Jersey Unreported Judgments

Court of Appeal

29 September 1999

Before:. R C Southwell, QC, (President);

Hon. M.J. Beloff, QC, and J P C Sumption, QC

Colin Chevalier

v

AG

9 counts of possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1961:

counts 1,4, & 6: diamorphine, on each of which counts a sentence of 9 months imprisonment was passed;

counts 2,5, & 8: cannabis resin, on each of which counts a sentence of 3 months imprisonment was passed;

count 3 methadone hydrochloride, on which count a sentence of 9 months imprisonment was passed;

count 9:MDMA, on which count a sentence of 9 months imprisonment was passed;

count 10:amphetamine sulphate, on which count sentence of 3 months imprisonment was passed; and

1 count possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

count 7:diamorphine, on which count a sentence of 5 ½ years imprisonment was passed.

All the sentences to run concurrently.

Leave to appeal was refused by the Bailiff on 6 July 1999 and the Appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court on 9 July 1999.

Advocate R Tremoceiro for the Appellant

W J Bailhache, Crown Advocate

JUDGMENT

SOUTHWELL JA: The circumstances of this case are tragic as in so many of these drug cases. Mr. Chevalier is a drug addict. On 14 May 1999 he pleaded guilty to offences involving the possession of class A and class B drugs committed on 8 June 1998, 26 June 1998 and 7 October 1998, and also to an offence committed on 7 October 1998 involving the possession of a class A drug with intent to supply. On 9 June 1999 the Superior Number of the Royal Court sentenced him on each of these counts to concurrent sentences of imprisonment:

-on the possession of class A drugs, to sentences of 9 months imprisonment.

-on the possession of class B drugs, to sentences of 3 months imprisonment.

-on the possession of a class A drug with intent to supply, to a sentence of 5½ years imprisonment.

Leave to appeal against the sentence of 5½ years only was refused by a single Judge of this Court on 6 July 1999.

Mr. Chevalier on 9 July 1999 renewed his application for leave to the plenary Court of Appeal. We are indebted to Advocate Tremoceiro for the appellant and to Crown Advocate Bailhache for the Crown for their careful and succinct submissions.

It appears that Chevalier has been addicted to both class A and class B drugs for some time. In order to secure drugs to meet his addiction from 1995 he took to acting as a middleman in the delivery of prohibited drugs from the big suppliers to the street dealers, thereby gaining (in particular) a regular supply of heroin for himself. He sought to justify this activity by saying that this means of funding his drug dependence was preferable to the common alternatives of burglary and theft from shops, an average earned wage being inadequate to fund such an addiction to class A drugs. In our judgment this provides no justification or mitigation whatever for his serious offence.

As mitigation the matters advanced were the following:

(1)The guilty plea. Chevalier is entitled to some reduction from the appropriate starting point under the guidelines stated by this Court in Campbell, Molloy and Mackenzie -v- Attorney General (1995) JLR 136 for his plea of guilty. But this is not strong mitigation since he was arrested on each of the three dates already mentioned (8 and 26 June and 7 October 1998) in circumstances in which no other plea was possible. It is also to be noted that despite having been arrested and charged on 8 and 26 June 1998 he was still prepared to run the risk of further arrest by continuing to take a quantity of a class A drug with intent to supply in October 1998. Mr. Tremoceiro submitted that it was doubtful whether Chevalier would have been successfully prosecuted for an offence of possession of heroin with intent to supply if he had chosen not to plead guilty. This Court does not agree, having regard to the materials and deal lists found in Chevalier’s accommodation.

(2)His addiction. This is no mitigation whatever. A person who is addicted can readily obtain medical treatment for his addiction, as indeed Chevalier has done from time to time. The fact that addiction to drugs or alcohol may make a person more ready to offend is an aggravating factor. Otherwise the unacceptable position would be reached that the worse the addiction the stronger the mitigation would be.

(3)This was his first offence of possession with intent to supply of a class A drug. This is a matter which the sentencing Court takes into account, but it is of relatively little consequence as a mitigating factor. The Court has also to take into account the previous convictions for possession of prohibited drugs which the appellant has.

(4)The letter dated 8 June 1999 which the appellant has addressed to this Court. In his letter he has emphasised the problems he has undergone through his addiction, and his desire to achieve an end to his addiction, particularly through any form of drug rehabilitation programme which can be made available to him while he is in prison. This Court wishes to emphasise how important it is that an effective drug rehabilitation programme is made available at HM Prison La Moye with the necessary resources, financial and human, for this purpose, and that Chevalier is enabled to take part in such a rehabilitation programme. But his need for rehabilitation cannot be relevant to the length of his imprisonment.

Under the Campbell, Molloy & MacKenzie guidelines the starting point for sentencing in respect of an offence of possession of class A drugs with intent to supply (given the street value of nearly £3,000 of the heroin seized on 7 October 1998) is from 7 years and upwards. The Crown submitted that the starting point should be 8 years, with 2½ years for mitigation, so that the Crown's conclusions were for a sentence of 5½ years. The Royal Court considered that the starting point should be 7 years but with only 1½ years for mitigation, resulting in a sentence of 5½ years as submitted by the Crown. The Crown’s conclusions are to be accorded due respect. But it is for the sentencing Court to form its own judgment as to the appropriate sentence.

In our judgment the Royal Court took the correct starting point under the guidelines of 7 years. 8 years would have been too long. The Royal Court must then have taken the view that a discount of 2½ years from the starting point of 7 years would give undue weight to the mitigating factors, and they must have decided that a discount of 1½ years would be appropriate. This Court agrees with the Royal Court. The sentence of 5½ years is in all the circumstances of this case an appropriate sentence.

Accordingly leave to appeal is refused.

Authorities

Campbell, Molloy and MacKenzie -v- AG (4^th April, 1995) Jersey Unreported CofA; (1995) JLR 136 CofA.

AG -v- Hervey (7^th October, 1988) Jersey Unreported.

AG -v- Coutanche (26^th February, 1992) Jersey Unreported.

AG -v- Cappie & Hailwood (4^th December, 1991) Jersey Unreported.

AG -v- Schollhammer (5^th March, 1992) Jersey Unreported.

Drug Trafficking Offences (Jersey) Law, 1988: Article 4.