Jersey Unreported Judgments

2000/190

4 pages

ROYAL COURT

(Samedi Division)

 

27^th September, 2000.

 

Before: M.C. St.J Birt, Esq., Deputy Bailiff and

Jurats Myles, Potter, Tibbo  and Allo

 

 

The Attorney General

 

-v-

 

Karen Irene Durkin

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 1^st September, 2000, following guilty pleas to:

 

1 count of:  supplying a controlled drug , contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.

                  Count 1: cannabis resin.

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.

                  Count 2: heroin.

3 counts of:  possession of a controlled drug , contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978.

                  Count 3: heroin.

                  Count 4:  cannabis.

                  Count 5: cannabis resin.

 

Age:   40.

 

Plea:   Guilty.

 

Details of Offence:

 

Count 1-  Durkin was seen to hand cannabis resin (223mg street value £2.39) to an individual who put the cannabis in his mouth.  The police recovered the cannabis during the course of a search under the Misuse of Drugs Law.

 

Counts 2 to 5 - Following the search of the Defendant's home address, the police recovered 13.34g heroin at various locations in the communal area of a block of flats in which the accused was living and small amounts of  cannabis resin.  Prosecution sentencing on the basis of version/explanation given by defence to probation officer, namely that Durkin was using her step-son's mobile phone whilst step-son was serving prison sentence for drugs offences.   Supplier of step-son telephoned demanding repayment of £1,000 debt.  Durkin decided to purchase approximately ½ oz heroin from step-son's supplier with a view of selling a ¼ oz and retaining ¼ oz for her own personal consumption.  Prosecution therefore attributed 6.67g of heroin in Durkin's possession with intent to supply to an unnamed friend and remaining 6.67g of heroin for her own personal use.  The approximate total value of the heroin was £4,000 street value and wholesale value of approximately £2,000 and between 52/53% by weight diamorphine.  Amount that Durkin admitted she was going to supply to a friend would have been sufficient for 66 deals.

 

 

Details of Mitigation:

 

Crown adopted a starting point of 7 years and made an allowance of 2 years for mitigation.  Defence Counsel submitted that starting point should be 6 years because of the relatively limited degree of involvement of Durkin in drug trafficking.  Although the guilty plea was entered relatively late ( 1^st September, 2000) in relation to the count of possession with intent to supply heroin, Durkin had made admissions to the police that the heroin belonged to her but at that stage asserted that it was for her personal possession.  Drugs found in the communal area of the property and therefore guilty plea should attract full 1/3 discount for plea of guilty.  Guilty plea, limited involvement in drug trafficking.  Defendant aged 40, good employment record and, save for previous offence of possession of very small quantities of drugs, no previous convictions.  Made efforts to overcome her addiction.  Made several attempts to become drug free.  Letter of apology handed to Court which included an apology to the Police.  Spent 15 months on remand and subject to a curfew awaiting trial for drugs offences of which she was acquitted in April 2000.  Plans to leave Jersey to make a fresh start in Wales.  Ashamed of her use of drugs and in particular her family's response when they learn of this.  Remorse.  Not able to have children.  Between 1996/99 treated for depression.  Tragic series of deaths of relatives, friends, or persons known to her during a short space of time.

 

Previous Convictions:    7.8.98, possession of heroin/cannabis/amphetamine sulphate, in very small quantities.  (See Unreported Judgment 98/170 of 7.8.98).

 

 

Conclusions:

 

Count 1:  3 months' imprisonment.

Count 2:  5 years' imprisonment.

Count 3:  2 years' imprisonment.

Count 4:  3 months' imprisonment.

Count 5:  3 months' imprisonment.

All concurrent; TOTAL: 5 years' imprisonment.

Court was also asked to make a confiscation order in the sum of £2,703, and an order for the forfeiture and destruction of the drugs.

 

Sentence & Observations of Court:

 

Count 1:  6 months' imprisonment.

Count 2:  4½ years' imprisonment.

Count 3:  2 years' imprisonment.

Count 4:  3 months' imprisonment.

Count 5:  3 months' imprisonment.

All concurrent; TOTAL: 4½  years' imprisonment.

