Jersey Unreported Judgments

[2004]JCA124

COURT OF APPEAL

 

                                                                  15 July, 2004.

 

 

Jonathan Michael HASSON

-v-

The Attorney General

 

Appeal against a total sentence of 6 years' imprisonment passed on 23 February, 2004, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 9 January, 2004, on a guilty plea to:

 

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, on which count a sentence of 6 years' imprisonment was passed.

 

[The Crown did not proceed with count 1.]

 

Admitted breach of a 230 hour Community Service Order and of a 12 months' Probation Order imposed by the Royal Court on 5 September, 2003 and made up as follows: Community Service Order:  Count 1 (driving whilst disqualified: 50 hours; Count 2: driving uninsured: 50 hours, concurrent; Count 3: possession of heroin: 180 hours, consecutive; Count 4: possession of cannabis: 5 hours concurrent:  Total 230 hours Community Service Order.  The 12 months' Probation Order imposed for breach of a Magistrates' Court binding over order and Community Service Order and made up as follows: Counts 1 - 3 (possession of drugs): 1 year's Probation Order; Count 4: [driving uninsured]: £100 fine or 1 week's imprisonment in default of payment; Count 5: (driving uninsured) 1 year's Probation Order, in respect of which breach, a sentence of 9 months' imprisonment, concurrent, was passed.

 

Leave to appeal was granted by the Bailiff on 22 May, 2004.

 

 

 

Advocate M.J Haines for the Appellant;

C.M.M. Yates, Esq., Crown Advocate.

 

 

JUDGMENT

 

THE PRESIDENT:

 

1.        Mr Hasson is 27 years old.  He has lived in Jersey for 7 years, and in recent years in the flat of his partner and her 8 year old son.  He has several previous convictions, mostly for theft and the like, but until August 2002 none for drug offences.  On 14 August 2002 he was convicted by the Jersey Magistrate's Court of three offences of possession of controlled drugs (and two driving offences), and was ordered to be bound over for 6 months and given a 50 hours community service order.  On 27 September 2002 he appeared again before the Magistrate's Court for breach of the two orders, which were continued.  On 5 September 2003 he appeared before the Royal Court and was again convicted on two counts of possession of controlled drugs and two driving offences.  Breaches of the previous orders were also dealt with.  The primary sentences were a probation order of 12 months and 180 hours and 50 hours consecutive community service orders, making a total of 230 hours of community service.  In the judgment of the Royal Court the Deputy Bailiff emphasised that the court was then giving Hasson a last chance.  If he failed to take this chance to end his drug addiction, and either re-offended or was in breach of the orders, then he would be bound to go to prison.

2.        In early October 2003 his partner had to go into hospital with a serious infection and was in hospital for about a fortnight.  He alone looked after her son during this time.  Doctors' advice was that this episode of infection would be likely to have continuing adverse effects.  This was, understandably, a considerable blow to both of them, and she suffered from depression.  As a result he failed to keep appointments pursuant to the orders already mentioned.

3.        On 29 October 2003 the Jersey Police executed a drugs warrant at their home, and found packages containing brown powder weighing a total of 34.23 grams and containing heroin with a concentration by weight of 7% diamorphine.  He immediately made it clear to the police that his partner was in no way involved with the drugs, for which he alone was responsible.  He pleaded guilty to possession of heroin with intent to supply before the Magistrate's Court on 27 November 2003 and before the Royal Court on 9 January 2004.

4.        He was sentenced by the Superior Number of the Royal Court (the Deputy Bailiff presiding) on 23 February 2004.  The Crown proposed a starting point of 9 years' imprisonment, that is the midpoint in the 20 - 50 grams bracket of 8 to 10 years in the Rimmer [2001] JLR373 guidelines.

5.        It was stated by Mr Hasson, and accepted by the Crown, that he was minding the heroin overnight for a dealer whom he declined to identify.  He had a long-term drug debt of £7,000 to this dealer, and therefore was readily pressured into agreeing to carry out this task of keeping the drugs safe overnight.

6.        Mr Hasson said that he was told by the person who handed the drugs to him that the heroin was useless.  He tried the heroin out by injecting himself with it three times, and found that it gave him little or no reaction.  This was presumably because of the very low percentage of diamorphine in the drugs, only a 7% concentration by weight.  Hasson indicated that he assumed the heroin was in course of being returned to the dealer because of this low concentration. 

7.        A currently serving Police Officer, DC Herd, provided written evidence that the heroin had a street value of between £10,269 and £15,403 and a wholesale value of between £5,134 and £6,846.  This valuation did not take into account the low concentration, and assumed that despite this the heroin had the same value as it would if the concentration was nearer the average.  On behalf of Hasson, Advocate Michael Haines (who appeared in both courts) adduced written evidence from Mr de la Haye, who for nearly 20 years served in the Jersey Police and gave reliable evidence as a drugs expert in many cases between 1984 and July 2002.  Mr de la Haye's evidence was that the 7% percentage meant that this was "extremely poor quality heroin", and expressed the following expert opinion:

"19.  In my opinion, while accepting the values placed on the drugs by the Police due to local case precedent, I believe that due to its quality, the 34.23 grams of heroin in this case would have been virtually unsaleable.

20.  Additionally, on page 22 of the initial Police interview, Hasson infers that the heroin was "going back".  From involvement in covert Police operations, it is within my knowledge and experience that sub-standard heroin, which is unmarketable by local suppliers, can be returned to the source of supply."

