Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - possession - supply - Class B.

[2013]JRC169

Royal Court

(Samedi)

30 August 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Olsen.

The Attorney General

-v-

Nathan Gavin Jeremy L'Enfant

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

21 counts of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Counts 1 - 21).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 22).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Count 23).

Age:  21.

Plea: Guilty.

Details of Offence:

On 1^st September, 2012, a parcel was intercepted by Customs which contained methylethcathinone powder.  It bore the defendant's home address on the label, but another youth's name.  The defendant was interviewed by a customs officer and said that he had not ordered any such drug for 2 years. 

On 4^th December, 2012, a special delivery letter addressed to the defendant was intercepted.  It contained a DVD case which had two foil sachets within, marked "Magic Crystals, strictly not for human consumption".  These were found to contain 10.15 and 10.05 grams of methylethcathinone.  The defendant's home address was searched and a cannabis grinder, electronic scales, empty pill capsules, bong and a small amount of cannabis resin (36mg) was recovered (Count 22). 

Analysis of a laptop computer owned by the defendant showed details of many searches for information on psychoactive products, including Mephedrone and Benzo powder. 

When interviewed he was asked why he had not contacted the Post Office about the seized parcel, despite it costing him £230, he said: "I left it, if it didn't come through the door, I, I'd just take it as a loss, that's it...it's not really something you really ring up and ask about..."  When it was put to him that he knew that the drug was illegal he said: "Um I, in a sense ok fair enough, but at the same time I didn't exactly know in within that package what is illegal, like what's in it that is illegal."

He initially admitted to ordering methylethcathinone twice from a UK website, before saying that he had ordered from them four or five times.  Analysis of his computer, postal records and bank accounts later revealed 21 orders for approximately 297 grams, costing him £3,459.79 over a period of 16 months.  The Jersey value of these drugs would be between £8,900 and £17,800.  Four of the orders were place after he was spoken to by a customs officer in September 2012. 

During a second set of interviews in March 2013 the other importations were put to him and he admitted making the orders (Counts 1-21).  He said his monthly use was around 12 grams and was ordering about 20 grams a month.  He could not account for the other 8 grams but had previously admitted supplying some of the powder to his brother (Count 23). 

Details of Mitigation:

Guilty plea; good character; youth (19 and 20 at time of offending); support of family and employer.

Previous Convictions:

None.

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	12 months' imprisonment, concurrent.
Count 5:	12 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.
Count 7:	12 months' imprisonment, concurrent.
Count 8:	12 months' imprisonment, concurrent.
Count 9:	12 months' imprisonment, concurrent.
Count 10:	12 months' imprisonment, concurrent.
Count 11:	12 months' imprisonment, concurrent.
Count 12:	12 months' imprisonment, concurrent.
Count 13:	12 months' imprisonment, concurrent.
Count 14:	12 months' imprisonment, concurrent.
Count 15:	12 months' imprisonment, concurrent.
Count 16:	12 months' imprisonment, concurrent.
Count 17:	12 months' imprisonment, concurrent.
Count 18:	12 months' imprisonment, concurrent.
Count 19:	12 months' imprisonment, concurrent.
Count 20:	12 months' imprisonment, concurrent.
Count 21:	12 months' imprisonment, concurrent.
Count 22:	1 week's imprisonment, concurrent.
Count 23:	12 months' imprisonment, concurrent.

Total: 12 months' imprisonment. 

Forfeiture and destruction of the drugs and the drugs paraphernalia sought.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order.
Count 2:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 3:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 4:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 5:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 6:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 7:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 8:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 9:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 10:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 11	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 12:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 13:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 14:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 15:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 16:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 17:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 18:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 19:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 20:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 21:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.
Count 22:	No separate penalty.
Count 23:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order, concurrent.

Total: 180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order and Treatment Order. 

Forfeiture and destruction of the drugs and the drugs paraphernalia ordered. 

R. C. P. Pedley, Esq., Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant is here to be sentenced on an Indictment which contains twenty-three counts - twenty-one counts of being concerned in the importation of a controlled Class B drug, and one count of supplying a controlled Class B drug, and one count of possession of a Class B drug.  The possession was of cannabis and the supply of methylethcathinone and pentedrone, as indeed was the case for the importation. 

2.        The Crown has taken the approach that on the case of AG-v-Sanguy [2012] JRC 170A, the Court should fix a 2 year starting point for these drug trafficking offences.  The case of Sanguy was factually similar with the present case, albeit in that case, the Court did in fact impose a sentence of community service and probation.  The Court took the view in that case that it was right to have a starting point of 2 years' imprisonment, applying the principles of Campbell-v-AG [1995] JLR 136.  These principles are applied on the basis that the street value of the drugs was between £6,000-12,000, in the Sanguy case, and the Campbell guidelines showed that in Category C importations of 1-10 kilos of cannabis there was a corresponding street value of £5,600-56,000. 

3.        There are three difficulties with this approach.  The first is that Campbell is a decision of the court that was handed down nearly 20 years ago.  Quantities are not subject to inflation over time as are street values.  We are told by the Crown that a kilo of cannabis today has a street value of £10-15,000, depending on the type of cannabis.  There is a good argument for saying that the street values attributed in those guidelines need to be updated if indeed they are the material part of those guidelines.  We are in some doubt as to whether they really are and indeed, that is the second difficulty.  The first difficulty, as I say, is the change in street values, but in any event it does not appear obvious to us that the Campbell guidelines do take street value as the material part of the Court's assessment.  If one looks at page 147 at line 18 of the Campbell decision the Court of Appeal said this:-

"The Attorney General invited us to lay down the same sentencing approach for Class B drugs as was done for Class A drug cases in Clarkin.  He submitted there should be three bands as set out in tabular form below..."

