s home revealed 135 milligrams of heroin (street vale £80).

Count 5 – withdrawn.

Count 6.

Heroin in Baumgartner’s pocket at the time of his arrest weighed 3.9 grams (street value between £987 and £1,480).

 

Second indictment.

On 22^nd January 2003, five days before his Royal court Assize trial in respect of which Le Pavoux  was on bail, he was arrested and found to be carrying two pieces of cannabis weighing approximately 1.7 grams in his pocket.

 

Details of Mitigation:

Difficult to identify any because : pleaded not guilty; lied at interview; committed second offence whilst on Royal Court bail; previous drug convictions.

 

Previous Convictions:

1995 possession of utensils/needles, syringe; 1999 possession of heroin.

 

Conclusions:

 

1^st Indictment.

 

Count 1:	11 years’ imprisonment.
Count 2:	£100 fine or 1 week’s imprisonment in default of payment.
Count 3:	3 months’ imprisonment, concurrent.

 

2nd Indictment

Count 1:

£100 fine or 1 week’s imprisonment in default of payment, consecutive to sentences passed on 1st Indictment.

Confiscation orders: £22,577.27.  Le Pavoux’s counsel argued he was not guilty of drug trafficking and would appeal.  The Superior Number therefore heard details of the Attorney General’s statement but found sufficient evidence to apply the assumptions and accordingly made the confiscation order.

 

Sentence and Observations of Court:

Conclusions granted.

 

Wolfgang Baumgärtner

 

1^st Indictment

1 count 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 4: diamorphine.
1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978: Count 6: diamorphine.

[On 4^th October 2002, the Crown withdrew Count 5 and the defendant pleaded guilty to Counts 4 and 6, and on 31^st January 2003 was remanded to the Superior Number for sentencing on 3^rd April 2003.]

 

Age:     35.

 

Plea:   

 

Details of Offence:

(See Le Pavoux above.)

 

Details of Mitigation:

No previous convictions at all; pleaded guilty at first opportunity; co-operative at interview; gave evidence against his co-accused; gave material assistance to police identifying drug traffickers and beyond the realms of his interview, and asked his counsel to acknowledge this in open Court.

 

Previous Convictions:

None.

 

Conclusions:

 

1^st Indictment.

Count 4:	6 years’ imprisonment.
Count 6:	18 months’ imprisonment, concurrent.

Deportation recommended.

 

Sentence and Observations of Court:

 

1^st Indictment.

Count 4:	3 years’ imprisonment.
Count 6:	18 months’ imprisonment, concurrent.

 

Deportation recommended.

 

Mrs S. Sharpe, Crown Advocate.

Advocate M.L. Preston for A.P. Le Pavoux.

Advocate R.G.S. Fielding for W. Baumgärtner.

 

 

 

JUDGMENT

 

 

THE commissioner:

1.        On the 5^th July, 2002, Baumgärtner travelled from Zurich to Jersey.  He had a return ticket dated 11^th July.  He was carrying 237 grams of heroin, most of it internally.  He was not stopped at customs.  Apparently the street value was some £120,000.  He checked in at the Uplands Hotel and then walked into town to buy laxatives to help him expel the heroin.  He had Le Pavoux’s mobile telephone number and he had tried to contact Le Pavoux and arranged a meeting with him at the Beaufort Hotel.  He was arrested at the Uplands Hotel.  He had on his person a wrap of heroin weighing 3.2 grams with a street value of between £987 and £1,480.  Baumgärtner described this as a sample. 

2.        Le Pavoux was driven to the Beaufort Hotel by Philip McConnachie, who was later found waiting in a car in Green Street.  Le Pavoux had with him a set of electronic scales, a knife, a box of needles and a straw.  Apparently Le Pavoux and Baumgärtner knew one another from Bangkok.  Certainly Baumgärtner came to Jersey at Easter, he said to make a reconnaissance journey.  Le Pavoux said that it was to look at a new shop that he had opened in the Parade. 