8.        Mr Haines also referred to the English case of R v Afzal and Arshad (1991) 13 Cr. App. R (S) 145.  In the Court of Appeal judgment in that case reference was made to the expert evidence of Dr R D Newcombe that:

"10 per cent purity was "the weakest marketable quality", and anything less than 10 per cent would be regarded as a fraudulent sale or rip off."

"experienced users are able to discern the quality of heroin which they are buying not only by the strength of the psychological and physical effects upon ingestion but by its taste, smell and other qualities."

9.        The prosecution responded with a further written statement by DC Herd disagreeing with Mr de la Haye's opinions.

10.      The Royal Court was thus faced with a dispute between the experts.  Both were credible.  So the alternatives open to the Royal Court were either to order a Newton hearing, or to proceed on the basis of the evidence submitted on Hasson's behalf.  The Royal Court did not order a Newton hearing, nor did it indicate that it was adopting the second alternative.  This Court has to proceed on the basis that the evidence of Mr de la Haye is accepted in so far as there is a difference from the evidence of DC Herd.

11.      The Royal Court when considering the question of the relevance of the low level of purity of these drugs referred to this Court's guidance in Rimmer.  In paragraph 28 of the judgment this Court rejected the approach of the English Courts in R v Aranguren (1994) 99 Cr. App. R. 347, holding that in Jersey the actual weight, and not the weight adjusted for the percentage of purity, should be taken as the relevant factor.  In paragraph 30 this Court stated:

"30.  On the other hand, we do not consider that there should be a reduction in the starting point where the degree of purity is below the average.  Usually, neither the carrier (as we have already noted) nor indeed the dealer have any regard to the degree of purity, and it would not be appropriate to make a reduction in such circumstances."

The Royal Court seems to have assumed that this Court was there indicating that the degree of purity, however low, was always to be ignored.  But that was not what this Court actually said.  What this Court said was that usually the defendant (whether courier or dealer) takes no regard of the low degree of purity, which should therefore equally be disregarded by the Court.  But this Court left open what the position might be if the low degree of purity was known to, and taken into account by, the defendant.

12.      In the present case Hasson was aware that the degree of purity was low, as confirmed by his triple use of the heroin, and seems to have assumed that he was minding the heroin in the course of its return to the dealer, rather than its transmission out to the drugs market.  Mr Haines's submission (especially his written submission) was that the Royal Court had wrongly assumed (on the basis of the dicta in Rimmer) that the low degree of purity was irrelevant and had to be ignored, and that the amount of heroin involved had to be treated as if it had been of the average purity, rather than merely 7%.

13.      This Court cannot make any assumption as to the destination of the drugs.  In sentencing, the courts have to act on facts, not surmises.  However, in the judgment of this Court, the result of the Royal Court's assumption as to the irrelevance of the low degree of purity was to place the degree of responsibility of Hasson too high, and therefore to adopt too high a starting point.  In our view, within the relevant Rimmer bracket of 8 to 10 years, what should have been taken as the starting point was 8 years (not 9 years) having regard to the role of Hasson as the minder of the drugs, the quantity of drugs involved, the particularly low percentage of purity, and the evidence of Mr de la Haye.

14.      Turning to mitigation, the primary factor was the early plea of guilty, though in the circumstances in which Hasson had immediately, and most properly, exonerated his partner, the early plea of guilty was virtually inevitable.  There were other relevant mitigating factors, including (i) some allowance for "residual youth"; (ii) his employment record; (iii) his cooperation with the police; (iv) his efforts (though until October 2003 unsuccessful) to extricate himself from his dependency on heroin; (v) his partner's sudden infection and the likely continuing adverse effects; (vi) his emotional immaturity, and his response with alcohol and drugs to his limited ability to cope with the stresses of day-to-day life.  His failure to respond to the "last chance" he was given by the Royal Court in September 2003 could be seen as a partially aggravating factor.

15.      The Royal Court allowed one-third or 3 years from their starting point of 9 years for this mitigation, all of which the Royal Court had well in mind.  In our view, the starting point should have been 8 years (and not 9 years), and the discount for mitigation should be a somewhat higher percentage.  In our judgment a 3 year discount from the 8 year starting point is appropriate in the light of the above mitigating factors, giving a final sentence of 5 years, and not the 6 years determined by the Royal Court.  The reduction in the starting point, coupled with the increased level of discount for mitigation, represents in our view a sufficiently large difference in principle as to justify this Court quashing the sentence imposed by the Royal Court, and substituting the sentence of 5 years' imprisonment.

16.      Finally we wish to pay a tribute to the sensible and careful presentation of their respective submissions by Crown Advocate Conrad Yates on behalf of the Attorney General, and by Advocate Haines on behalf of Mr Hasson.

Authorities.

AG -v- Welsh (3^rd February 2000) Jersey Unreported [2000/21].

Rimmer et al -v- AG [2001] JLR373. CA.

AG -v- Hasson [2003] JRC153.

AG -v- Hasson [2004] JRC036.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp. 66 - 73; 161 - 166.

Harrison -v- AG [2004] JCA046 para 31 to 40.

AG -v- Rahman (10^th September 2002) Jersey Unreported; [2002/165].

AG -v- Harris [2003] JRC068.

AG -v- Mohammad [2004 ]JRC027.

R -v- Afzal and Arshad 13 Cr. App. R (S) 145, CA.

Campbell & Ors -v- AG [1995] JLR136.

Wright -v- AG (12^th July 1999) Jersey Unreported; [1999/125].

R v Aranguren (1994) 99 Cr. App. R. 347