Jersey Unreported Judgments

2000/98

3 pages

ROYAL COURT

(Samedi Division)

 

7^th June, 2000

 

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

                                                      Jurats Querée and Allo.

 

The Attorney General

 

-v-

 

Brian Jamie Botting (formerly Stopher)

 

 

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

                  Count 1: heroin.

                  Count 2: cannabis resin.

                  Count 4: cannabis resin.

                  Count 6: cannabis resin.

                  Count 8: morphine.

 

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

                  Count 3: cannabis.

 

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 7: heroin.

 

[count 5 was withdrawn on a not guilty plea, accepted by the Crown.]

 

Age:   21

 

Plea:   Guilty.

 

Details of Offence:

 

Counts 1-3 - these drugs found following a search of defendant's home in June 1999.   Heroin 60% pure.   Cannabis plants could have yielded up to 60 grams of cannabis.   Counts 4-6 - these drugs found following a second search of home in July 1999 and whilst on bail re offences in Counts 1-3.   Counts 7 and 8 - these drugs found following search of defendant's home in September.   Count 7 originally indicted as possession with intent to supply: indictment amended 9 days before trial was due to "simple" possession to which defendant pleaded guilty.   The heroin in Count 7 was found in 2 bags, the second bag containing 7 x wraps 80% pure.   Report from Bill Saunders confirmed defendant heroin addict and amount well within boundaries for personal use.   Defendant co-operative with police.

 

Details of Mitigation:

 

"Dire psycho-social background": one of 11 children, 3 of whom dead, 2 of which met violent deaths.   Dr. Sharkey described the defendant's use of drugs as being on an "industrial" scale and a "very disturbed young man... who had had a life to date that can only be described as dreadful".   Aged just 21.   Father of 13 month old daughter for whom he was primary carer.   Wants to remain off heroin.   Had been in custody for 2 months in relation to these offences before being granted bail.   Had allegedly re-offended (non drugs charges) and was remanded by Magistrate in custody on 7^th April where he had remained.   Royal Court made aware of new charges and relevant pleas, many of which were 'not guilty'.  Urged an individualised "Buesnel" non-custodial sentence.

 

Previous Convictions:

5 x previous in Magistrate's Court, 2 for possession of cannabis.

 

Conclusions:               Count 1:                             3 months' imprisonment.

                      Count 2:   £150 fine or 2 weeks' in default of payment imprisonment, concurrent;

                      Count 3:   £150 fine or 2 weeks' in default of payment imprisonment, concurrent;

                      Count 4:   1 month's imprisonment, consecutive.

                      Count 6:   1 week's imprisonment, concurrent.

                      Count 8:   2 months' imprisonment, concurrent.

                      TOTAL:  10 months' imprisonment.

 

 

Sentence & Observations of Court:

 

12 months' probation on 2 conditions in addition to the normal probationary conditions:

(i)    attend SMART course.

(ii)   Undertake treatment and random urine samples as directed by the Alcohol and Drugs Service.

Court told defendant "You have been extremely lucky today.   If you commit any further offences, in particular drug offences, you will be back before this Court and the Court will see no alternative to custod".

 

.

 

                                                Mrs. S. Sharpe, Crown Advocate

                                     Advocate Mrs. S.A. Pearmain for the Accused.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            In AG -v- Buesnel (1996) JLR 265, this Court made it clear that a sentence of imprisonment was no longer to be regarded as mandatory for possession of class A drugs.   However, the Court also made it clear that a custodial sentence would still normally be imposed where the quantity of drugs was not small or where the offence was aggravated in some way.   Whether the accused has previous convictions for drug offences will often be a very significant factor.

 

2.            In this case Botting clearly has a drug problem.   All the reports before us confirm this.   He was found in possession of personal amounts of heroin and cannabis at his home on three quite separate occasions.   He also has two previous convictions for possession of cannabis.   In addition he is now charged with some other offences before the Magistrate's Court, to some of which he has pleaded guilty.   All of this would point strongly towards a custodial sentence.   But, Mrs. Pearmain has urged a number of matters upon us.   She refers to his appalling background and upbringing as set out in the social enquiry report; his efforts to keep out of trouble since early 1998, which stand him in good stead; his youth; the two months he has spent on remand during which he has come off heroin; and the fact that he has a primary caring role for his young daughter.

 

3.            Taking all this into account, and not without considerable hesitation, the Court thinks that the balance just tips in favour of reform and the Court proposes to take a merciful course.

 

4.            Stand up, please, Botting.   The Court proposes to place you on probation for 12 months and there will be two conditions attached to that in addition to the normal conditions that you must not re-offend and you must behave as your probation officer directs.   The two additional conditions are that you will undertake the SMART course as directed by the probation service, and that you will undertake treatment and submit to random urine samples as directed by the drug and alcohol service.   And let me make this absolutely clear: you have been extremely lucky today.   If you commit any further offences, in particular drug offences, you will be back before this Court and the Court can see no alternative then but to a custodial sentence.   So the choice is yours; do not waste it.

 

 

Authorities

 

 

A.G. -v- de Freitas (18^th October, 1996) Jersey Unreported.

A.G. -v- Trinidade (20^th September, 1996) Jersey Unreported.

A.G. -v- Comache & Melim (24^th October, 1997) Jersey Unreported.

A.G. -v- Vieira (24^th April, 1998) Jersey Unreported.

A.G. -v- Butler (7^th January, 2000) Jersey Unreported.

A.G. -v- Langley (15^th October, 1999) Jersey Unreported.

A.G. -v- Buesnel (1996) JLR 265.

A.G. -v- Durkin (7^th August, 1998) Jersey Unreported.