Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class B.

[2012]JRC075

Royal Court

(Samedi)

5 April 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton, Le Cornu, Kerley, Olsen and Milner.

The Attorney General

-v-

Mindaugas Jurginas

Evaldas Norkus

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 13^th January, 2012, following guilty pleas to the following charge:

Mindaugas Jurginas

1 count of:

Being knowingly concerned in the fraudulent evasion of prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1).

Age:  22.

Plea: Guilty.

Details of Offence:

11.2 kilograms of cannabis resin was hidden in a car which the accused drove to Jersey from the UK.  The car had been purchased and insured, and the drugs hidden in it, by another man the day before they set off.  They had persuaded two innocent women to accompany them on the trip. 

Details of Mitigation:

Guilty plea, no related previous convictions; residual youth.  Aside from payment of the cost of the trip their only benefit was the cancellation of a debt of £500 owed by Jurginas to the organiser. 

Previous Convictions:

Four convictions relating to a false identity card, motoring matters and obstruction of a police officer.

Conclusions:

Starting point 6 years' imprisonment.

Count 1:

3 years' imprisonment.

Confiscation Order in the sum of £368.37 sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Counsel for Jurginas submitted that deportation should not be recommended because it would expose the Lithuanian defendants to a review of their "indefinite leave to remain" in the UK, where they lived.  Argument rejected: that was a matter for the Secretary of State in due course and not for the Courts in this jurisdiction. 

Conclusions granted.

Evaldus Norkus

1 count of:

Being knowingly concerned in the fraudulent evasion of prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1).

Age:  23.

Plea: Guilty.

Details of Offence:

See Jurginas above.

Details of Mitigation:

See Jurginas above.

Previous Convictions:

No previous convictions.

Conclusions:

Starting point 6 years' imprisonment.

Count 1:

3 years' imprisonment.

Confiscation Order in the sum of £200 sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

D. J. Hopwood, Esq., Crown Advocate.

Advocate R. A. Leeuwenburg for Jurginas.

Advocate C. M. Fogarty for Norkus.

JUDGMENT

THE commissioner:

1.        The defendants, who are Lithuanian and aged 22 and 23 respectively, stand to be sentenced for the importation of 11.24 kilograms of cannabis resin, which had been concealed in the door of the panel of the car they were driving.  The cannabis resin has a street value of £90,000.  The Crown accept, as do we, that they were acting as mules for financial gain in order to repay Jurginas' debts and that they should be treated as having the same level of involvement.  Jurginas has maintained in a statement that he was fully responsible for this importation and has attempted to exculpate Norkus from his involvement, but, as we know, Norkus has now pleaded guilty to knowingly importing the drugs.  In our view this is to be regarded as a joint venture with the defendants to be treated as having the same level of involvement. 

2.        The Campbell guidelines suggest a starting point of between 6-10 years for cannabis weighing between 10 and 30 kilograms.  The two men had persuaded two girls to travel with them to Jersey to disguise the trip as a short holiday which the Crown regards as an aggravating factor, but even so the Crown seeks a starting point of 6 years which is at the lowest level of the band set out in Campbell, Molloy and MacKenzie [1995] JLR 136.  Counsel for both defendants accept that starting point as being correct, as do we. 

3.        Both defendants have entered guilty pleas and both have the benefit of residual youth.  They have no previous convictions for drug related offences and indeed Norkus has no previous convictions at all.  They are both assessed at a low risk of reoffending. 

4.        Taking into account the mitigation available, the Crown moves for sentences of 3 years' imprisonment for both defendants. 

5.        Looking to the further mitigation put forward by Counsel, in relation to Jurginas we have his letter of remorse and the references which we have read.  We accept the apparent lack of sophistication in this importation and that he is not a drugs user and had no apparent involvement in distribution of those drugs in Jersey.  And we accept he has a good work record. 

6.        In relation to Norkus, he has to his credit, not sought to take advantage of Jurginas' attempt to exculpate him.  We were told his family were anxious to be here but he declined them coming over to the Island because of his feeling of shame for what he has done. 

7.        Having considered all of the mitigation that is before us very carefully, we take the view that the conclusions of the Crown are correct and we accept them.  Each of you are sentenced to 3 years' imprisonment. 

8.        We order the forfeiture and destruction of the drugs. 

9.        Turning to deportation, the Crown seeks orders recommending the deportation of the defendants, which in the case of Jurginas is resisted.  Neither defendant has any connection with the Island, they have no family here and they have never lived here.  They reside in the UK and have family there. 

10.      The test to be applied is in two parts.  The first question which we have to address is this, is the continued presence of the defendants in the Island to the detriment of the Island?  Mr Leeuwenburg submits to us that in the case of Jurginas there is no genuine threat to the public interest.  His client, as he points out, has no previous convictions for drugs related matters and has been assessed at a low risk of reoffending.  He also has a good work record.

11.      The Crown makes the general observation that the Island has no use whatsoever for those who are concerned in the importation of substantial quantities of illicit drugs.  We agree.  As the Court of Appeal said in Campbell drug trafficking is an evil which has the capacity to reek havoc in the lives of individual abusers and their families.  Sadly, lives which are blighted by drug abuse, are usually young lives.  We therefore have concluded that the defendants' continued presence in the Island is detrimental.

12.      The second question we have to address is this, what effect would an order recommending deportation have upon others, not before the Court, and who are innocent persons?  Following Camacho-v-AG [2007] JLR 462 that must also include the effect upon the defendants.  Mr Leeuwenburg submits that deportation would be disproportionate.  Deportation would, he says, expose Jurginas to a review of his leave to stay in the United Kingdom leading to uncertainty for him and his family who live there.  He says that in any event Mr Jurginas has no intention to remain in Jersey at the end of his sentence and is looking for a transfer to a prison in England. 

13.      In our view the human rights of the defendant and his family, upon any review by the Secretary of State of both defendants leave to stay in the United Kingdom, should be left to the Secretary of State and should not be taken into account by this Court.  We are concerned with this jurisdiction and in our view a deportation from Jersey will not have any effect upon either defendant or any innocent person.

14.      We therefore grant the Crown's application to recommend deportation. 

Authorities

Campbell, Molloy and MacKenzie [1995] JLR 136.

Camacho-v-AG [2007] JLR 462.

R-v-Nazari (1980) 3 All ER 880.