Jersey Unreported Judgments

[2004]JRC162

ROYAL COURT

(Samedi Division)

 

13^th September 2004

 

 

The Attorney General

-v-

Gavin Robert Ferguson

 

Sentencing by the Superior Number of the Royal Court, to which the defendant was remanded by the Inferior Number on 20^th August, 2004, following a guilty plea to:

 

1 count of:	being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law, 1999. Count 1: heroin.
1 count of:	possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978. Count 2: cannabis resin.

 

 

Age:     32.

 

 

Details of Offence:

Accused arrived by sea.  On being stopped and questioned he was seen to be sweating profusely.  On being searched he was seen to swallow something.  He later admitted swallowing a gram of cannabis (these drugs were not recovered and did not form the basis of a separate charge).  A small plastic wrapped package containing heroin (5.37 grams - 44% by weight diamorphine) was recovered from his foreskin (Count 1).  Later that evening his home address was searched under warrant and cannabis resin with a total weight of 14.52 grams was recovered (Count 2).

The accused (a heroin addict undergoing treatment by way of repeat prescription) claimed he had returned to the Island earlier having been informed his fiancée had been subjected to a sexual assault.  He claimed he sometimes bought heroin when his prescribed medicine was used up.  In such circumstances he estimated he would use ¾ of a gram per day.  He said he had bought 6 grams of heroin three days earlier in Surrey and had smoked some.  During interview he declined to name his supplier.  He denied intention to supply (in light of expert police evidence the Crown was prepared to proceed on this basis).

The accused confirmed he was an occasional user of cannabis.  He said the cannabis recovered from his home had been bought from "some bloke in a pub".  He said he could not identify the man or the pub.  He claimed the cannabis was for personal use.

 

Details of Mitigation:

Guilty plea (although considered inevitable).  Expression of remorse.

 

Previous Convictions:

Appalling record comprising 67 offences (principally burglary and theft, violence related offences including assaults on the police, public order offences and motoring offences).  No previous drug related convictions.

 

Conclusions:

 

Count 1:	3 years' imprisonment (5 year starting point)
Count 2:	2 months' imprisonment, consecutive

 

Crown moved conclusions on the basis if Finnigan -v- Attorney General (2004) JRC 007 (i.e., the Rimmer guidelines were of no application in a case where drugs were imported for personal use.

 

Sentence and Observations of Court:

 

Despite the absence of commercial intent, importation of heroin was a serious offence.  The conflicting judgments in Gregory and Conquer had been resolved in Finnigan.  Accordingly, adopting the approach in Gregory (endorsed by Finnigan) the absence of commercial motive was relevant to the gravity of the offence.  Given the small quantity the appropriate starting point was 4 years' imprisonment.  In light of the guilty plea and other mitigating factors a sentence of 2 years' imprisonment on Count 1 was appropriate.  Count 2 should attract a sentence of 2 months' imprisonment.  Applying normal sentencing principles these sentences should run concurrently.  Order for forfeiture and destruction of the drugs (and a nominal confiscation order).

 

 

 

A.J. Belhomme, Esq., Crown Advocate.

Advocate M. Harris for the Defendant.

 

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        Gavin Ferguson has pleaded guilty to the importation of 5 grams of heroin and to the possession of a small quantity of cannabis.  It is accepted by the Crown that both drugs were in his possession for his personal use and that there was no commercial intent to supply either of the drugs.

2.        Ferguson is a heroin dependent man who purchased the heroin in England because, he claims, his supply of a prescribed substitute had run out.  Notwithstanding the absence of commercial intent, the importation of heroin into Jersey is a serious offence.

3.        Ferguson has a very bad record of previous convictions, although none of them was for a drugs offence.  The Probation Officer has recommended that consideration be given to a non-custodial sentence, namely a Probation Order linked to appropriate courses designed to help the defendant address his addiction.  The Court has given careful consideration to this recommendation but has concluded that the importation of heroin, in these circumstances, is an offence which requires, in general, the imposition of a custodial sentence.

4.        The conflicting judgments of the Court of Appeal as to the appropriate starting point in Gregory -v- A.G. [1997] JLR1 and Conquer -v- A.G. (4^th April 2002) Jersey Unreported; [2002/73] were recently resolved by this Court in Finnigan -v- A.G. [2004] JRC077 and we will therefore adopt the approach laid down in the earlier case of Gregory, treating the absence of commercial motive as relevant to the gravity of the offence.

5.        The Crown Advocate has suggested that a starting point, in this case, of 5 years should be adopted.  We think that, having regard to the small quantity of the drug involved, the appropriate starting point is one of 4 years' imprisonment.

6.        Giving very full weight to the guilty plea and to such other mitigation as is available, Ferguson, you are sentenced on Count 1 to 2 years' imprisonment and on Count 2 to 2 months' imprisonment, which will be concurrent.  On ordinary principles we think that a consecutive sentence is not appropriate.  The total sentence to be served is, therefore, one of 2 years' imprisonment and we order the forfeiture and destruction of the drugs.

Authorities

Finnigan -v- A.G. [2004]JRC077.

Gregory -v- A.G. [1997]JLR1.

Rimmer and Ors -v- A.G. [2001]JLR373.

A.G. -v- Pinkowski [2004]JRC002.

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

A.G. -v- de Sousa (2^nd June, 1997) Jersey Unreported; [1997/101].

A.G. -v- Sumner & Ors (22^nd March, 2001) Jersey Unreported; [2001/67].

A.G. -v- Lomas (3^rd May, 2001) Jersey Unreported; [2001/94].

A.G. -v- Buesnel [1996]JLR265.