Jersey Unreported Judgments

[2009]JRC115

ROYAL COURT

(Samedi Division)

8^th June 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Clapham, King, Morgan, Newcombe, Liddiard and Fisher.

The Attorney General

-v-

Gerard Lee Fry

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 1^st June, 2009, following guilty pleas to the following charges:

First indictment

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).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Count 5).

Second Indictment

1 count of:

Driving a motor vehicle on a road or public place with an alcohol concentration above the prescribed limit, contrary to Article 28(1) of the Road Traffic (Jersey) Law 1956, as amended.  (Count 1).

Age:  37.

Plea: Guilty.

Details of Offence:

First Indictment

On Saturday 14^th June, 2009, at approximately 11.30pm Police Officers attended the Boat House Restaurant in St Aubin following receipt of a disturbance.  Following indications from members of the public, Police Officers followed Fry onto a bus parked outside St Brelade's Parish Hall.  The bus was heading for the "Watersplash" Nightclub in St Ouen.  Fry was seen to drop a clear plastic bag containing tablets plus some pieces of paper onto the ground behind him.    These items were retrieved.  A search of Fry found £732.23 in cash and a mobile telephone.

Fry was arrested and cautioned on suspicion of the possession of illegal drugs and being disorderly on licensed premises and subsequently detained at Police Headquarters overnight.

A search of Fry's home address located a numerous lumps of brown resin in the kitchen and bedroom and an amount of cash.  A subsequent search of Fry's work van produced £1,000 cash and a small lump of brown resin.

A review of the mobile telephone seized from Fry identified several text messages related to the supply of ecstasy and cannabis.

Fry was interviewed three times under caution and he admitted possession of 16 ecstasy tablets, having bought them earlier, cannabis and cocaine.  He admitted to being a recreational user of cannabis and ecstasy, and a regular user of cocaine.  He denied intending to supply the ecstasy and cannabis, stating it was all for personal use.

Subsequent forensic analysis confirmed that:

1.     the plastic bag dropped by Fry immediately prior to arrest contained 16 ecstasy tablets with a street value of £160;

2.     a total weight of 310.37 grams of cannabis resin with a street value of £1,710 had been found;

3.     the plastic bag found at Fry's property contained 30 mg of cocaine.

Fry eventually pleaded guilty, following a Plea and Directions Hearing, on the basis that the 16 ecstasy tablets were for social supply to his friends at the Watersplash later that evening and accepting he intended to supply the cannabis on a commercial basis.

Second Indictment

On 2nd May, 2009, at about 0255 hours, whilst on bail, Fry failed a roadside breath test, of the two breath samples subsequently given, the lowest being 52 mgs.

Details of Mitigation:

Exemplary references, good work record, assessed as moderate risk of re-offending.  Treated as being of good character.  Actively taken steps to deal with addiction.

Previous Convictions:

None.

Conclusions:

First Indictment

Count 2:	3 years' imprisonment.
Count 4:	9 months' imprisonment, concurrent.
Count 5:	2 weeks' imprisonment, concurrent.

Second indictment

Count 1

15 months' disqualification from driving.

Total:  3 years' imprisonment and 15 months' disqualification from driving.

Forfeiture and destruction of drugs sought.

Confiscation order sought in the sum of £4205.67

Sentence and Observations of Court:

Guilty pleas entered at late stage after Plea and Directions Hearing.  However, on exceptional facts, Court chose to impose the maximum Community service Order as a direct alternative to imprisonment.  Defendant approached Alcohol and Drugs Service for help prior to being charged or any contact with legal representatives in an attempt to change life.  Since then clearly taken big steps in dealing with his drug dependency.  Excellent references from long standing employer and family.

First indictment

Count 2:	456 hours' Community Service Order and 2 year Probation Order.
Count 4:	150 hours' Community Service Order and 2 year Probation Order, concurrent.
Count 5:	40 hours' Community Service Order and 2 year Probation Order, concurrent.

Second Indictment

Count 1

£500 fine (with 14 weeks to pay) or 2 weeks' imprisonment in default and 15 months' disqualification from driving to run from 15 May 2009 with requirement that driving test be re-taken on expiry.

Total:  456 hours' community service order with 2 year probation order and £500 fine (with 14 weeks to pay) or 2 weeks' imprisonment in default, and 15 months' disqualification from driving from 5^th May 2009 and until test passed.

Forfeiture and destruction of drugs ordered.

Confiscation order in the sum of £4205.67 ordered.

