ROYAL COURT
(Samedi Division)
9 June 1999
Before: F C Hamon Esq Deputy Bailiff and
Jurats, Myles, Le Ruez, Rumfitt Potter de Veulle
Quérée, Le Brocq, Tibbo, Le Breton,
Georgelin, and Allo
AG -v- Mark André Such
Sentencing by the Superior Number of the Royal Court, to whom the accused was remanded by the Inferior Number on 14 May 1999, following a guilty plea to:
1 count of: possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978: MDMA.
Age: 23
Details of Offence: Accused searched and found to be holding 66 tablets of Ecstasy.
Details of Mitigation: Such claimed that he owed £300.00 to his regular supplier of Heroin, to which he was addicted. In return for running an errand for the delivery of Ecstasy, he expected to be released from £100.00 of his debt. There was an implied threat from the supplier against Such if he did not pay the debt. Background reports suggested a probation order with Naltrexone treatment and mandatory drugs counselling.
Previous Convictions: Several previous convictions for possession of Class B drugs. Also four previous convictions for possession of both Class B and Class A drugs with intent to supply.
Conclusions: 5 years imprisonment.
Sentence & Observations of Court: 4 years imprisonment.
J Bailhache Esq Crown Advocate
Advocate A Messervy for the accused
JUDGMENT
THE DEPUTY BAILIFF: Such was detained at 11.20pm on the evening of Saturday 23rd January, 1999, standing at the junction of Kensington Place and Kensington Street. During a search of his person at Police Headquarters, a clear plastic pouch was found tied to the drawstring of his tracksuit trousers. That pouch contained 66 ecstasy tablets, which contained an average of 97mg of MDMA per tablet. That would have a street value of £1,320.00, and is clearly a commercial amount of the drug.
A search of Such's flat in Kensington Place revealed a paper wrap which contained a white powder, later identified as citric acid, and there was also found a piece of kling film.
Such admits to being a heroin addict. He says that he takes, usually by injection, about 1/8th gram of heroin per day. He also admits to using cannabis. He was earning about £225.00 per week as a carpenter and said that he spent about £150.00 a week on heroin.
He was under the control of a drug dealer to whom he admitted owing some £300.00. £112.00 in cash was found on him when he was arrested, which he claimed to be the remainder of his wages. His story was that his controller was to get him to deliver these tablets to "The Venue" night club, in order to obtain a small reduction on his drug debt. The threat of violence was always in the background.
We agree with the learned Crown Advocate that 66 tablets is an odd number to be delivered, but nevertheless, as I have said, with a street value of £20.00 per tablet we are dealing with a commercial amount.
Such is 23 years old; he has four counts on his record of possession with intent to supply: he is no stranger to prison, where he says that he can be supplied with heroin.
In the recent case of Whyte -v- The Attorney General (17th March, 1999) Jersey Unreported CofA, the Court of Appeal concluded it's judgement with these words:
"Before completing this judgement, the Court would wish to add that in the course of his submissions Mr Chapman expressed concern that the applicant felt aggrieved, and that he felt from what had been said by the Royal Court that no regard had been taken of the recommendations of Mr Saunders that treatment was available that could assist the applicant to break his drug addiction. This Court does not in any way wish to diminish the importance of any such treatment, and we hope that such treatment can be made available to the applicant during the course of his sentence, and that he will be able to take advantage of it".
We were then more than surprised to read the following statement in a report written by Mr Bill Saunders the director of the Alcohol and Drugs Service, which was before us today:
"Indeed, because of the ineffectiveness of such prison intervention, the Alcohol and Drugs Service has this year ceased to offer prison counselling, in-prison counselling, preferring to expend it's limited resources on the Court mandated treatment orders offered in the Magistrates Court. Such orders are more effective."
We have no doubt that the Court of Appeal would share the surprise, and perhaps dismay that 11 Jurats have expressed in Court today.
We have a choice, and we are very grateful to Mr Messervy for showing us the stark option of imprisonment contrasted with the equally stark alternative of probation coupled with a course of treatment advocated by the Probation Officer, and by Mr Saunders. We have to recall that although this man is only 23, he has failed this Court before on probation, he has been convicted of possession with intent to supply on four occasions, he breached his probation order made on the 20th December, 1996 on the 21st November, 1997, and because of that he was sentenced to a total of 9 months imprisonment, but he was again in Court shortly after his release on a charge of grave and criminal assault, when, on the 5th November, 1998, he was sentenced to 2 months and 2 weeks imprisonment.
Crown Advocate Bailhache looks at a starting point of 7 years, in accordance with the guidelines in Campbell, Molloy, and McKenzie, (1995) JLR136 CofA. We have to say that Such's plea of guilty is of some value; he has been on remand since January; and he does show, from the reports that we have seen, some positive signs of rehabilitation into society, and as we have said he is only 23 years old. He has already spent a number of years in prison.
We have looked at the value and the quantity of the drugs in question, and we think that we can adopt a slightly different view, and take a starting point in this case of 6 years imprisonment. Now, on that basis, we are going sentence you to 4 years imprisonment, as opposed to the 5 recommended by the Crown. We order the forfeiture and destruction of the drugs.
Thank you very much Mr Messervy for your help, and Crown Advocate we would like you please to refer the matters we have raised about the Drug and Alcohol Services decision to the Attorney General, to see whether he can take the matter up with them, because we are very disturbed about it.
Authorities
R -v- Adamson (1988) 10 Cr. App. R. (s) 305.
R -v- Heather (1979) 1 Cr. App. R. (s) 139.
Campbell, Molloy and MacKenzie -v- The Attorney General (1995) JLR136 CofA
Whyte -v- The Attorney General (17th March,1999) Jersey Unreported CofA [1999.052]