Jersey Unreported Judgments

[2005]JRC045

ROYAL COURT

(Samedi Division)

 

14^th April 2005

 

 

The Attorney General

-v-

David Whelan

William Francis Joseph Byrne

 

Sentencing by the Superior Number of the Royal Court, to which the Defendants were remanded by the Inferior Number on 18^th February, 2005, as follows:

 

David Whelan

 

On guilty pleas: entered on 4^th February 2005 to counts 1, 2 and 3 of the first indictment and on 17^th November 2004 to counts 1 and 2, below, of the second indictment.

 

First Indictment

 

 

2 counts of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978: Count 1: Cocaine; Count 2: MDMA.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 3: Cannabis resin.

 

Second Indictment

1 count of:	Driving whilst disqualified, contrary to Article 9(4) of the Road Traffic (Jersey) Law 1956 (count 1).
1 count of:	Driving uninsured, contrary to Article 2(1) of the Motor Traffic (Jersey) Law 1948 (count 2).

 

Age:     31

 

Details of Offence:

Whelan was approached by a male called Fitzpatrick to store a quantity of drugs.  Whelan agreed and provided the use of a van that he had custody of.  In return Whelan was paid £2,000.

Byrne was approached by Fitzpatrick on 28^th April 2004 to give him a lift to collect some tools.  He was to be paid with £200's worth of cocaine.  Byrne knew that this was dodgy but went along with it anyway.  Byrne drove Fitzpatrick to the van.  When they arrived they saw Whelan.  Whelan opened the van and removed a sports bag that contained the drugs.  He passed this sports bag to Byrne who was sitting in a car.  The police had been carrying out observations and moved in to arrest the men.  Whelan was arrested at the scene.  Byrne drove away with Fitzpatrick.  The Police gave chase and during the course of this chase the bag containing the drugs was thrown from the car.  The Police recovered the bag and later arrested Byrne.  Fitzpatrick was never traced.

The bag contained the following drugs:

(i)             3,977 ecstasy tablets.

(ii)            138.33 grams of cocaine.

Whelan's house was searched and 8.82 grams of cannabis resin was recovered.

Byrne's house was searched and 13.23 grams of cannabis resin was recovered.

Whelan was also found by the Police, on 24^th April 2004, to be driving a Volvo when he was disqualified and did not have a licence.  Within the Volvo, £2,000 was found in cash.  This cash represented the payment to him by Fitzpatrick. 

 

Details of Mitigation:

 

Whelan citied his guilty plea, his employment prospects and the fact that he was committed to improve himself in prison.  He had expressed remorse for his crimes.

 

 

Previous Convictions:

 

Has a total of 11 convictions.  The majority are convictions for dishonesty.  He had committed two drug offences in 1993 for which he was sentenced to a 2 year probation order.

 

Conclusions:

 

 

First Indictment

 

 

Count 1:	7 years' imprisonment (13 years starting point)
Count 2:	7 years' imprisonment.
Count 3:	3 months' imprisonment, all concurrent.

 

Second Indictment

 

 

Count 1:	1 month's imprisonment.
Count 2:	1 month's imprisonment, concurrent, and concurrent with 1st Indictment sentences.

 

 

Sentence and Observations of Court:

 

First Indictment

 

 

Count 1:	6 years' imprisonment.
Count 2:	6 ½ years' imprisonment. (12 years starting point)
Count 3:	3 months' imprisonment, all concurrent.

 

Second Indictment

 

 

Count 1:	1 month's imprisonment.
Count 2:	1 month's imprisonment, concurrent, and concurrent with sentences passed on 1st Indictment.

1 Year's disqualification from driving.

Confiscation Order: £6,770.

When sentencing, the Court observed that where a Defendant has been convicted of being concerned in the supply of under Article 5(c) of the Misuse of Drugs (Jersey) Law 1978, the cases of Rimmer and Valler could provide useful assistance when determining the appropriate starting point.

However Rimmer and Valler did not bind a Court when considering an Article 5(c) sentence because of the multitude of ways in which the offence could be committed.  It was a useful guide, subject to the facts of the particular case.