B. H. Lacey, Crown Advocate.

Advocate D. M. Cadin for the accused.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to possession of 16 ecstasy tablets with a street value of £160 with intent to supply, at cost, amongst his social set of friends.  He was in possession of 310 grams of cannabis resin with a street value of £1,710 with intent to supply on a commercial basis and possession of a small quantity of cocaine with no street value.  He has also pleaded guilty to driving with an alcohol concentration above the prescribed limit. 

2.        The defendant admitted to being a recreational user of cannabis and ecstasy and a heavy user of cocaine.  He did not co-operate with the Police in interview and guilty pleas were not entered on an acceptable basis until a relatively late stage in the Court proceedings, i.e. after arraignment and a pre-trial directions hearing.  The sum of £4,661.23 in cash was seized from him.

3.        Applying Bonnar-v-AG [2001] JLR 626 the Crown move for a starting point of 7 years for the ecstasy count (count 2) reduced to 3 years to take into account all available mitigation.  The quantity of cannabis is below the lowest bracket in Campbell-v-AG [1995] JLR 136 and in light of AG-v-Channing [2004] JRC 188 which involved cannabis of a similar amount, the Crown seeks a concurrent sentence of 12 months' imprisonment (count 4).  The Crown seeks 2 weeks' imprisonment, concurrent in relation to count 5 and no additional penalty for the driving offence other than a 15 month disqualification.

4.        The defendant has had a good upbringing.  He has good accommodation, stable relationships and a supporting employer.  Yet he has jeopardised all of this through substance misuse. 

5.        The Probation Department have recommended an 18 month probation order and a lengthy period of community service.  They point out that whilst the defendant has previous convictions for drugs offences, none involve supply and it is his first appearance before the Royal Court.

6.        Mr Cadin concedes that there can be no criticism of the conclusions of the Crown but he submits that there is an exceptional factor here which we should take into account and that is that immediately after your arrest and before your appearance before the Magistrate's Court and before legal advice, you attended voluntarily before the Alcohol and Drugs Service and you have turned your life round by becoming drugs-free; that has been confirmed to us by the Alcohol and Drugs Service who have subjected you to regular testing.

7.        After much thought and consideration, we agree that this is an exceptional factor and something we should encourage.  Furthermore, we note you have the loyal support of your long-standing employer who has provided a very good reference.  We accept that your involvement in the drugs trade was caused by your own habit and that we can, exceptionally, on the particular facts of this case and taking into account all the mitigation before us, consider the direct alternative to imprisonment, namely community service.  Mr Cadin rightly points out that community service is not a soft option.  It is work that has to be properly done over a considerable period of time, in the knowledge that any breach will render you liable to be brought back before this Court where you will face a prison sentence, potentially with no credit for what you may have done in the interim.  It constitutes a genuine and valuable contribution to the community for the offences that you have committed.  However, to mark the seriousness of the offences which you have pleaded guilty to, you will be sentenced to a lengthy period of community service.

8.        You will therefore be sentenced as follows; on count 2; 456 hours community service which is the equivalent of 3 years' imprisonment, you will also be placed on probation for 2 years subject to the usual conditions that you must do whatever the probation office direct you to do, attending courses and programmes as they shall direct, but in particular, on condition firstly that you will remain free of all illegal substances for the duration of that probation order.  Secondly, that you will submit to random testing for illegal drugs by the Alcohol and Drug Service.  On count 4; you will be sentenced to 150 hours' community service which is the equivalent to 9 months' imprisonment and you will also serve a probation period of 2 years on the same terms that I have already gone through, concurrent.  On count 5; you will be sentenced to 40 hours' community service which is the equivalent of 2 weeks' imprisonment and again, a sentence to a 2 year probation period on the same conditions.  All of the community service must be completed within 24 months.  On the Second Indictment you will be fined £500 or 2 weeks' imprisonment in default and you have 14 weeks in which to pay that fine.  You will be disqualified from driving for 15 months from the 15^th May, 2009, and from the end of that period until you have passed the prescribed test.  Thus in total you are sentenced to 456 hours' community service which is the equivalent of 3 years' imprisonment, to probation for 2 years on the conditions which I have just been through, a fine of £500 and to a disqualification of 15 months from the 15^th May, 2009.

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

10.      Mr Fry, we hope that you understand the exceptional nature of the order that has been made today.  It is not an easy option, you have got 2 years' of community service, a very substantial number of hours which you have to comply with and complete.  If you do not, you will be back before us where you will undoubtedly be sent to prison.

11.      Costs are refused.

Authorities

Bonnar-v-AG [2001] JLR 626.

Campbell-v-AG [1995] JLR 136.

AG-v-Channing [2004] JRC 188.

AG-v-Doublet [2003] JRC 205.

AG-v-Holley [2003] JRC 063.

Valler-v-AG [2002] JLR 383.