Benjamin Robert Hagin v HM Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Storey JA
• Judgment Date: 30 November 2020
• Neutral Citation: [2020] JCA 247
• Date: 30 November 2020

[2020] JCA 247

COURT OF APPEAL

Before:

James McNeill, Q.C., President;

Sir William Bailhache, Q.C., and Jeremy Storey, Q.C.

Benjamin Robert Hagin

and

Her Majesty's Attorney General

Advocate I. C. Jones for the Appellant

C. R. Baglin, Esq., Crown Advocate

Authorities

Proceeds of Crime (Jersey) Law 1999

Misuse of Drugs (Jersey) Law 1978

AG v Hagin [2020] JRC 176

AG v Goodwin [2016] JRC 165

AG v Michel [2007] JRC 120

AG v Bhojwani [2010] JRC 116

Campbell v AG [1995] JLR 136

AG v Gilbraith and Rawlinson [2017] JRC 155

Harrison v AG [2004] JLR 111

AG v Price [2019] JRC 211

AG v Rae and Spinola [2017] JRC 080

Rae v AG [2017] JCA 197

McDonough v AG [1994] JLR N7a

Court of Appeal (Jersey) Law 1961

Drugs — application for leave to appeal against sentence.

Application for leave to appeal by Benjamin Robert Hagin against the sentence imposed by the Superior Number of the Royal Court on 4 ^th August 2020 on:

6 counts of: Removing criminal property from Jersey, contrary to Article 31(1)(d) of the Proceeds of Crime (Jersey) Law 1999 (Counts 1 to 4, 6 and 11).

5 counts of: Offering to supply a controlled drug to another, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Counts 5, 7, 8, 9 and 10).

1 count of Possession of criminal property, contrary to Article 30(1)(c) of the Proceeds of Crime (Jersey) Law 1999 (Count 12).

1 count of: Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 13).

Storey JA

Introduction

1 This is the judgment of the Court.

2 The Appellant applies for leave to appeal against the sentence of four years' imprisonment imposed by the Royal Court on 4 August 2020. The reasons for the sentence were set out in a judgment of 3 September 2020. The sentence accorded with the Conclusions of the prosecution.

3 The Appellant was aged 24 at the time of the offences and is now 26. He had 21 previous convictions including possession of a Class B drug (cannabis) in 2010 and being concerned in the importation of a Class B drug (cannabis) in 2013 for which he received a probation order of six months.

The Appellant's criminal conduct

4 The brief circumstances of the Appellant's 13 offences are as follows. On 7 April 2019 States of Jersey police officers searched the Appellant's flat and seized cannabis (55g), cannabis resin (3.8g), £2,690 in cash, £10,000 in a package bearing a Liverpool address, drug grinders, scales, post office receipts, lists and a notebook containing names and figures. It became clear that between December 2018 and April 2019 the Appellant had sent £53,790 cash in six separate packages to the UK. The Appellant's mobile phone records evidenced five offers to supply cannabis during March and April 2019.

5 The seven money laundering offences involved the Appellant, over a four month period, collecting cash (on instructions from UK suppliers) from Jersey drug users/buyers or third parties, minding it, wrapping it and passing it on locally or posting it to those UK suppliers. The Appellant had assumed the money related to the sale of cannabis. His 2 ¹/₂% fee was a reduction in debts the Appellant had accumulated to sustain his own drug habit.

6 The judgment of the Royal Court ( AG v Hagin [2020] JRC 176) summarised the matter thus:

“10. In essence from all of the material obtained, the Defendant's answers in interview and various expert reports relating to drugs matters that we have seen, it is clear that there was a significant money laundering operation dealing with the proceeds of the sale of drugs. From the Defendant's own account he would collect money relating to drugs deals from individuals identified to him and when it had been accumulated to a sufficient sum he would send it in accordance with instructions through the post. The information obtained disclosed a number of these actions and these are reflected by the counts in the Indictment. Count 12 relates to a sum in cash found at the Defendant's premises which was in the process of being sent but had not yet been posted .

11. In addition it was clear that the Defendant was offering cannabis for sale. He did not provide the PIN number for the phone on the grounds that there were personal messages between himself and his girlfriend but it is clear from an examination of the phone that the Defendant was offering to supply cannabis to a number of individuals for payment. As far as the phone discloses there were five individuals to whom the Defendant offered drugs. In interview he answered “no comment” to questions put to him in this area as well as other entries on his phone .

12. The total amount of cannabis resin seized in the Defendant's flat was 3.819 grams .

13. It could not be said that the Defendant was fully cooperative with the Police. He gave some information relating to his habit of bulk buying cannabis for his own use and he did sign a bank authority to allow the Police to access his bank accounts. As explained above, however, he refused to give his PIN number for his mobile phone and gave “no comment” answers to questions relating to the supply of cannabis or the named individuals to whom monies were sent .

14. During one of his interviews he indicated that he had a personal drugs debt of approximately £5,500 from buying cannabis but he had managed to reduce that debt to £3,000 by collecting and sending money on behalf of others. He indicated that for every £1,000 he collected he would get £25 removed from his drug debt and for every package he sent to England he would get a further reduction. He estimated that he had posted approximately £10,000 to the United Kingdom on five separate occasions.”

7 The Appellant had pleaded guilty to all counts on the indictment on 15 May 2020.

The sentencing hearing

8 Prior to the hearing the Crown served its Summary of Facts and Conclusions on the defence in the usual way.

9 Advocate Baglin invited the Royal Court to consider AG v Goodwin [2016] JRC 165 at paragraphs 4 – 7 when sentencing for money laundering offences:

“(i) There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence when considering the appropriate sentence for the laundering offence .

(ii) The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct .

(iii) Regard should be had to the extent of the launderer's knowledge of the antecedent offence .

(iv) The amount of money is a relevant factor” ,

(v) “Regard should be had to the … duration, sophistication and scale of money laundering” and

(vi) “The interests of Jersey as a finance centre justified an element of deterrence in the sentence” .

Sentencing policy had moved on from that in AG v Michel [2007] JRC 120 and AG v Bhojwani [2010] JRC 116 because “the evil of money laundering generally receives an increasing focus in the international community and … it is right that this Court should reflect that in the sentences which it passes” (18).

10 The Appellant's predicate offence was drug trafficking, probably of cannabis. In Campbell v AG [1995] JLR 136 this Court set out the appropriate starting point for importing or offering to supply 1 – 10kgs of cannabis as 2 – 6 years, which would equate to 42 months' imprisonment for 4.4kgs, the approximate amount of cannabis which could be bought for £66,480, the cumulative amount of money which the Appellant had sent or was about to send to the United Kingdom.

11 In paragraphs 3 and 16 – 18 of the Crown's Conclusions it was contended that the Appellant “was integral to the operation”, was “trusted”, and “undertook a vital role in an organised crime group that was dealing large amounts of drugs in the Island”. The Appellant's role was “pivotal”.

12 Advocate Baglin also invited the Royal Court to consider AG v Gilbraith and Rawlinson [2017] JRC 155 when sentencing for the offences of offering to supply cannabis.

13 The Crown moved for concurrent sentences for the money laundering offences and concurrent sentences for the supply offences, but the latter should be consecutive to the former. The Crown's starting point was five years and it contended for a sentence of three years' imprisonment for money laundering and twelve months consecutive for supply (and no separate penalty for possession of 3.8g of cannabis resin).

14 Advocate Dix appeared for the Appellant and put forward mitigation of guilty pleas, alleged cooperation during interview, a letter of remorse from the Appellant and positive references from family members and others. Advocate Dix accepted that the fact that the Appellant...