Superior Number Sentencing – drugs – importation –
Class A.
[2013]JRC139
Royal Court
(Samedi)
8 July 2013
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Before :
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Sir Michael Birt, Kt., and Jurats Clapham,
Le Cornu, Crill, Liston and Blampied.
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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 10th May, 2013, following guilty pleas to the
following charges:
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4 counts of:
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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).
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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:-
1st to 4th
July, 2011 (Count 3, estimated four wraps, approx. 650mg).
15th July, 2011, (Count
4, four wraps, approx. 650 mg).
3rd September, 2011
(Count 5, three wraps, approx. 400mg).
5th September, 2012,
(Count 6, one wrap, 172mg).
The defendant is a serving prisoner,
having been sentenced on 13th 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.
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Count 3:
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3 years’ imprisonment.
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Count 4:
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3 years’ imprisonment, concurrent.
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Count 5:
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1 years’ imprisonment, consecutive.
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Count 6:
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6 months’ imprisonment, consecutive.
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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.
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Count 3:
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3 years’ imprisonment.
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Count 4:
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3 years’ imprisonment, concurrent.
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Count 5:
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3 years’ imprisonment, concurrent.
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Count 6:
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3 years’ imprisonment, concurrent.
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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 13th
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.