Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - possession with intent to supply - possession - Class A.

[2012]JRC056

Royal Court

(Samedi)

15 March 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Le Breton, Le Cornu, Crill and Milner.

The Attorney General

-v-

Muqbal Hussain

Frances Rebecca MacKenzie

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 20th January, 2012, following guilty pleas to the following charges:

Muqbal Hussain

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).
1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  35.

Plea: Guilty.

Details of Offence:

MacKenzie, a native of Jersey, was a heroin addict living in Bethnal Green, London with her three children and knew Hussain, who was then living in Jersey.  

MacKenzie said she was approached by her London supplier who offered to cancel her drugs debt in return for her smuggling heroin into Jersey.  She was supplied with four plastic wraps containing 109.47 grams of heroin.  The same day Hussain, who had travelled to London, asked her to smuggle 28.18g of heroin for £750. 

The following day MacKenzie concealed the drugs internally and flew to Jersey accompanied by her children, and the day after that was arrested after meeting with Hussain.  When searched a wrap containing 2.29 grams of heroin was found concealed in MacKenzie's brassiere (Count 3). 

MacKenzie initially gave a "no comment" interview then later made admissions as to her role in the importation.  Hussain gave a number of different versions of events. 

Details of Mitigation:

Guilty pleas, although not of good character or youth this was his first drugs conviction.

Aggravating factors: Did not cooperate with the police and gave a number of differing accounts of events, most of which placed the full blame on his co-accused.  Assessed as being at moderate risk of re-offending.  Although only being sentenced for the 28.18 grams, the Crown noted that he was aware of the initial importation and was able to add his own drugs to the consignment indicating his awareness of and involvement in the drugs trade. 

Previous Convictions:

11 previous convictions; served terms of imprisonment for crimes of violence; convicted in 2009 for possession of cannabis and also an unlicensed firearm; 3 police cautions for possession of cannabis. 

Conclusions:

The Crown took a starting point of 9 years. 

Count 1:	6 years' imprisonment.
Count 2:	6 years' imprisonment, concurrent.

Total: 6 years' imprisonment. 

Confiscation in the sum of £863.19 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The Court declared that Hussain had benefited from drugs trafficking in the sum of £14,390 and made a confiscation Order in the sum of £863.19, this being the only realisable assets (unopposed).

Starting point 9 years' imprisonment.

Count 1:	5½ years' imprisonment.
Count 2:	5½ years' imprisonment, concurrent.

Total: 5½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

Frances Rebecca MacKenzie

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).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  39.

Plea: Guilty.

Details of Offence:

See Hussain above.

Details of Mitigation:

Guilty pleas; cooperative; treated as being of good character.  No relevant previous convictions; viewed s a mule.  Letter of remorse to the Court; continuing support from her family. 

Aggravating factors: Importation of the lesser amount of Heroin for Hussain was purely for financial gain.  At high risk of reoffending.  Claimed to be in fear of "Matie" although this was incapable of verification. 

Previous Convictions:

2 historic convictions and a police caution, none of which were for a drugs related offence. 

Conclusions:

The Crown took a starting point of 11 years. 

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

Total: 6 years' imprisonment. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Starting point 10 years' imprisonment.

Count 1:	4½ years' imprisonment.
Count 3	6 months' imprisonment, concurrent.

Total: 4½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate C. R. Baglin for Hussain.

Advocate S. A. Pearmain for MacKenzie.

JUDGMENT

THE commissioner:

1.        The defendants stand to be sentenced for the importation of heroin into the Island.  MacKenzie undertook the importation, travelling by plane with her three young children for their annual holiday to Jersey where she has family, many of whom are in Court today.  The total imported was 139.94 grams, of which 2.29 grams was for her personal use, that has a street value of between £458 and £916; 28.18 grams was imported for her co-accused Hussain who had supplied it to her for that purpose at her flat in London, that has a street value of between £5,600 and £11,200; and finally 109.47 grams were imported for her own supplier in London, to whom she says she was in debt, and that has a street value of between £22,000 and £44,000. 

2.        Both defendants were fully aware of the Court's strict approach to drug importation.  Both claim that they were acting under threat, but as the Court of Appeal made clear in Selway-v-AG [2003] JCA 010, such threats carry little weight as they are generally incapable of any kind of verification. 

3.        MacKenzie imported a total of 139.94 grams of heroin which places her in the 10-13 year sentencing bracket as set out in the case of Rimmer, Lusk and Bade-v-AG 2001/148.  She says she was attempting to clear her own drug debts but she carried out the importation of 28 grams for Hussain for reward.  She was to be paid £750 and she knew enough of the methods of importation to provide him with empty Kinder Egg containers and latex gloves to enable him to avoid leaving fingerprints or DNA traces. 