And the table then shows an amount, an approximate street value and a starting point.

"Mr Harris reminded us that the Class B drugs most commonly abused in Jersey were cannabis and amphetamines.  He suggested that the Attorney General's suggested bands would not necessarily be apt for amphetamines.

We agree with the Attorney General that it would be desirable to adopt the same sentencing approach for all drug offences irrespective of whether the drug involved is in Class A or Class B.  We also agree that in cannabis cases the appropriate starting points in the case of quantities over 30 kg. are a minimum of 10 years' imprisonment and in the case of quantities between 10 and 30 kg. are 6 to 10 years' imprisonment and in the case of quantities between 1 and 10 kg. are 2 to 6 years' imprisonment.  We reiterate, for the avoidance of doubt, that these figures are starting points before any mitigation is taken into account on any ground.  We also reiterate that no distinction is to be drawn between cases involving importation and those involving supplying or possession with intent to supply.  The guidelines set out above apply equally to all cases involving the trafficking of Class B drugs on a commercial basis.  We accept that analysis by the weights described in the bands above will not be appropriate for offences involving amphetamines.  The approximate street values will, however, afford some guidance to the Royal Court in dealing with such offences on a case by case basis."

4.        So it appears to us that the Court of Appeal in Campbell was very much adopting, in the case of cannabis, an approach of fixing a starting point by reference to weight and not by reference to street values.  The expression in relation to street values was that they would provide some guidance in the context of comparing amphetamines and cannabis and thus presumably £10,000 of value of amphetamines measured in tablet form can be compared with £10,000 of value of cannabis measured by weight.  There are other dicta in Campbell which make it plain that street value can be seen as a relevant factor for the Court in assessing the defendant's involvement in drug trafficking which is the critical part of the Court's approach to sentencing. 

5.        The third problem with the approach taken by the Court in Sanguy is that it is not obvious what the damage done to our community is by the importation of these drugs in question in this case, and that damage is an essential ingredient in assessing either the defendant's involvement in drug trafficking or the gravamen of the offence.  It is not obvious that this damage can be assessed by examining street value.  Apart from anything else street values go up and down based on supply and demand, upon risk factors, and other considerations of that kind.  Those variables are not necessarily apt for assessing the seriousness of the offence.  Nonetheless, street values are still regarded as potentially relevant; they are less helpful than weight, one looks at the decision of the Court of Appeal in Rimmer Lusk and Bade-v-AG [2001] JLR 373 where the bands applied to fix a starting point are fixed primarily with regard to the weight of the drugs, although street values can be taken into account "where they are truly relevant." (see paragraph 31 and 33 of the judgment).

6.        Trafficking in Class B drugs nonetheless, is a serious offence.  The legislature has placed a maximum sentence of 14 years' imprisonment for drug trafficking offences.  We absolutely endorse the comments of the Bailiff in the case of Sanguy where he said at paragraph 4:-

"The policy of this Court is well established in relation to the importation/supply of drugs.  It is that a prison sentence will almost invariably follow.  But the Court has made exceptions in respect of Class B drugs where comparatively small amounts are involved and where there is exceptional mitigation."

The caveat though, that we must apply to the Sanguy case, is that whereas the court in that case applied the Campbell guidelines, we do not think it is appropriate to do so here.  We therefore approach the case on the basis that trafficking in Class B drugs is a serious offence and even at less than Campbell quantities, it calls for consideration of a custodial sentence.  In many cases that will be the appropriate sentence to impose. 

7.        In this case, however, we are also required to have regard to the Criminal Justice (Young Offenders)(Jersey) Law 1994 in that the defendant was 20 at the time of some of these offences being committed and he is aged 21 now.  We have taken into account that he has no previous convictions; that of course, by nature of the application of the 1994 Law principles, he has youth on his side although that is about to run out.  He has the support of his family; he has entered a guilty plea; he has a job, which is important in these days and he has good references.  Taking those factors into account we have reached the conclusion, after careful consideration, that a custodial sentence should be avoided. 

8.        Mr L'Enfant, I hope you have been listening carefully to what the Court has just said.  You have committed some serious offences and, as your Counsel has said, the continued use of cannabis while awaiting sentence does not reveal a proper regard for the law and, frankly, you must change that approach because if you do not, things are going to get seriously bad for you.  We are going to impose a sentence of 180 hours' community service on each of Counts 1 to 21 and Count 23 of this Indictment and those will operate concurrently, making a total of 180 hours' community service, with no separate penalty on Count 22.  You should know that the alternative which we would have been considering was 12 months' imprisonment, and if you do not perform your community service you are liable to be brought back to the Court and that question of imposing a custodial sentence will then be reconsidered.  You are also put on probation for a period of 12 months and we attach conditions that you attend the Alcohol and Drug Service for the same period; that you abstain from all illegal non-prescribed drugs, which may be confirmed by random and routine drug tests.  You are to comply with all the treatment goals agreed with the Alcohol and Drug Service and, of course, you are to perform all the courses and requirements of the Probation Service in the context of the Probation Order. 

9.        You are fortunate today and I want you to realise that if you do not comply with these terms, if you start taking drugs over the period and you are caught out, you are liable to be brought back here.  You are being given a chance and you must take it. 

10.      We also order the forfeiture and destruction of the drugs and the cannabis grinder and the bong. 

Authorities

AG-v-Sanguy [2012] JRC 170A.

Campbell-v-AG [1995] JLR 136.

Rimmer Lusk and Bade-v-AG [2001] JLR 373.

Criminal Justice (Young Offenders)(Jersey) Law 1994.