Jersey Unreported Judgments

[2003]JRC072

royal court

(Samedi Division)

 

24^th April 2003

 

 

 

 

IN THE MATTER OF

the sentencing by the Superior Number of the Royal Court, to which the defendants were remanded by the Inferior Number on 24th January, 2003, following guilty pleas as follows:

 

Luis Miguel da Silva Antunes

 

1 count of:

Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: Count 1: diamorphine.

 

Sandra Teles Saraiva

 

1 count of:	Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: Count 2: diamorphine..
2 counts of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 3: diamorphine. Count 4: cannabis.

 

Carlos Jordano Gouveia Viveiros

 

1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 5: diamorphine.
1 count of:	Possession of a controlled drug, with the intent to supply contrary to Article 6 (2) of the Misuse of Drugs (Jersey) Law, 1978: Count 6: diamorphine.

 

[On 24^th January, 2003, the Defendant's plea of not guilty to count 5 was accepted by the Crown].

 

Ruling by the Court, on applications by the first two defendants that, in relation to offences under

Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978:

(1) the Judgment of he Court of Appeal in McDonough -v- AG (28^th September 1994) Jersey Unreported binds the Royal Court and has not been overruled by Rimmer and Ors -v- AG [2001] JLR 373; and

(2) it is not necessary for there to be evidence of specific, intended supply; evidence of general drug dealing would be sufficient, in which accused has participated in some measure.

 

 

M St J O'Connell, Esq., Crown Advocate.

Advocate J Bell for L.M.S. Antunes

Advocate D Cadin for S.T. Saraiva

C.J.G. Viveiros did not appear and was not represented.

 

judgment

the DEPUTY bailiff:

Introduction

1.        I have been asked to rule on certain points of law in connection with the proposed sentencing of the first two defendants.  Viveiros has taken no part in this hearing as the issues raised do not concern him. 

2.        In order to appreciate the legal points it is necessary to outline the circumstances of the offences.  However it is only the sentencing Court, comprising the Jurats, which may make definitive findings of fact.  Accordingly any view which I express as to the facts must be regarded as provisional; any final determination of the facts rests entirely with the Jurats. 

The factual background

3.        At about 1.10 p.m. on 8^th October 2002 police officers approached a Ford Fiesta car (which belonged to Antunes) in a car park on Noirmont Common.  Antunes was in the driving seat and Saraiva in the back.  Shortly afterwards the police arrested Viveiros who was walking down a track about 100 yards from the car.  He was found to be in possession of 142.76 grams of heroin in a black plastic package bound with tape.  It was hidden in his boxer shorts. 

4.        From interview with Saraiva the following facts emerged.  Viveiros had lived with her at her flat for about a month before the day in question.  He was a regular dealer in drugs and she was aware of this.  Indeed he used some scales, a roll of bags and a piece of glass, which were stored at the flat, to cut up heroin and put it in individual bags for sale (known as `bagging up').  She had caught a glimpse some time earlier of the package in question and suspected that it contained heroin although she did not know the amount.  She and Antunes had accompanied Viveiros in Antunes' car to Noirmont Common at night a few days earlier.  On that occasion Viveiros had left Saraiva and Antunes in the car and had gone off for a while in the dark before returning.  She suspected that it had something to do with the package.  It seems likely that Viveiros hid the package somewhere at Noirmont Common on this occasion. 

5.        On the day of the arrest she was telephoned by Viveiros who asked her to assemble the scales, roll of bags and piece of glass and meet him with this equipment.  Shortly afterwards Antunes arrived.  He carried out the bag containing the equipment to the car in which Viveiros was seated.  They all drove up to Noirmont Common.  She knew that the purpose of the trip was to `bag up' some heroin.  On arrival at the Common Viveiros told her and Antunes to stay in the car and went off.  At that stage Antunes told her that he was to receive a free hit of heroin from Viveiros in exchange for giving Viveiros a lift in his car to the Common.  The police then arrived.