4.        The Crown recommends a starting point of 11 years.  The Defence urge the Court to consider a starting point of 9 years which is 1 year below the lowest point of the guidelines set out in Rimmer.  Rimmer makes it clear that the Court should only consider going outside those guidelines when there are exceptional circumstances and we do not regard MacKenzie's connection with Jersey as an exceptional circumstance.  In the Court's view, looking at the weight of the drugs and MacKenzie's involvement, we regard 10 years as being the correct starting point. 

5.        Hussain was to receive 28.18 grams of heroin which places him in the 8-10 year sentencing bracket.  In the view of the Crown his role was more involved than MacKenzie in that he went to her flat with the drugs, which he had acquired separately, placed them in the Kinder Eggs, flew to Jersey from a different airport and then met her later in Jersey with her payment in cash.  He was therefore putting her at all of the risk.  He is not a Class A drug user and intended to supply the drugs in Jersey.  He was the organiser of this part of the importation. 

6.        The Crown recommends a 9 year starting point for Hussain.  The Defence suggests that 8 years, which is the lower end of the sentencing bracket, is the appropriate starting point but after careful consideration we agree with the Crown's view that his involvement in this importation as an organiser justifies a starting point of 9 years. 

7.        Overall the Crown seeks sentences, allowing for mitigation, of 6 years for each defendant. 

8.        Starting with MacKenzie, she has pleaded guilty; she was cooperative with the police and is to be treated as having a good character.  She has a 10 year history of heroin dependence but has managed to detox whilst in custody where she is now drug free for the first time in many years.  For this reason no treatment order is recommended and we do note the very positive use she is making of her time in prison.  She clearly has now a very positive outlook. 

9.        Imprisonment has impacted and will impact upon her children who, thankfully, are being looked after by her family in Jersey.  As the Court of Appeal commented in Selway "parents of young children are used as couriers but lowering sentences in such cases will merely encourage such persons to be recruited in the future".  Indeed the use of children as a front, exposing them to the potential trauma of seeing their mother arrested, could be regarded as an aggravating factor, as it was in the case of AG-v-Disbury [2004] JRC 117, but on the facts of this case we do not regard the mother as having intended to use her children as a front.

10.      We were very impressed by her letter to us and the very many letters of support that have been written.  Such support speaks volumes for her as a person and as a mother.  We would like to commend her family for the support that they have given and a clearly excellent job they are doing for looking after her children, something which must place a great strain upon them. Overall we think there is very substantial mitigation available to MacKenzie, but we are afraid there can be no question that in line with the policy of the Court, a custodial sentence and indeed a substantial one, must be imposed. 

11.      Turning to Hussain, he has also pleaded guilty but he does not have the benefit of good character.  He has eleven convictions, three for drug possession, although this is the first one for drug trafficking.  In his letter he tells us that he came to Jersey in 2009 to get away from family pressures and other problems and to earn himself an honest living.  The terminal illness of the mother of his two children in London put him in a position of great financial strain, he tells us, forcing him to borrow from loan sharks who were hounding and threatening him for their money back.  He says that in desperation and confusion he resorted to this importation for the first time.  The Probation Department suggest we might review this claim with scepticism.  He claims to have a good work record in Jersey but the Crown say that there is no evidence of any wage paid to him.  We do have a reference from an employer in Leeds where he was brought up but none from Jersey.  The Attorney General's statement shows that there are unexplained credits to his bank account of £14,390 between June 2010 and August 2011 which the Court has earlier declared, without opposition from him, to have come from drug trafficking.  We have, in any event, considered Hussain's letter and the other references and all of the mitigation put forward on his behalf. 

12.      The two defendant's will therefore be sentenced as follows. 

13.      Hussain, in your case, on Count 1 you are sentenced to 5 years and 6 months' imprisonment, on Count 2; 5 years and 6 months' imprisonment.  Those sentences are to run concurrently, making a total of 5 years and 6 months' imprisonment. 

14.      MacKenzie, on Count 1 you are sentenced to 4 years and 6 months' imprisonment, on Count 3: 6 months' imprisonment.  Those sentences are to run concurrently, making a total of 4 years and 6 months' imprisonment. 

15.      And finally we order the forfeiture and destruction of the drugs. 

Authorities

Selway-v-AG [2003] JCA 010.

Rimmer, Lusk and Bade-v-AG 2001/148.

AG-v-Disbury [2004] JRC 117.

AG-v-White [2009] JRC 062.