3.        At interview Le Pavoux said he had come to the Beaufort Hotel to spend the night with Baumgärtner.  That, in the context of the contents found on both accused, is not acceptable to the Crown.  There were telephone calls made between the two accused, proven from records.  Le Pavoux said at interview that he had not spoken with Baumgärtner.   Baumgärtner, who gave evidence against Le Pavoux at trial, said that he bought the heroin in Switzerland and that he hoped to make a profit of £10,000 by selling it in Jersey.   The prosecution case is that Le Pavoux was Baumgärtner’s link with Jersey and was therefore knowingly concerned in the importation.   

4.        A small lump of cannabis with a street value of some £6 was found in Le Pavoux’s pocket when he was arrested.  A search of his home revealed a plastic bag containing 135 milligrams of heroin, having 54% by weight of diamorphine.  It had a local street value of some £80.  The heroin found on Baumgärtner at the Beaufort Hotel weighed 3.29 grams with a street value of between £987 and £1,480.  While he was on bail, a search of Le Pavoux’s home under a search warrant on 22^nd January 2003 revealed two pieces of cannabis weighing 1.76 grams in his jeans pocket.

5.        The summary of facts, together with a financial statement prepared by the Attorney General leaves us in no doubt that Le Pavoux was dealing in drugs.  So we will deal with Le Pavoux first.  He has a record but not much of a record which is surprising for an admitted heroin abuser.  Clearly it pales into insignificance when set against the charges he now faces.  Our problem with Le Pavoux is that he maintains his innocence.  But he has been found guilty after a trial and we find the arguments of the Crown, compounding his explanations, compelling. 

6.        In Rimmer & Others –v- A.G [2001] JLR 373, the Court of Appeal set out starting points which put this importation of 237 grams (in the range for 100-250 grams) at 10 to 13 years.  In that case the Court said this:

“We emphasise that these bands represent only guidelines and are not be treated as if embodied in statute.  The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of drugs and their rôle and involvement as principle factors together with other lesser but relevant factors as indicated.  The margin of these bands are also not to be treated as set in stone.”

7.        This Court has no problem in accepting a starting point on count one for Le Pavoux of 12 years.  We have to say that in regard to Le Pavoux we have carefully read the two background reports but it was very difficult to find any mitigation.  He pleaded not guilty; he clearly lied at interview and his second indictment offence was committed whilst on Royal Court bail.  That is not, in our view, of material importance when one considers the effect that such a large importation of heroin would have had on a small community which is daily dealing with the problems which this pernicious drug can bring.  On count one, Le Pavoux, we sentence you to 11 years’ imprisonment; on count two to £100 fine or 1 week’s imprisonment in default of payment; on count 3 to three months’ imprisonment, concurrent; and £100 on the sole indictment.  We order the forfeiture and destruction of the drugs.

8.        For Baumgärtner we are going to start at 12 years.  But there is, in our judgment, infinitely more to be said in mitigation.  Of course he is responsible and must remain responsible for this greed- motivated importation, however, as Advocate Fielding has said, he has no criminal record and his guilty plea must lead to a one third discount.  But he has not only given evidence in Court against his co-accused; he has also given materially useful information to the Police and wishes, again most unusually in our knowledge, that that fact to be made public.  He will spend his time in the Vulnerable Persons Unit at La Moye Prison.  But, because the drug trafficking trade rests upon a basis of fear and intimidation it is in the public interest that those who are brought to justice give such information to the police and we shall continue to encourage such actions by giving a very substantial discount.  So, Baumgärtner we are going to sentence you to three years’ imprisonment on count 4, which is less than the Crown has asked for. On count 6 we sentence you to eighteen months’ imprisonment and that is to run concurrently. We again order the forfeiture and destruction of the drugs. 

9.        Before you leave the Court we have to deal with the deportation.  We have given this much thought and we are very well aware of the remarks that Mr Fielding has made but in the circumstances we are going to exercise such powers as this Court has under section 3(6) of the Immigration Act 1971 as extended to Jersey and we are going to make a recommendation to the Lieutenant Governor that at the end of your sentence you be deported.

 

 

 

Authorities

Rimmer & Others –v- A.G.[2001] JLR 373.

AG –v- Kenward (6^th March 2000) Jersey Unreported; [2000/42].

AG –v- Wooton [2003]JRC034.

AG –v- Marella and ors. (2^nd May 1996) Jersey Unreported.

AG –v- Jones and Rayner. (6^th June 1996) Jersey Unreported.