6.        The version given by Antunes at interview was broadly consistent.  He is a heroin addict and had purchased heroin from Viveiros on previous occasions.  Although he suggested it was slightly more than a few days earlier, he agreed that he had previously driven Viveiros and Saraiva to Noirmont Common at night and that Viveiros had left him and Saraiva in order to do whatever it was that he wished to do.  Although he was not sure what this was, he gathered from conversation on the way back that Viveiros had stashed some heroin on the Common.  On the day of the arrest he was in need of heroin for his addiction but did not have any money.  He spoke to Viveiros who said that he did not have any heroin on him and that he (Antunes) would have to wait a while and that he would also have to give Viveiros a lift.  Viveiros does not have a car.  They went to Saraiva's flat to collect the bag.  Antunes realised that the bag contained "things to do with drugs".  He said that he believed that Viveiros had one or two grammes of heroin at another location and that Viveiros was going to split this up.  Antunes expected to be supplied with a small personal amount of heroin in return for driving Viveiros to the Common.  On arrival he was told by Viveiros to pull into the car park and wait in the vehicle whilst Viveiros went off.  The police then arrived.

7.        As a result of these events Viveiros has been charged with possession of heroin with intent to supply.  This clearly relates to the package of 142 grams.  Saraiva and Antunes have each been charged with a count of being concerned in the supplying of a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978, the particulars being that on the 8^th October 2002 at Noirmont Common the relevant defendant was concerned in the supplying of heroin.  The defendants have all pleaded guilty to the counts against them and are due to be sentenced next week by the Superior Number. 

8.        On the face of it one would not have thought that sentencing these two defendants would have raised any difficulty of principle.  The Crown is content that they should be sentenced on the version of facts which they put forward at interview.  Each should therefore be sentenced for what he or she actually did.  The count against each defendant is confined to what was done on 8^th October.  Thus, in the case of Saraiva, her participation involves simply the gathering of the equipment for bagging up and accompanying the others in the car to Noirmont Common with the equipment.  It is clear that she knew that the intention was for Viveiros to carry out some bagging up of heroin from his stash at Noirmont but there is no suggestion that she knew the amount of the heroin which Viveiros possessed, nor did she know how much heroin he intended to bag up on this particular occasion for supply to his customers.  She assisted simply by delivering the bagging up equipment for such purposes as Viveiros might utilise it for on the day.  It is clear however that, at the time she participated by delivering the equipment, she did not know of the plan for Viveiros to supply a free hit to Antunes in exchange for his driving.  She only learned of this after they had arrived at Noirmont Common. 

9.        Similarly, in the case of Antunes, his participation involved driving Viveiros up to Noirmont Common so that Viveiros might bag up some heroin for sale.  Again there is no suggestion that Antunes knew how much heroin was stashed by Viveiros at Noirmont, nor how much Viveiros intended to bag up on that particular day.  His sole involvement was drive Viveiros to the location of his stash in order to bag up such amount as Viveiros thought fit in exchange for which Antunes would receive a small amount of heroin for his personal use. 

10.      Unfortunately neither the Crown nor Mr Cadin agreed to the Court sentencing on this simple basis.  Mr Bell, on the other hand, was content that it should proceed in this way.  Crown Advocate O'Connell submits that the Court must proceed in accordance with the principles laid down in  Rimmer -v- AG (2001) JLR 373 and that this involves consideration of the amount of heroin with which both defendants were concerned.  He goes on to submit that both defendants were concerned in the supplying of the full contents of the package, namely 142 grams.  This leads him to argue that the case falls within the 10 - 13 year band set out in Rimmer applicable for 100 - 250 grams.  He selects a starting point of 11 years for all three defendants.  It is worth pointing out that this has the consequence that, assuming a not guilty plea by all three defendants and no or similar personal mitigating circumstances, all three defendants would receive the same sentence despite what are obviously completely different levels of culpability. 

11.      Mr Cadin, on the other hand, says that a person can only commit an offence under Article 5(c) in relation to what he described variously as a `definite supply', an `actual envisaged supply' or an 'identified future supply',  which Saraiva had to be aware of.   In this case the only such definite supply was that to be given to Antunes; that is therefore the only supplying with which each defendant was concerned and for which he or she can be sentenced.  This was so despite the fact that, at the time that Saraiva, for example, undertook her participation by delivering the equipment, she did not know of this particular supply and was willing to deliver the equipment for whatever supplying Viveiros proposed to undertake.  In practical terms there might not be a great difference in the end result between sentencing on the events which I have described in paragraph 8 above and sentencing as Mr Cadin submits we must.   But the point raised is an important one of legal principle and therefore needs to be addressed.

