Smuggler’s ‘low quality’ drug claim fails to cut jail term

Friday 29 January 2021

A jailed postbox drug smuggler, who attempted to get his sentence shortened by claiming that the illegal substances he shipped in were low quality, has had his appeal thrown out.

David Lumb (42), who is currently serving a four-and-a-half-year sentence at HMP La Moye after breaking into a postbox to retrieve cocaine worth up to £1,400 he helped import into Jersey, also unsuccessfully argued that his lawyer gave the wrong information to the Royal Court, and that the Bailiff was conflicted.

He was sentenced in August last year, having organised for a package to be sent on 8 March 2019 to a property across the road from his own address in St. Saviour.

The package containing 13.55g of cocaine was addressed to a previous tenant of the property, 'Mrs X', who had not lived at the address for many years. The woman had no connection to Lumb and he had no reason to use her old address. Likewise, the tenant at the time had no knowledge of the cocaine importation.

The Court heard that Lumb was seen going into the building that day and leaving with a package concealed down the front of his trousers and top.

Pictured: Lumb broke into a postbox to retrieve cocaine worth up to £1,400 he helped import into Jersey in March 2019.

Lumb was arrested later that day and officers found £400 in £20 notes as well as a bag of white powder in his wallet, which was was found to be cocaine with a purity of 28%.

Lumb later admitted that he had intended to sell 5g of the cocaine to friends and acquaintances to cover his own costs, and to use the remaining 8.55g himself. 

After two different legal teams, including Advocate Michael Haines who had represented him on legal aid at the sentencing, indicated that Lumb was unlikely to succeed in appealing his sentence, he decided to represent himself and submitted an application after the 28 days allowed had expired.

He suggested that the cocaine he had imported was only 28% pure, which he said was “very low” compared to the majority of drugs seized in the island.

But Royal Court Commissioner Sir William Bailhache, who heard the application, noted that there was no evidence he knew the level of purity when he imported the drugs. 

Pictured: Two lawyers, including Advocate Michael Haines, advised Lumb his appeal was unlikely to succeed.

Lumb also denied he had intended to sell some of the cocaine, suggesting he had been “pressured” by Advocate Haines into saying 5g would have been for his friends.

He claimed his lawyer told him if he did not accept some of the drugs were for sale, he could face up to eight years in prison. 

Advocate Haines rejected the argument, saying Lumb was “a capable adult, who in my experience would not agree to sign a document if he did not understand what he was signing or disagreed with it."

The lawyer also provided copies of the letters he sent to Lumb in which he set out the risks of a Newton hearing, the likely sentences Lumb would be facing, as well as the different options open to him. 

The Commissioner concluded that Advocate Haines had made no “demonstrable errors” that would have led to a “miscarriage of justice”. He said Lumb’s basis of plea represented a “conscious decision by him to mitigate the risks” he faced. 

“He took that course on an informed basis, having been properly advised,” he added. “That was his choice and it is too late now to depart from it.”

Pictured: The case was heard by Royal Court Commissioner Sir William Bailhache.

Lumb also argued the Bailiff, Timothy Le Cocq, had been swayed against him during his sentencing after having sat through an earlier hearing where additional importation allegations, which were subsequently dropped, had been laid before the Court. 

He said that at a separate hearing Commissioner Bailhache had assured him the Bailiff would not be his sentencing judge to ensure “a fair and unbiased court”, but the Greffier couldn’t find record of this conversation in the hearing notes or on the tapes.

Commissioner Bailhache concluded there was no evidence to support the suggestion that the Bailiff should have recused himself from the sentencing hearing, noting that, as a “professional judge”, he would know to exclude from his consideration other charges that were not before the sentencing court. 

“An informed member of the public could not reasonably reach the view that a conflict had arisen,” the Commissioner concluded. “In any event, unless there were disagreement, the sentence itself was for the Jurats.”

Pictured: Commissioner Bailhache concluded there was no evidence to support the suggestion that the Bailiff should have recused himself from the sentencing hearing.

Commissioner Bailhache rejected the view that Lumb’s sentence was “wrong in principle and manifestly excessive."

He concluded that, while he could have allowed Lumb more time to submit his application in the circumstances, his appeal would ultimately have “no reasonable prospect of success”, and dismissed both applications. 

Commissioner Bailhache acknowledged that Lumb could appeal his decision before the Court of Appeal, but warned him of the risks that might entail.

He noted that in cases where there is “no merit an appeal” the Court might decide that the time spent in custody pending an appeal should not count towards the sentence, effectively increasing the total of time spent in prison.  

He added: “It may be thought that is particularly a risk in circumstances where not only have there apparently been two sets of lawyers advising there are no grounds for appeal but there has also been such a decision by a single judge to the same effect.”