Jersey Unreported Judgments

[2008]JRC076

ROYAL COURT

(Samedi Division)

15^th May 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle, Le Breton, Allo, Morgan, Newcombe and Liddiard.

The Attorney General

-v-

Jonathan Michael Hasson

Sarah Jane Hubbard

Sentencing by the Superior Number of the Royal Court, following guilty pleas to:

Jonathan Michael Hasson

1 count of:	Possession of a controlled drug with intent to supply contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).
1 count of:	Possession of a controlled drug with intent to supply contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978.  (Count 2).

Age:  32

Plea: Guilty (Count 1).  Not guilty (Count 2).  Plea accepted, to remain on file.

Details of Offence:

Acting on intelligence the police observed the defendants visiting a property in St John's and attending in the attic of a garage.  They were stopped a short while after having left the property.  Strip searches were conducted at Police Headquarters.  Hubbard was found to be concealing 19.7 grams of heroin internally.  She claimed this was for personal use.  A search of Hubbard's belongings in the attic at the property was undertaken and 311 grams of heroin were located.  Forensic evidence confirmed that the 19.7 grams had been part of the larger packet.  The 19.7 grams had a wholesale value of £4,000 and a street value of £20,000.  The 311 grams had a wholesale value of between £44,000 and £62,000.  The street value of £311,000.  The total amount of heroin seized was 330.7 grams with a street value of £331,000.  No explanations in interview were provided by either defendant as to their involvement with this quantity of heroin.  Immediately prior to Indictment a factual basis for guilty pleas were provided by the defendants.  Hasson's factual basis was that he was acting as a "caretaker" for the large packet of heroin for a friend.  He had felt under pressure to do so.  He did not know the precise nature or quantity or value of the drug but suspected that it was heroin.  He was not being paid for this service.  He had helped himself to the 19.7 grams when he and Hubbard had attended at the property but Hubbard had no knowledge of the larger amount.  He had taken and given the 19.7 grams to Hubbard for their own personal use.  Hubbard's factual basis for her guilty plea was that she had no knowledge of the larger quantity of heroin concealed within her belongings.  If she had done then she would have asked for it to be removed.  She had not seen Hasson remove the 19.7 grams from the larger amount.  He had produced and asked her to carry it back to their home address where the intention was that they would share it.  The factual basis put forward was accepted by the Crown.  In consequence of Hubbard's offending she was in breach of a 2 year suspended sentence imposed by the Royal Court on the 2^nd February, 2006.  (See Judgment [2006] JRC 018).

Details of Mitigation:

The Crown identified the principal mitigation as being his guilty plea.  He was not of good character nor did he have the benefit of youth.  It was further noted that he had previously been sentenced to a term of 5 years for acting in a similar capacity and had only been out of Prison a matter of months before re-offending.  (See Judgment [2004] JRC 036).  The Crown did not consider that the role of a "caretaker" justified a lower "starting point".  The Crown moved for a "starting point" of 13 years.

The defence suggested that a lower "starting point" was justified in the region of 12½ years.  It suggested that a "caretaker" was a lesser role.  He was under pressure to act.  He was not being paid.  The defence counsel emphasised the guilty plea and said that he was remorseful and ashamed of involving Hubbard.  He was using his time in Prison constructively.

Previous Convictions:

He has 14 convictions for a total of 34 offences including 11 offences of dishonesty, 8 drug offences including possession with intent to supply and possession and miscellaneous motoring and public order offences

Conclusions:

Count 1:

Starting point 13 years' imprisonment.  8 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Conclusions granted.

Both defendants gave no explanation of these offences following their arrest.  Prior to Indictment they put forward a basis for their guilty pleas which factual basis the Crown has accepted and we have passed sentence on that basis.  Hasson was asked by a friend to look after some drugs.  He felt under pressure.  He suspected it was heroin but did not know the precise weight or nature of the drug.  We think he must have known that it was heroin given its nature and his previous knowledge in dealings with heroin.  The heroin was hidden in a box in the attic above a garage.  Hasson had not told Hubbard about the heroin.  On the 21^st November, 2007 they had gone to the attic and Hasson had broken off 19.7 grams of heroin for use by him and Hubbard.  It was for their personal consumption.  This was the first that Hubbard knew of the existence of the heroin and she agreed to conceal this quantity internally to take back to their home.  He told her that there was only a little left.  In fact there were 311 grams left.  The defendants had been under observations and were arrested on the way home.  Hasson was a "caretaker" for 330 grams of Heroin with a street value of £331,000.  The applicable "starting point" under the Rimmer Guidelines is between 11 and 14 years for amounts of 250 to 400 grams.  The defence have calculated that mathematically the "starting point" should be in the region of 12½ years.  The Court has had regard to the nature of the involvement.  The Court has repeatedly said that those who undertake the role of "caretaker" play an important role.  Hasson felt confident in taking 19.7 grams for himself.  The Crown thought that 13 years was the correct "starting point".  In mitigation it noted his guilty plea for which he was entitled to the full one third deduction.  He has a poor record and previous served a sentence of 5 years' imprisonment for which he was released in March, 2007.  He was employed upon his release and is making good use of his time in prison.  He has expressed remorse.  The Court considers that the Crown has given sufficient allowance for all of those matters.