12.      I therefore need to consider two issues:-

(i)        Is the Court bound by the decision of the Court of Appeal in McDonough -v- AG (28^th September 1994) Jersey Unreported or has that decision been impliedly overruled by the decision in Rimmer?

(ii)       Is the Court obliged as a matter of law to sentence Saraiva on the basis that she was concerned only in the supply of a small amount to Antunes notwithstanding that, at the time of her participation in the relevant acts, she did not know of this particular proposed supply and was envisaging Viveiros bagging up an unknown and indefinite amount of heroin as he might select for the purpose of his drug-dealing activities?

(i)      Is the Court still bound by McDonough?

13.      Mr Bell, on behalf of Antunes, submitted that McDonough is still applicable and has not been impliedly overruled either by Campbell -v- AG (1995) JLR 136 or by Rimmer.  In my judgment he is correct. 

14.      The first case which established the framework for sentencing in drug trafficking cases is Clarkin and Pockett -v- AG (1991) JLR 213.  That was a case of possession with intent to supply LSD.  The Court of Appeal established for the first time the practice of fixing upon a starting point and then making deductions for mitigation.  The Court made it clear on page 219 at lines 9-12 and lines 26-28 that it was considering offences of possession with intent to supply a Class A drug.

15.      McDonough was charged with being concerned in the supplying of heroin.  The Court of Appeal specifically considered whether the guidelines established in Clarkin & Pockett (namely starting points varying from 6 to 9 years) were applicable.   The Court said this at page 3 of the judgment:-

"Thirdly, the guilt of a person who is concerned with the supplying of a controlled drug is by no means necessarily to be equiparated with the guilt of the principal offender who supplies the drug.  There are many cases where conduct of a peripheral nature, although falling within the words "concerned in the supplying" and so on, falls very far short of the gravity of the conduct of the supplier himself.  For example, A at the request of B may lend B a small sum of money knowing that B intends to apply it to the purchase and then to the supply of a controlled drug; or, C at the request of D may lend D his car knowing that D intends to use it to distribute a small quantity of a controlled drug.  In both of these postulated cases A, or, as the case may be C, is concerned in the supplying of a controlled drug but we would think his guilt falls short of that of B or D.

Fourthly, it follows, in our judgment, that the case of Clarkin & Pockett, heard in this Court (1991) JLR 213, is not to be treated as governing cases of being concerned in supply.  That case was one where the appellants were charged with possession of a Class A drug with intent to supply.  This Court decided that in cases of that nature the starting point before effect was given to any mitigation on any ground must be a sentence of 8 to 9 years' imprisonment and it said that by cases of that nature it meant cases of possession of a Class A drug with intent to supply it to others where the involvement of the defendant in drug dealing was comparable with that in Fogg -v- AG (1991) JLR 31.  In Fogg the appellant had pleaded guilty to possessing 1,000 units of lysergide with intent to supply.  He had travelled to Jersey in order to sell drugs.  That quantity of lysergide remains the largest so far seized in Jersey.  Clarkin & Pockett remains the leading authority on the sentencing bench mark in cases of the supply of a Class A drug.  The Court in that case was not dealing nor did it purport to deal with cases of being concerned in supplying a Class A drug.  The approach adopted in Clarkin & Pockett was wholly appropriate to cases of supply.  It is not, in our judgment appropriate to cases of being concerned in supplying and we disagree both with the contention of the Crown in the present case that it should be applied, and with the acceptance in the outline of appeal on behalf of the present Applicant that there is no reason why the Clarkin & Pockett guideline should not apply.  To start from a bench mark before mitigation of 8 to 9 years' imprisonment in either of the hypothetical cases we postulated earlier in this Judgment would be patently excessive.

We do not consider that we should attempt to lay down guidelines for sentence in cases of being concerned in the supplying of a Class A drug.  The statutory phrase "to be concerned in", which is an ingredient of the offence, embraces so wide a spectrum of turpitude as to render a bench mark inappropriate, as Mr Whelan for the Crown conceded.  What we do think it proper to state is that normally a custodial sentence should be passed, tailored to the facts of the particular case and to the mitigation available to the accused.  There may, however, be wholly exceptional cases where, having regard to the peripheral nature of the involvement of the accused, a non-custodial sentence would be justified.  At the other end of the scale his involvement may be so gross as to match or even exceed in blameworthiness that of the actual supplier, so that a sentence appropriate to supplying would be fully justified."