 

William Francis Joseph Byrne

 

On Guilty pleas, entered on 4^th February, 2005 to counts 4A, 5A, 6, 7, 8 and 9 of the First Indictment, set out below:

 

First Indictment

 

 

2 counts of:	Being knowingly concerned in the supplying of a controlled drug, contrary to Article 5(C) of the Misuse of Drugs (Jersey) Law 1978: Count 4A: Cocaine. Count 5A: MDMA.
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 6: Cannabis resin.
1 count of:	Dangerous driving, contrary to Article 14(1) of the Road Traffic (Jersey) Law 1956 (Count 7).
1 count of:	Driving without a licence, contrary to Article 3(1) of the Road Traffic (Jersey) Law 1956 (Count 8).
1 Count of:	Driving uninsured, contrary to Article 2(1) of the Motor Traffic (Jersey) Law 1948 (Count 9).

[On 18^th February 2005, the Crown accepted not guilty pleas to counts 4 and 5 of the indictment.]

 

Age:     28

 

Details of Offence:

See Whelan above.

 

Details of Mitigation:

Byrne cited his guilty plea, that many of his offences had been committed when he was a young man.  That he had been assessed as suitable for non-custodial sentencing.  That he had made good use of his time in prison.

 

Previous Convictions:

Has a total of 3 convictions in Jersey and 4 convictions in Ireland.

In Ireland he had been convicted of possession of heroin with intent to supply for which he had been sentenced to 4 years' imprisonment.

He had been convicted of possessing a controlled drug in 2000 in Jersey for which he was sentenced to a 1 year probation order.

 

Conclusions:

 

 

Count 4A:	8 years' imprisonment (13 years starting point)
Count 5A:	8 years' imprisonment.
Count 6:	3 months' imprisonment.
Count 7:	1 month's imprisonment.
Count 8:	1 month's imprisonment.
Count 9:	1 month's imprisonment, all concurrent.

 

Sentence and Observations of Court:

 

 

Count 4A:	5 ½ years' imprisonment
Count 5A:	6 years' imprisonment. (10 years starting point)
Count 6:	3 months' imprisonment.
Count 7:	3 month's imprisonment.
Count 8:	1 month's imprisonment.
Count 9:	1 month's imprisonment, all concurrent.

1 Year's disqualification from driving.

Confiscation Order: £1,170.

 

 

 

S.M. Baker, Esq., Crown Advocate.

Advocate C.M. Fogarty for D. Whelan.

Advocate D. Gilbert for the W.F.J. Byrne.

 

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        This case involves a substantial quantity of drugs, namely 3,977 ecstasy tablets, with a street value of some £39,000 and 138 grams of cocaine, with a street value of some £11,000.  The Crown has invited us to sentence on a particular version of facts, being the basis upon which the guilty pleas of the two defendants have been entered and we must therefore record those bases.  So far as Whelan is concerned, it is that he agreed to store the drugs for a man called Fitzpatrick in his van in return for £2,000 in cash.  On the day in question, Whelan had telephoned to ask that the drugs be recovered because his partner, who knew nothing about it, wanted to use the van.  He met Byrne and Fitzpatrick at the site of his van and there he moved the drugs from the back of the van into the car occupied by Byrne and Fitzpatrick.  It is accepted he did not know exactly what quantity of drugs was there, or the nature of them, but he knew they were drugs; in effect, he acted as a minder.  He has pleaded guilty to supplying the two types of drug. 

2.        So far as Byrne is concerned, he states that he was asked by Fitzpatrick on the day in question to take Fitzpatrick to pick up some tools and then drop him off again.  He was, however, told by Fitzpatrick that if he did this he would be given some £200's worth of cocaine.  He realised, therefore, there was something dodgy and, indeed, when he saw the bag he suspected it was drugs.  When the Police closed in, Byrne drove off with Fitzpatrick; he had no driving licence but he and Fitzpatrick made good their escape by car.  It is accepted he would have played no further part in the onward supply of the drugs; he has pleaded guilty to being concerned in the supply of these two types of drugs.