Confiscation order in the sum of £2,703 (not opposed) and order for the forfeiture and destruction of the drugs made.  In relation to count 1,  Crown's conclusions were increased because Court took the view that greater prison sentence needed to be imposed for actual supply of class B drug.  Court stated that the correct starting point is one of 7 years, but give slightly more credit for mitigation than that allowed for by the Crown in relation to the plea of guilty, the other mitigation (including the deaths of friends, and family friends) and the fact that the defendant had only one previous conviction for possession for a small quantity of drugs.  The letter handed to the Court indicates remorse and Court also took into account the other matters set out in 3 reports before the Court (namely probation report, psychiatric report and an alcohol and drugs assessment report from the Court Liaison Officer, Probation Service).

 

 

P.  Matthews, Esq., Crown Advocate

Advocate N.J. Chapman for the accused.

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

 

1.      This Defendant has told a number of different stories concerning the drugs found in her possession and her dependency on heroin.   She was found in possession of some 13.34 grams of heroin and some minor amounts of herbal cannabis and cannabis resin.

 

2.      The Crown is willing to accept the version first put forward by the Defendant to the Probation Officer and which is set out in the social enquiry report, namely, that she intended to sell one half of the heroin to pay a debt to a drug dealer,  which debt had been incurred by her step-son,  and she was to retain the other half for her own use.   The Court will therefore sentence on that basis.   The Defendant was also seen on a separate occasion to supply a small amount of cannabis resin to another person.

 

3.      The Court has considered the correct starting point and we remind ourselves of the principles laid down in Campbell, Molloy and MacKenzie -v- A.G. (1995) JLR 136 CofA, where it is said as follows.

 

"Much will depend upon the amount and value of the drugs involved, the nature and scale of the activity and, of course, any other factors showing the degree to which the defendant was concerned in drug trafficking.   We propose also to vary the lowest point of the band established in Clarkin; we accordingly state that it is seldom that the starting point for any offence of trafficking in a Class A drug on a commercial basis can be less than a term of seven years."

 

4.      This Defendant was intending to supply some 6.67 grams of heroin which is enough to make 66 score bags.

 

5.      In our judgment there is no comparison with the cases cited by defence counsel of AG -v- Cooper (1^st September, 2000) Jersey Unreported and AG -v- Postill (2^nd October, 1995) Jersey Unreported, which each concerned very small quantities of Ecstasy tablets, namely 15 in one case and 18 in another.   In our judgment the correct starting point in this case is one of 7 years.

 

6.      Turning to the mitigation, we have been urged to give more credit for the guilty plea than has been allowed for by the Crown on the basis that, although made late in the day, this was a guilty plea of considerable value, bearing in mind that the drugs were found in a communal area.   We do think that slightly more credit for that plea can be given than was allowed for by the Crown.

 

7.      We have also been urged to give credit for the other mitigation available.   Counsel has referred us to the unfortunate sequence of events with the death of a number of relatives and friends over a fairly short period. He has also referred us to the fact that the Defendant has only one previous conviction which was for possession of small amounts of drugs; she has no previous conviction for any form of dealing.   We have also considered the letter which the Defendant has written and which indicates considerable remorse.   We have also taken account of the other matters which defence counsel has urged upon us and which are set out in the three helpful reports which are before us.   In the light of all these matters we think we can reduce the conclusions slightly.

 

8.      Stand up, please, Durkin.   The sentence of the Court is that on count 1, you are sentenced to 6 months' imprisonment; the Court should add that we are increasing that sentence because we think that supply must attract a higher sentence than simple possession.   On count 2, you are sentenced to 4½ years' imprisonment; on count 3, you are sentenced to 2 years' imprisonment; on count 4, you are sentenced to 3 months' imprisonment; on count 5, you are sentenced to 3 months' imprisonment; all of those sentences to run concurrently, making a total of 4½ years' imprisonment; and we order the forfeiture and destruction of the drugs.

 

Authorities

 

 

Campbell, Molloy and MacKenzie -v-AG (1995) JLR 136 CofA.

AG -v- Chevalier  (9^th June, 1999) Jersey Unreported.

AG -v- Cooper (1^st September, 2000) Jersey Unreported.

AG -v- Postill (2^nd October, 1995) Jersey Unreported.

AG -v- Carrell (21^st May, 1999) Jersey Unreported.

AG -v- Roche (4^th July, 1997) Jersey Unreported.