It is clear that the essential reason for the Court's decision was that, in view of the wide spectrum of conduct which was covered by the offence of being concerned in supplying, it would not be appropriate to apply the guidelines applicable for cases for offences of supply (or possession with intent to supply).

16.      In Campbell a five-member Court of Appeal reviewed the Clarkin & Pockett guidelines.  In summary the Court varied the 6 to 9 years starting point to one of 7 to 12 years with a provision for going beyond 12 years in cases which were more serious than that of Fogg.   The case was concerned therefore with the quantum of the range established by Clarkin & Pockett.  In relation to the offences covered the Court said this at 145:-

"We have employed the term "trafficking" deliberately.  In the past, some distinctions may have been drawn between offences involving the importation of Class A drugs and offences involving their supply or their possession with intent to supply.  In our judgment there is no justification for any such distinction.  The guidelines which we have set out above apply to any offence involving the trafficking of Class A drugs on a commercial basis." 

In my judgment it is clear that the Court was stating that the guidelines apply not only to offences of supply or offences of possession with intent to supply but also to offences of importation.  No reference was made to McDonough which was not cited to the Court.  The offence of being concerned in the supplying of controlled drugs was therefore not before the Court and not in its consideration.  Campbell was an elaboration of Clarkin & Pockett which had been distinguished by the Court of Appeal in McDonough.  I do not think that the Court of Appeal in Campbell intended by a side wind to overturn McDonough when it was not before them.

17.      Rimmer was merely an elaboration of Campbell.  It very helpfully gave more specific guidance (by reference to weight and bands) in connection with starting points.  It is true that the judgment frequently refers to `trafficking' or `drug trafficking' offences but that is taken from the language in Campbell.  There is nothing in the judgment to suggest that Rimmer intended to widen the offences covered by the Campbell guidelines.  Again McDonough was not referred to by or cited to the Court, nor was the offence of being concerned in the supplying of drugs before the Court. 

18.      For these reasons I am in no doubt that McDonough continues to be binding upon this Court unless or until there is a decision of the Court of Appeal which says otherwise and rules that the Rimmer guidelines are applicable.  I have to say that I reach this conclusion with no dismay.  As McDonough itself makes clear the reason for not applying for what were then the Clarkin guidelines (and are now the Rimmer guidelines) is because of the enormous range of activity which falls within the offence of `being concerned'.  This is shown by the present case.  As I have already mentioned the application of Rimmer has led the Crown to propose a starting point of 11 years for all three defendants despite the fact that the involvement of Saraiva (the delivery of the various bagging up equipment) and Antunes (the provision of transport to the location of the stash of heroin) is clearly of a wholly different magnitude to that of Viveiros.  Even if one dropped the starting point for Saraiva and Antunes to the bottom of the applicable band in Rimmer (10 years) this would still not reflect the different degree of involvement.  Mr O'Connell stated that the Court could always go outside the brackets in Rimmer as was envisaged in paragraph 34 of the judgment in that case.  However that paragraph also made it clear that this was to be reserved for exceptional cases.  Because of the wide variety of activities encompassed within an offence of `being concerned', one can envisage an endless number of 'exceptional' cases.

(ii)      Is the Court bound to sentence on the basis that Saraiva was only concerned in the supply to Antunes?

19.      Article 5(c) of the 1978 Law provides as follows:-

"Subject to the provisions of any Order for the time being in force under Article 10 of this Law, it is an offence for a person -

(c) to be concerned in the supplying of, or in the making of an offer to supply, a controlled drug to any person."

Although the wording of Section 4(3)(b) of the Misuse of Drugs Act 1971 in the United Kingdom is not identical, it is very similar and neither party has sought to rely upon any distinction.  Accordingly authorities in the United Kingdom may be of assistance in construing the local provision. 

20.      Mr Cadin referred first to R -v- Hughes (1985) 81 C App R 344.  That case was focused primarily on the failure by the trial judge to given an adequate direction to the jury on the meaning of the expression "concerned in".  However, in the Court of Appeal, Goff, LJ summarised the elements of the relevant offence at 348:-

"It appears to us that, for an offence to be shown to have been committed by a defendant contrary to sub-section (b) or sub-section (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of Section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug."

Although the point was not at issue and therefore not argued, the judgment seems to have envisaged the need for an actual supply because there is reference to the fact that counsel had drawn the attention of the trial judge to the need to prove an actual supply. 

