Jersey Unreported Judgments

[2010]JRC147

ROYAL COURT

(Samedi Division)

13^th August 2010

Before     :

W. J. Bailhache, Q C., Deputy Bailiff, and Jurats Le Cornu and Kerley.

The Attorney General

-v-

Sean Lawrence Victor Cassin

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

1 count of:	Attempted possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).
1 count of:	Assault (Count 4).

Age:  23.

Plea: Guilty.

Details of Offence:

Defendant found in possession of a plastic bag containing 95 tablets. 

In interview he admitted that he had purchased them earlier in the evening whilst on licensed premises and had assumed that he was purchasing 100 Ecstasy tablets for £500.  This was a wholesale price as he was buying in bulk.  Purchase for personal use.  He had however thought that they might have been "legal highs" (Count 1).  Also in possession of 390 milligrams of cannabis (Count 3). 

Once analysed, tablets were found to be BZP which at the time were not classified as an illegal drug.  No evidence of intent to deal therefore not guilty plea to Count 2 accepted. 

Crown took starting point of 7 years' imprisonment under Bonnar.  Crown acknowledged that it was an unusual case in that, but for admissions, possession of BZP was not a criminal offence.    Would not have been charged.  Wrote own Indictment.  

Whilst on bail and intoxicated assaulted another male by pushing male to the chest two handed, knocking him down to the floor.  Minor injuries sustained (Count 4). 

Details of Mitigation:

The Crown.

Acknowledgement of unusual features.  Wrote own Indictment.  Guilty plea.  Fully co-operative.  Had previous offences but not previously received custodial sentence.  Tablets for own personal use also deemed to be mitigating factor.  Four month delay.  Crown's view that despite available mitigation custodial sentence should be imposed to reflect what the defendant had intended/attempted to do. 

Defence

Defence sought a non-custodial sentence of Community Service as recommended by Probation.  Agreed that it was an unusual case.  Wrote own Indictment, guilty plea, fully co-operative.  The Bonnar guidelines did not apply.  It was suggested defendant should have been charged under Article 21 of the Misuse of Drugs (Jersey) Law 1978.  Remorse, delay, personal circumstances.  Had stable relationship and stable employment which would be prejudiced if he received a custodial sentence.  Changed life since offences.  Stopped using drugs, reduced alcohol etc.  Low risk of re-offending. 

Previous Convictions:

7 convictions for a total of 16 offences: grave and criminal assault, possession of an offensive weapon, possessing cannabis x 2, larceny, escaping from lawful custody and public order. 

Conclusions:

Count 1:	18 months' imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	2 weeks' imprisonment, consecutive.

Total:  18 months' and 2 weeks' imprisonment. 

Forfeiture and destruction of drugs sought. 

Crown sought an Exclusion Order from all licensed premises save for those shops that sell alcohol for a period of 12 months commencing from the defendant's release from custody pursuant to Article 2(2) of the Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998.  (The defendant had admitted purchasing the tablets on licensed premises). 

Sentence and Observations of Court:

The defendant was sentenced for 3 Counts on the Indictment, attempted possession of Ecstasy, possession of cannabis and common assault.  The Crown has sought a sentence of imprisonment and an Exclusion Order.  The Court noted that he was 23 years old and he really should know better.  The Court takes a serious view of those who attempt to possess Class A drugs.  However, the Court is not going to impose imprisonment on this occasion.  The Court took account of the mitigation available such as guilty plea, important matters raised in the report, delay and the improvements in his life that he had made since the offending.  The case of AG-v-Bremmer-Hotton and Mazurke was a more serious case of trafficking but both were juveniles. 

The Court concluded that there was no jurisdiction to make an Order under Article 2(2) of the 1998 Law.  The Article specifically referred to Articles 5 and 8 of the Misuse of Drugs (Jersey) Law 1978. 

