Jersey Unreported Judgments

 [2003]JRC066

ROYAL COURT

(Samedi Division)

7^th April 2003

The Attorney General

-v-

Alfred Fennelly

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 28th February, 2003, following a guilty plea entered on 7^th February 2003:

Age:     35.

Details of Offence:

Fennelly had been stopped at the Airport.  He was found to have 76.77 grams of cocaine in his baggage.  He had initially removed the cocaine from his baggage prior to search and then replaced it in his baggage.  Officers had, however, carried out a search in which it had been found.  He had made a no comment interview and had initially pleaded not guilty.

Details of Mitigation:

Fennelly had entered a guilty plea from his second appearance in the Magistrate's Court.  Excellent character references were supplied.  He had no previous convictions relating to drugs offences.  There were tragic family circumstances in that there had been several deaths in the immediate family.  His wife was undertaking IVF treatment and he had managed to free himself of his serious drug addiction whilst in custody.  It was accepted by the Crown that whilst this was a very significant amount of cocaine it was for personal use.  This concession was based on evidence provided of a significant crack cocaine habit and substantial rental income from U.K. properties which was sufficient to fund his habit.

Conclusions:

Sentence and Observations of Court:

The Court considered this to be an exceptional case but noted that the Jurats were not unanimous in their decision.  The quantity was very high but, in view of the Crown's concession that the drugs were for personal use, the Court felt that an eight year starting point would be more appropriate.  The Court also felt that the mitigation was exceptional and that the appropriate custodial sentence was one of three years.

Advocate S.E. Fitz, Crown Advocate.

Advocate J.C. Gollop for the accused.

JUDGMENT

THE COMMISSIONER:

1.        Fennelly told customs officers when he was stopped at the airport on 10^th December that he had come to Jersey with his 16 year old female companion for a night's stopover in order to go shopping.  He had £30 in cash on him and no bank or credit cards.  He told customs officers that he had used cocaine a week before and his urine test proved positive to the presence of cocaine.  A condom, wrapped, was found in his luggage containing 76.77 grams of white powder which contained 27% by weight of cocaine.  This is a significant amount.  But the Crown accepts that this was for his personal use.  He was nevertheless bringing a substantial amount of this pernicious drug into the island.

2.        The Crown says that he might have sold it to supplement the £30 in cash that he brought with him for the shopping expedition and that, on the face of it, is a serious point.  Mr Gollop, however, says that Fennelly was an addict with a daily habit and it is unlikely that he would have allowed the drugs to be lost or stolen as he needed them so desperately for himself - and particularly, as he was going to reduce the amount to use it as crack cocaine. 

3.        Furthermore, it appears that he came to Jersey to see a friend called Mr Smith who owed him some £500.  This is borne out by the Probation Report and, in the absence of any investigation, is accepted by the Crown.  The cocaine, of course, would have been washed with another product which would then have been heated to form a crystal.  Mr Gollop argues that this would have reduced the amount of cocaine to 27 grams.  But that of course is speculation. 

4.        We remind ourselves that in Rimmer and ors -v- AG [2001] JLR 373 the Court of Appeal, in setting up the bands which apply by weight (1-20 grams: 7-9 years imprisonment; 20-50 grams: 8-10 years imprisonment) said this:

"We emphasise that these bands represent only guidelines and are not to be treated as if embodied in a statute.  The position of a particular defendant, on a particular count, within one of the bands is to be determined by reference to the weight of drugs and their rôle and involvement as principal factors, together with other lesser but relevant factors as indicated above.  The margins of these bands are also not to be treated as set in stone.  There may be exceptional cases in which on a particular count the starting point may be above or below the band otherwise appropriate.  However, we reiterate what this Court said in Campbell that it would be seldom that the starting point for any amount of drugs would be below seven years."

5.        We have to say at once that there is much mitigation.  He pleaded guilty on 15^th June but it must be said that his cooperation was limited.  He has no relevant criminal record and nothing for drugs.  On that basis he has a good character and excellent references have been supplied on behalf of Fennelly and he has expressed remorse and regret.  His personal background has some appallingly sad factors in it.  His wife is standing by him and they wish to start a family.  He has productive businesses that are up and running.  He has remained clean of drugs whilst in prison. 

6.        We have taken considerable time on his matter but I have to say that the Jurats are not unanimous.  This is a very unusual case but it must be said that the amount of drugs brought into Jersey is high.  Advocate Gollop has carried out his duties extremely well.  We feel that the starting point is too high but we also feel that a prison sentence is inevitable.  We will start at eight years' and, in the light of the very strong mitigating factors brought to our attention by Mr Gollop, we are going to reduce the sentence in these very unusual circumstances to one of three years' imprisonment and we order the forfeiture and destruction of the drugs.

Authorities

Conquer -v- AG (4^th April 2002) Jersey Unreported; [2002/73].

Rimmer and ors -v- AG [2001] JLR 373.