21.      However, Mr Cadin does not interpret Hughes as requiring there to have been an actual completed supply.  He accepts, for example, that an intended supply which is interrupted by police before completion is sufficient to found a conviction.  What he does say is that the parties must be engaged in a specific envisaged supply. 

22.      He accepts that the Scottish case of Kerr -v- HM Advocate (1986) SCCR 81 is against him.  In that case Lord Hunter, in a judgment concurred in by the other judges of the court emphasised that the offence of `being concerned' was a very wide one.  Thus at 87 he said:-

"Judging from its terms and the context in which it occurs, I consider that section 4(3)(b) was purposely enacted in the widest terms and was intended to cover a great variety of activities both at the centre and also on the fringes of dealing in controlled drugs.  It would, for example, in appropriate circumstances, include the activities of financiers, couriers and other go-betweens, look-outs, advertisers, agents and many links in the chain of distribution."

23.      In response to a suggestion that a conviction under the provision could not be obtained unless the Crown proved an actual and completed supply of the drug Lord Hunter said this at 88:-

"This argument is not only displaced by the interpretation of the statutory provisions which has commended itself to me, but also overlooks the fact that the offence created by section 4(3)(b) is that of being concerned in the `supplying' of a controlled drug to another.  This covers in my opinion the whole process of supplying to others, a process which may not be completed and which, fortunately, is sometimes interrupted by police and other action.  It would be strange indeed if Parliament, having used the very wide language which was enacted in section 4(3)(b) should be held to have imposed a limitation which would often deprive the provision of practical effect.  In my opinion the actual language used in the provision points strongly against any such narrow construction.  I am satisfied that the provision is designed to catch any person who is concerned at any stage in the process of supplying to others from the beginning of that process to the end."

The comments of the Lord Justice-Clerk at 89 were to like effect:-

"In particular, I agree that a contravention of section 4(3)(b) may be established even though there has been no actual supply of the controlled drug to another person; the offence which the statute creates is being concerned in the supplying of a controlled drug to another, not being concerned in the supply of a controlled drug to another.  To give an example, if a man were to assist a drug user by introducing him to a supplier of controlled drugs, that could involve the former being concerned in the supplying of a controlled drug to another even though no actual supply took place on the occasion in question."

24.      As the commentary on the case (to which I have been referred) suggests, the court seems to have been of the view that the provision does not require there to have been some particular transaction or specific supply envisaged.  It is sufficient to link the accused generally with drug dealing.  It seems to me that Kerr may be inconsistent with Hughes and, to the extent that it is, I prefer the reasoning in Kerr.  The offence is that of being concerned in `the supplying' of drugs.  That is a general expression.  For example, a shopkeeper can properly be described as being concerned in `the selling' of goods.  This does not suggest reference to a particular sale.  The shopkeeper is in the business of selling; similarly with `the supplying' of controlled drugs.

25.      Furthermore the interpretation called for by Hughes would, as Lord Hunter indicates, deprive the offence of any real effect.  Take the case of a financier referred to by Lord Hunter and also referred to by the Jersey Court of Appeal in McDonough.  In some cases the financier may finance a particular purchase with a particular identified sale in mind.  However it is much more likely that a financier will finance the dealer generally for the purpose of acquiring drugs for onward sale by the dealer to whomsoever the dealer chooses to sell them.  According to Mr Cadin, a financier in the latter case would not be guilty of the offence.  That seems to me to be inconsistent with the wording of the statute.  In my judgment a general financier is indeed concerned in the supplying of drugs by the dealer.  Take similarly the example of an advertiser given by Lord Hunter.  By definition a person who advertises drugs for sale will not know the identity of a buyer nor will he have a particular transaction in mind; that is the purpose of the advertising.  On Mr Cadin's test, it is almost impossible to envisage an advertiser being guilty of the offence.  It seems to me that a person who advertises for customers on behalf of a dealer is concerned in the resulting supplying of drugs by that dealer.  Take also the example of a security guard.  Suppose a person guards a warehouse in which he knows that a dealer keeps his stock of drugs from which he (the dealer) periodically removes part in order to sell.  The guard is not involved in or even aware of any particular sales; he simply knows that the dealer is engaged in the business of selling drugs and he is guarding them for the dealer.  Is he not concerned in the supplying of drugs by the dealer?