Sarah Jane Hubbard

2 counts of:	Possession of a controlled drug with intent to supply contrary to Article 8 (2) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 1 and 3).
2 counts of:	Possession of a controlled drug with intent to supply contrary to Article 8 (2) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 2 and 4).

Age:  33

Plea: Guilty (Counts 2 and 3).  Not guilty (Counts 1 and 4).  Plea accepted, to remain on file.

Details of Offence:

See Hasson above.

Details of Mitigation:

The Crown moved for a 9 year "starting point" in relation to her possession with intent to supply the 19.7 grams.  Her guilty plea to the possession of the 311 grams was "technical" as it was in her belongings and she relied upon Hasson who had told her that there was "a little left".  She had no knowledge that there was the larger quantity.  She had the benefit of a guilty plea but not the full one third reduction given the discovery of the heroin internally concealed by her.  She did not have the benefit of being a young offender nor good character.  The Crown had regard to the totality principle in asking for an 18 month consecutive sentence for the activated suspended sentence.

The defence contended that she was remorseful and relied upon letters and character references provided.  She was using her time in Prison constructively.  A lower "starting point" was suggested by the defence.  A "starting point" of 8 years was suggested.  No submissions were made in relation to the activation of the suspended sentence.

Previous Convictions:

She had 2 convictions for 2 drug offences for possession and being concerned in the supplying or offering to supply a controlled drug.

Conclusions:

Count 2:	Starting point 9 years' imprisonment.  6 years' imprisonment.
Count 3:	6 years' imprisonment, concurrent.

Suspended sentence of 2 years imposed by Royal Court on 2^nd February, 2006, activated but reduced to 18 months, consecutive to Counts 2 and 3.

Total: 7½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 2:	4½ years' imprisonment.
Count 3:	4½ years' imprisonment, concurrent.

She had pleaded guilty to possession with intent to supply the 19.7 grams.  Also technical possession of the 311 grams.  Highly unusual and somewhat technical circumstances.  The supply of the 19.7 grams was that she received it from Hasson so that she could take it back to their home where they would then use it together.  The supply was, therefore, back to the person who had supplied it to her.  The possession of the 311 grams was for a matter of minutes.  She had no idea of that quantity being hidden in her belongings.  In these highly unusual circumstances the Court's view was that the correct "starting point" was one of 7 years.  In mitigation she had a guilty plea, was remorseful and was using her time constructively in Prison.

In relation to the suspended sentence that had been imposed for a similar offence.  It warranted a sentence of 2 years' imprisonment but it had been suspended.  The Crown had only asked for 18 months to be activated.  The Court did not agree.  In the Court's view the Crown should have moved for the full 2 year sentence.  However, as counsel was not asked to address this point the Court will leave it at 18 months' consecutive although the Court would normally expect the full 2 year sentence to be imposed.

Total: 6 years' imprisonment.

The Court ordered the forfeiture and destructions of the drugs.

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

Advocate J. S. Dickinson for Hasson.

Advocate D. Gilbert for Hubbard.

JUDGMENT

THE DEPUTY BAILIFF:

1.        When interviewed following their arrest both these defendants gave no real explanation of the circumstances in which the offences came to be committed.  Shortly before indictment their advocates came forward with the basis upon which they were going to plead guilty.  The Crown has accepted that that is the basis upon which we should sentence and accordingly that is the basis upon which we proceed. 

2.        In summary that version was that Hasson was asked by a friend to look after some drugs.  He felt under pressure to agree.  He suspected it would be heroin but he did not know.  Nor did he know the amount that would be involved, but we think it likely that once he took possession of the package he must have had a good idea of the rough amount, given his knowledge of heroin through his long heroin habit.  He hid it in a box belonging to his partner Hubbard which was stored in a loft at the garage of some friends of her parents.

3.        The fact that the heroin was there was not at that stage known to Hubbard.  On 21^st November they went to the loft, Hasson broke off some 19 grams of heroin from the main package for use by him and Hubbard, in other words for their personal consumption.  This was the first that Hubbard knew of the existence of heroin.  She agreed to secrete the 19 grams internally for the purposes of the trip back to their house.  She asked Hasson if there were was more heroin and he replied 'there was a little left'.  In fact there were some 311 grams left.

