Jersey Unreported Judgments

[2004]JRC193

ROYAL COURT

(Samedi Division)

 

5^th November, 2004.

 

 

The Attorney General

-v-

Kamal Hussain

 

 

 

2 counts of:

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

 

Breach of a 60 hour Community Service Order, made on 25th June, 2004, in the Magistrates Court, following admitted breach of a previous 12 months' probation order, made on 18th December 2003, in the Magistrates Court.

The 18^th December, 2003, probation order was made following conviction on 1 count of receiving stolen goods and following an admitted breach of a continuation order made on 6^th November, 2003, of an earlier probation order.

The 6^th November, 2003 continuation order was made following an admitted breach of a 12 months' probation order made on 28^th May, 2003 in the Magistrates Court following conviction on 2 counts of possession of drugs and various motoring offences, in relation to which a 6 months' probation order was made.

 

Age:     25.

 

Plea:    Guilty; breach admitted.

 

Details of Offence:

Hussain was arrested for an unrelated matter which subsequently did not result in any charges.  However, whilst in Police custody he was noted to have a plastic wrap in his hand which when removed and subsequently tested was found to contain 477 milligrams of heroin.  This had a street value of between £150 - £225 and a wholesale value of £100.  Hussain was charged and released on bail for an appearance before the Magistrates' Court nine days later but did not appear.  Bail was estreated and his arrest ordered.

Officers attended at a known address for Hussain and as they were approaching they say Hussain walking towards the address.  He was arrested for failing to appear in Court.  When searched he was found two be in possession of a small package which, when examined, contained two separate amounts of heroin being 394 milligrams and 11.65 grams of heroin.  These amounts had respective values of £150 - £225 street value and a wholesale value of £100 for the first amount and a street value of between £3,495 - £5,242 with a wholesale value of between £1,747 and £2,330 for the second.

When interviewed about the various quantities of heroin found in his possession on the two occasions, Hussain answered "no comment" to all pertinent questions.  He did, however, tell the police surgeon who examined him that he had a daily habit of two grams.  Whilst the Crown had reservations, on the evidence available it accepted that all of the heroin found in Hussain's possession was for his personal use.  Hussain did not have any apparent form of employment but he advised the authors of the Court reports that he funded his addiction by low level dealing and stealing.

These offences resulted in Hussain being in breach of a Community Service Order previously imposed by the Magistrates' Court in relation to a variety of offences including riding a motorcycle whilst under the influence of drugs, no insurance, four offences of possession of controlled drugs being cannabis and Diazepam and Temazepam, larceny and receiving stolen goods.  Hussain had only completed five hours of the sixty hour order.  His offending was therefore aggravated by not only the breach of the Magistrates' Court Order but also by the fact that the second offence was committed whilst he was on bail pending his appearance for the first offence.

 

Details of Mitigation:

In the Crown's view Hussain had little available to him by way of substantive mitigation.  He had entered guilty pleas at an early opportunity but such pleas were inevitable given the circumstances of his arrest.  He was still a relatively young man aged 25 but had a bad criminal record which indicated a consistent failure to take advantage of on-custodial sentences previously imposed.  He was assessed at being of high risk of re-offending.  He had not been co-operative with the police.  The reports revealed that he had a long standing heron addition and despite a number of attempts to overcome that addiction, he had always lapsed back into heroin use.

The Defence emphasised the entering of early guilty pleas and the fact that he had been an addict since the age of 15.  He was now drug free having undergone detoxification whilst in prison and was working well with the Prison authorities on various courses to improve his level of education etc.  A letter was placed before the Court from Hussain explaining the circumstances in which the larger quantity of heroin came into his possession.  The Defence suggested an appropriate sentence would be one of 18 months' imprisonment.

 

Previous Convictions:

Hussain had twenty convictions covering a total of 41 offences.  His offending included robbery, grave and criminal assault, offences of dishonesty and seven previous offences for possession of controlled drugs.