26.      So too in the present case.  Saraiva undertook her participating activities at a time when she had no knowledge of any specific proposed supply to Antunes.  She simply envisaged assisting Viveiros by bringing the bagging equipment so that he could bag up such amount of heroin as he wished to on that particular occasion for sale to such persons as he proposed.  Mr Cadin argues that it is only because, unknown to her, a specific transfer to Antunes was planned, that she can be guilty of the offence with which she is charged.  If there had been no such sale, then notwithstanding her activities, she would not be guilty of any offence because she would not have had in mind the specific ascertained sale.  This seems to me to be wholly illogical. 

27.      There is no previous Jersey authority on the correct interpretation of Article 5(3).  The only passing reference is that in McDonough to which I have referred earlier.  I accept that the matter now before me was not before that court but the Court of Appeal clearly envisaged the offence being of wide import and sufficient to catch financiers and people who supplied cars.  In my judgment, the decision in Kerr is, for the reasons I have given, not only more consistent with the language used in the statute but it is also more consistent with the underlying policy behind the Law.  I therefore hold that it is not necessary for there to be a specific supply in mind.  It is sufficient if the accused is concerned in the supplying of controlled drugs in the sense of the general business of supplying drugs.  Mr Cadin submitted that such an interpretation would be far too wide but I do not agree.  The Court will still have to be satisfied that any acts undertaken by the accused were sufficiently proximate to the supplying as to amount to being `concerned' in the supplying.  Furthermore the Court will of course in sentencing be able to take into account the state of knowledge of the participator as to the extent of the supplying in question.   

28.      I am content to be able to reach this decision.  It enables the Court to sentence both Saraiva and Antunes for what they actually did, namely to assist in their respective ways the activities of Viveiros in the supplying of drugs.  They both did so when they had no knowledge as to the amount of heroin which Viveiros intended to bag up for supply.  It might have been a small amount.  It might have been a large amount.  Indeed we shall never know the amount because the operation was interrupted.  Mr Cadin's construction would have required the Court artificially to restrict the responsibility of the defendants to the single supply to Antunes.  On the other hand, although this will ultimately be a matter for the Jurats, it seems to me that Mr O'Connell's approach was similarly flawed in that it artificially attributed to each defendant participation in the supply of the entire package of heroin.  For my own part I see no justification for such an attribution.  No doubt it was driven by the need to fix on a specific quantity of heroin in order to apply the Rimmer guidelines.

29.      I should add that Mr Cadin raised a subsidiary point, namely that Saraiva's plea was ambiguous and could be interpreted as relating to the single supply to Antunes or alternatively to Viveiros' general dealing.  The Court should therefore proceed on the basis most favourable to Saraiva.  I do not consider the plea to be ambiguous.  The facts relied upon by the Crown are not disputed.  Soraiva participated in Viveiros' dealing activities by delivering the bagging equipment for such purposes as he might require it.  As she was not even aware of the proposed supply to Antunes when she participated, it seems artificial to say that her plea may have been restricted to that activity.

30.      Finally I should deal with the concern of both Mr Cadin and Mr Bell that the `being concerned' of their clients might be held to include some of their earlier activities in relation to Viveiros as described earlier.  The Crown has not laid any charge in respect of those activities;  the relevant counts are confined to the day in question.  The previous events are relevant to establish the defendants' state of knowledge but they may only be sentenced for their participation on the day of arrest.

Summary

31.      I hold therefore that:-

(i)        McDonough has not been overruled.  The guidelines in Rimmer are therefore not applicable to the charges of `being concerned' against Saraiva and Antunes.

(ii)       For an accused to be concerned in the supplying of controlled drugs by a dealer, there does not have to be a specific identified sale in mind; it is sufficient if, with the requisite knowledge and by means of sufficiently proximate acts, the accused is concerned in the general supplying of the dealer.

I will therefore be directing the Jurats to proceed on that basis when sentencing.

Authorities

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

McDonough -v- AG. (28^th September 1994) Jersey Unreported.

Campbell and Ors -v- AG [1995] JLR 136.

Clarkin and Pockett -v- AG [1991] JLR 213.

Fogg -v- AG [1991] JLR 31.

Misuse of Drugs (Jersey) Law 1978: Article 5 (c).

R -v- Hughes (1985) 81 C.App.R. 344.

Kerr -v- H.M. Advocate (1986) SCCR 81.