The defendant had not been charged with an Article 8 offence.  He had been charged with the Common Law attempt.  Article 21(4) of the Misuse of Drugs (Jersey) Law 1978 contained a specific offence for attempts but the law draftsmen had not included that specific Article within the statute.  Therefore no jurisdiction. 

Count 1:	120 hours' Community Service Order, or 6 months' imprisonment in default.
Count 3:	No separate penalty.
Count 4:	£100 fine or 1 week's imprisonment in default, 6 weeks given in which to pay fine.

Total:  120 hours' Community Service Order and £100 fine with 6 weeks in which to pay. 

Forfeiture and destruction of drugs ordered. 

No Exclusion Order made. 

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

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for three Counts on the Indictment; attempted possession of a controlled drug, namely Ecstasy; possession of a small amount of cannabis resin and a common assault committed on a Mr Wright.  The Crown has sought a sentence of imprisonment and an Exclusion Order. 

2.        The Court has noted that you were 23 when you committed this offence and that your record is such that you should have known better, and indeed the Court thinks you did know better at that time.  We take into account that this is not an attempt to commit a drug trafficking offence and so the approach taken by the Court in Bonnar and Noon-v-AG [2001] JLR 626 does not apply, but it was an attempt to possess Class A drugs which is a serious offence and that offence would normally call for a lengthy period of imprisonment.  We are not going to order imprisonment in this case. 

3.        We have taken into account all the mitigation; the delay in bringing the matter to Court; the admissions and co-operation that you made and gave to the police and your guilty plea and have very much taken into account the improvement in your record.  That, we think, is a very important matter because you did have some difficulties early on in your life, the Court understands that, and therefore the improvement is worth a lot and you need to hold to that in the future. 

4.        We have also looked at the case which your counsel produced of AG-v-Bremmer-Hotton and Mazurke [2009] JRC 046.  That in one sense is a more serious case because it was an attempt to commit a trafficking offence and yours is not but in fact both accused there were juveniles and therefore, we think, were entitled to mitigation for that, which is not available to you. 

5.        In the circumstances we are going to order on Count 1 that you do 120 hours' Community Service with 6 months' imprisonment which is the default sentence that would have been imposed had we not been imposing Community Service, on Count 3 there will be no separate penalty, that is for the possession of cannabis, and on Count 4 we fine you £100 or 1 week's imprisonment and we give you 6 weeks in which to pay. 

6.        We also order the forfeiture and destruction of the drugs. 

7.        The Crown has asked also for an Exclusion Order.  The Court determines that there is no jurisdiction to make an Exclusion Order in this case.  Article 2(2) of the Licensed Premises (Exclusion of Certain Persons)(Jersey) Law, 1998 provides that:-

"(2) Where a person is convicted of an offence against Article 5 or 8 of the Misuse of Drugs (Jersey) Law 1978  committed on licensed premises, the court by or before which the person is convicted may, subject to paragraph (3), make an exclusion order prohibiting the person from entering those and any other specified premises". 

You are not charged with an offence under Article 8, you are charged with the common law offence of attempted possession of drugs and, furthermore, Article 21(4) of the Misuse of Drugs (Jersey) Law 1978 contains a provision by which a person who attempts possession of a controlled drug is also guilty of an offence.  So the draughtsman of the exclusion statute, in my view, could have included that.  The fact that Article 21 has not been included in Article 2(2) of the exclusion statute leads to the conclusion that there is no jurisdiction to impose an Exclusion Order where the offence is attempted possession.

8.        The sentence is 120 hours' Community Service in relation to Count 1 and a fine of £100 or 1 week's imprisonment in relation to Count 3. 

Authorities

Bonnar and Noon-v-AG [2001] JLR 626.

AG-v-Bremmer-Hotton and Mazurke [2009] JRC 046.

Licensed Premises (Exclusion of Certain Persons)(Jersey) Law, 1998.

Misuse of Drugs (Jersey) Law 1978.