 

Conclusions:

 

Count 1:	3 months' imprisonment.
Count 2:	2½ years' imprisonment, concurrent.

 

Breach:  Community Service Order to be discharged; 5 weeks' imprisonment, concurrent on offences dealt with in Magistrates Court on 28^th May and 18^th December, 2003, with 18 months' disqualification from driving.

 

Sentence and Observations of Court:

Conclusions granted.

The Defendant was to be sentenced for two offences of possession of heroin and a number of other offences for which originally he received Probation and then Community Service Orders.  The first count involves a relatively small amount of heroin with a low value whilst the second involved a larger quantity of 11.65 grams with a value of between £3,500 and £5,200. 

The Crown has accepted that this heroin was for personal use.  Hussain has claimed that he has a 2 gram a day habit which he has been funding through acquisitive crimes and low level dealing.  He is therefore to be sentenced for simple possession of approximately 12 grams plus 10 other offences.  He has a bad record with a number of previous offences for possession of drugs.  He has been a drug addict for some 10 years.  In mitigation the Court had regard to the guilty pleas and he has admitted the breach of the Community Service Order.  He still is a relatively young man.  The Court gave anxious consideration as to the appropriate penalty to be imposed upon this young man.  The Court took into account the Crown's concession that the heroin was not deemed for supply but was to meet Hussain's habit.  It took into account Defence Counsel's submissions that Hussain was now drug free and that he was making progress in Prison.  Hussain realistically accepted that a custodial sentence was inevitable and the Court was prepared to give as much credit as possible to him.

 

 

 

J. C. Gollop, Esq., Crown Advocate.

Advocate J.C. Martin for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE BAILIFF:

1.        This defendant is to be sentenced for two offences of possession of heroin and for a number of other offences for which he has been placed on probation and later ordered to do community service.

2.        The first offence involved possession of heroin with a relatively small value.  The second involved a larger quantity, namely, 11.65 grams, the street value of which is in the region of £3,500 - £5,200.  The Crown Advocate has accepted that all these drugs were for Hussain's personal use.  Hussain claims to have a 2 gram a day habit.  The funding of this habit appears to involve the commission of acquisitive crime and perhaps small scale dealing.

3.        The defendant is, however, to be sentenced today for simple possession of 12 grams of heroin.  He is also to be sentenced for 10 other offences on which he was originally placed on probation for 12 months on 28^th May, 2003, but that order was later revoked and he is now in breach of a Community Service Order imposed on 25^th June 2004, for those and another offence.

4.        The defendant has a bad record which includes a number of convictions for drug offences.  He has been a drug addict for about 10 years. 

5.        In mitigation, Hussain has pleaded guilty to the indictment and has admitted the breach of the Community Service Order.  At the age of 25 he is still a relatively young man. 

6.        The Court has given anxious consideration as to what is the appropriate penalty for this young man.  We have taken into account the submissions made by defence counsel and, in particular, the Crown's concession that these drugs were not intended for onward supply, but were to meet Hussain's drug habit.

7.        We have also taken into account, Hussain, the submissions made by your counsel, as to the fact that you have remained drug free in the prison and that you have been, we are told, doing your best to comply with various programmes at the prison.

8.        You have realistically accepted that a custodial penalty is inevitable.  Having given as much weight as we can to the mitigating factors, the sentence of the Court is that on count 1, you will be sentenced to 3 months' imprisonment; on count 2, to 2½ years' imprisonment, concurrent and for the breach of the community service order you will  be sentenced to 5 weeks' imprisonment on each of those charges, concurrently with each other and concurrently with the other sentences making a total of 2½ years imprisonment, and we order the forfeiture and destruction of the drugs.

9.        We hope that when you come out of prison you will maintain your cleanness from drugs and start to live a decent and worthwhile life.

Authorities

A.G. -v- Miah [2003]JRC040.

A.G. -v- Melville [2004]JRC148.

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