3.        We have to consider, first, a starting point.  Taking Whelan first of all, who was acting as a minder, the quantity of ecstasy tablets puts this at the top of the 2,500 to 4,000 bracket in the case of Bonnar and Noon [2001JLR626], which gives a starting point of 10-13 years.  The next bracket of 4,000 to 5,500 has a starting point of 11-14.  The Crown says it would have taken a starting point of eleven years if the matter had stood alone and we agree with that.  There was also 138 grams of cocaine and there the appropriate starting point, if stood alone, would have been 10 years, being the bottom of the applicable bracket in Rimmer and ors. [2001 JLR 373] and we also agree with that.  The Crown says then you must apply the case of Valler [2002 JLR 383] and increase the starting point to take account of the fact that there are two substantial quantities of drugs.  They would add two years, but we think, having regard to the quantities involved, the right addition is that of one year.  So we take a starting point of twelve years in the case of Whelan which we will apply to the more serious charge, that in relation to the ecstasy.

4.        Dealing then with mitigation, Whelan has pleaded guilty.  He has a number of previous convictions, including two for possession of drugs but these were a long time ago in 1993.  He has a good work record and we have read the references.  We have considered carefully the Social Enquiry Report, what counsel has said to us and all the other mitigation which is available on the papers. 

5.        All in all, we think that the right sentence is as follows:  On count one, six years'; on count two, being the ecstasy charge, six and a half years; count three, three months.  On the second indictment: count one, one month; count two, one month; all of the sentences to be concurrent.  We also order disqualification from driving for one year.  There is, therefore, a total sentence of six and a half years' imprisonment in your case.

6.        We then come to Byrne.  He has pleaded guilty to being concerned in the supply.  As was made clear in the cases of McDonough (28^th September 1994) Jersey Unreported; [1994/193], Antunes [2003]JRC072 and Le Pavoux [2003]JRC075, the Rimmer and Bonnar guidelines are therefore not directly applicable.  But we wish to make it clear that this does not mean that they are not often of assistance.  It all depends on the circumstances.  The reason why they are not directly applicable is that the offence of being concerned in the supply of drugs covers a multitude of different situations.  Some will be very minor, with the result that a sentence well below the Rimmer guidelines will be applicable.  In other cases a sentence above the Rimmer guidelines may be appropriate.  In other cases the application of the Rimmer guidelines will be the proper approach. 

7.        We have to consider in this case what is the appropriate starting point for what Byrne has admitted to doing in this case, namely driving the car to pick up the drugs for a reward of 2 grams of cocaine and then assisting Fitzpatrick to make good his escape when the Police moved in, but in the knowledge that he would not have been further involved with the onward supply.  After considering his rôle and the total amount of the drugs, the correct starting point has led to division in the Court.  Two Jurats think that the correct starting point would be nine years, but three Jurats think that the correct starting point is one of ten years and, therefore, that is the starting point which the Court takes.

8.        In terms of mitigation, there is the guilty plea; he too has a previous record, including four years for a drug trafficking offence in Ireland some years ago.  He is, however, remorseful, he has made great efforts in prison and we have read the Social Enquiry Report and the references and had regard to the mitigation put forward.  All the Jurats are agreed that the correct deduction from either starting point to take account of this mitigation is one of four years. 

9.        Given, therefore, that the majority decision is that there is a starting point of ten years, the total sentence on the more serious offence will be one of six years.  On count 4A, the sentence is five and a half years; on count 5A, six years; on count 6, three months; on count 7, three months - we have increased that, we think that dangerous driving justifies a greater sentence; on count 8, one month; on count 9, one month.  All of these to be concurrent, making a total of six years' imprisonment and we order disqualification from driving for one year.  We order the forfeiture and destruction of the drugs.  We also forfeit the Rover.

Authorities

Bonnar and Noon [2001 JLR 626].

Rimmer and Ors [2001] JLR 373.

Valler. [2002 JLR 303].

AG v. McDonough (28^th September, 1994) Jersey Unreported; [1994/193].

AG v. Antunes and Ors. [2003]JRC072.

AG v. Le Pavoux and Anor. [2003] JRC075.