4.        The defendants were under observation by the police and were arrested on their way home.  It follows in the case of Hasson that the agreed factual basis is that he was the caretaker of some 330 grams of heroin with a street value of some £330,000.  The applicable starting point bracket in the case of Rimmer is 11 to 14 years for 250 - 400 grams.  As Mr Dickinson has pointed out, this means that, purely mathematically, a starting point of a little over 12½ years would be called for.  But the Court also has to have regard to the nature of the defendant's involvement in deciding where in the appropriate bracket the starting point should be taken.  Mr Dickinson argues that as a caretaker he is less involved than someone such as an organiser, or proprietor, or wholesale dealer and that, therefore, a starting point of 12½ years should be taken rather than 13 years which the Crown has suggested.

5.        However, the Court has repeatedly said that the role of caretaker is an important cog in the machinery of distribution of controlled drugs.  In this case Hasson was entrusted with a very substantial quantity of heroin for some time.  He also apparently felt confident enough to take 19 grams with a street value of some £19,000 for himself and his partner without fear of retribution.  In all the circumstances we think that the Crown's starting point of 13 years is the correct one.

6.        In mitigation Hasson has pleaded guilty and he is entitled to a full one-third discount in that respect.  However, he has a poor record including a previous offence of possession with intent to supply for which he was sentenced to 5 years and was only released in March 2007, and therefore he has no mitigation available in that respect.  However, following his release he was employed and since his arrest he has clearly made constructive use of his time in prison, and is remorseful for what he has done.  We have also had regard to the other mitigating factors pointed out by Advocate Dickinson.  However, in our view the Crown has made enough allowance for all the mitigation. 

7.        The sentence in your case is one of 8 years' imprisonment on the one count that you face, and we order the forfeiture and destruction of the drugs.

8.        We turn now to Hubbard.  She is before us for possession with intent to supply 19 grams of heroin and possession of some 311 grams.  However, the circumstances of those two offences are really highly unusual and somewhat technical.  As far as the possession with intent to supply of the 19 grams is concerned this involved her receiving the 19 grams from her partner Hasson, who gave it to her in order that she could take it back with him to their home where they would then jointly use it.  The supply was therefore back to the person who had given it to her and the ultimate use was for their personal use; this on the version of events agreed by the Crown.

9.        As to the possession of the 311 grams this was only for a matter of minutes on the version agreed by the Crown.  Until then she had no idea of the existence of the heroin and the possession arises presumably out of the fact that it was in her belongings and she therefore had control of it for the period from once she knew about it until she was arrested.

10.      The Crown has suggested a starting point of 9 years.  Advocate Gilbert has suggested a starting point of 8 years.  We have to say given the highly unusual circumstances we think the correct starting point is one of 7 years.

11.      Turning to mitigation there is again the guilty plea for which proper discount is available.  She too has previous drug offences including one of possession with intent to supply for which she was given a suspended sentence and we will revert to that in a moment.  She too is remorseful and is using her time constructively in prison.  She is determined to overcome her drug habit and we have considered the mitigation put forward by Advocate Gilbert.

12.      In all the circumstances we think the correct sentence for the two charges which Hubbard faces is one of 4½ years' imprisonment, concurrent on each count. 

13.      There is then the question of the suspended sentence.  This was for a similar offence, possession with intent to supply, for which you were sentenced to 2 years, suspended for 2 years in February, 2006.  The Crown has asked for only 18 months of that 2 year sentence to be activated.  We have to say that we do not agree with that.  A suspended sentence is an opportunity given to a defendant.  It is a case where a sentence of imprisonment is merited but exceptionally the Court can suspend it.  However, the person concerned knows that if he or she re-offends he or she will not only have to serve the sentence for the new offences but he or she will also have to serve the suspended sentence.  That is the whole point of it.  Of course, the Court always has to have regard to the totality principle but that has to be considered against the background of the fact that one of the sentences is an activated suspended sentence which, as we have said, should normally be activated in full consistent with the underlying principle. 

14.      In this case we think the Crown should have moved for 2 years to be imposed by way of the suspended sentence, which would be consecutive to the sentences on the other charges.  However the Crown did not ask for two years, it only asked for 18 months and the Court did not raise the matter with counsel during the course of her address.  In the unusual circumstances of this case we will leave it at 18 months, but we point out that that is merely because of the way that this case has been presented and developed.  We would normally expect the two years to have been imposed.  So that is 18 months' imprisonment, consecutive, making a total of 6 years' imprisonment.

15.      We order the forfeiture and destruction of the drugs.

Authorities

Rimmer -v Attorney General 2001 JLR 373.