Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation with intent to supply - possession - Class B - obstructing a police officer.

[2014]JRC158

Royal Court

(Samedi)

22 August 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Clapham and Milner.

The Attorney General

-v-

Marcio Fabio De Freitas

Laurence Sutton

Cher Victoria Saville

Richard Alan Stephen Cousins

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

Marcio Fabio De Freitas

First Indictment

6 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 4, 5, 6, 13, 14 and 15).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 19).

Second Indictment

2 counts of:

Possession of a controlled drug, with intent to supply it to another, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Counts 2 and 4).

Age:  21.

Plea: Guilty.

Details of Offence:

First Indictment:- De Freitas, Sutton and Saville

The defendants were all known to one another.  The importation method was to order the drugs from 'legal high' websites in the UK, and have them delivered to a variety of addresses in Jersey via the postal system.  Sutton was involved in ten importations, the first (Count 1) was intercepted by Customs on 23^rd November, 2012, addressed to Lawrence Sutton, 9 Keith Gardens, La Colomber (sic), St Helier; not his home address.  The customs declaration stated the contents were a DVD worth £15.  Inside was a DVD case which contained a bag of white powder labelled: "Spirit, not for human consumption."  The contents of the bag were analysed and contained 4.78g of methylmethcathinone.  This method of packaging and declaration was typical for all the importations. 

De Freitas was involved in six importations, the first on 8^th January, 2013, (Count 4).  A package was delivered on the postal round which covers Convent Court; the exact address is unrecorded but this was Saville's address at the time.  It was signed for by "MARCIO".  The delivery reference number was found on a laptop recovered from Saville's flat.  Her involvement was to allow her flat to be used as the destination address, and to allow her bank account to be used to pay for the drugs.  Her flat was used as a meeting place, and her laptop and email address used to make the orders, although there was no evidence that she had placed these orders herself. 

On 6^th February, 2013, Customs Officers executed a search warrant at Saville's address.  Present were De Freitas, Dubois, Saville, her brother and another.  De Freitas was in possession of a NatWest bank card in the name of Sutton.  Various items were seized including a set of electronic weighing scales from a kitchen drawer later with traces of cannabis, methylethcathinone and ethylphenidate; a cannabis grinder (which tested positive to cannabis); £1,000 in cash, €180 in cash, a diary, a bong which tested positive for cannabis and the laptop. 

On 17^th April, 2013, police officers attended the home address of De Freitas to arrest him for other offences.  Officers seized six tablets, which were analysed and found to be diazepam tablets, a class C drug. 

Second Indictment, De Freitas and Cousins.

On Friday 21^st February, 2014, a forced entry was made into De Freitas' home address.  A jet ski was located in the rear garden underneath a tarpaulin.  In the water outlet pipe two clear plastic bags were found, containing 104grams of Ethylphenidate which is a Class B controlled drug.  The street value for this amount would be around £6,240. 

The two clear plastic bags containing the Ethylphenidate held a number of smaller plastic bags sized approximately two inches square with what appeared to be one gram 'deals' inside.  A number of similar sized sealable plastic bags were found in De Freitas' bedroom along with a box of Glucose powder and a set of electronic scales.  De Freitas' fingerprints were found on the jet ski bags (Count 2). 

On Thursday 17^th April, 2014, De Freitas and Cousins were observed by the Police walking together through town.  At the time neither were carrying any bags.  They were later seen near the bookmakers in Grands Vaux.  De Freitas was carrying a JD Sports bag, Cousins a Co-Op bag.  A taxi drew up and they both got in to the back, at which point they were arrested. 

The bag De Freitas had been carrying contained 496.48 grams of Ethylphenidate, worth £29,788, inside.  De Freitas was also carrying two mobile phones.  When his home was searched a further three mobile phones and two SIM cards were recovered, together with £1,160 in cash (Count 4). 

The bag taken from Cousins contained 498.96 grams of the same drug, worth £29,937 (Count 6).  He also had a set of electronic scales with white powder residue.  He had a Samsung mobile phone and an iPhone with him, and when the flat where he was staying was searched a further four mobile phones, one SIM card and a quantity of clear zip lock bags was discovered, together with £1,265 in cash. 

Third Indictment, Saville

On 6^th July, 2014, at around 9pm a friend of Saville's went to her flat.  There were a number of other people in her flat at the time.  He changed his clothes in her flat before going out to meet someone outside.  They had arranged to meet and violence had been threatened.  There was a fight which Saville's friend won.  He returned to her flat, changed back into his original clothes and, when the Police knocked on her door, hid underneath her bed.  The Police asked her whether he was there and she said he was not, that she had not seen him.  The Police left the flat but returned a few minutes later, when one officer found him hidden under her bed, behind piles of clothes.  Saville was interviewed, made frank admissions to lying to the Police and expressed her remorse for so doing. 

Details of Mitigation:

Guilty pleas; youth.

Previous Convictions:

He has 27 convictions, the majority of which were for theft and related offences although he also has 6 drug offences recorded between 2010 and 2012, for possession and production of cannabis.  Last sentenced for receiving stolen goods took place in the middle of the commission of offences listed in the First Indictment. 

Conclusions:

But for totality, the Crown would have moved for a sentence of 30 months for Count 4, given that it was the second serious drug offence committed on bail.  As it is, the Crown moves for one of 24 months, to run concurrently with the 18 months for Count 2, but consecutive to the 12 month sentence on the First Indictment.  Total sentence of three years' imprisonment. 

First Indictment

Count 4:	12 months' imprisonment.
Count 5:	12 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.
Count 13:	12 months' imprisonment, concurrent.
Count 14:	12 months' imprisonment, concurrent.
Count 15:	12 months' imprisonment, concurrent.
Count 19:	1 week's imprisonment, concurrent.

Second Indictment

Count 2:	18 months' imprisonment.
Count 4:	24 months' imprisonment, concurrent but consecutive to the First Indictment.

Total: 3 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Confiscation Order to be sought at a later date.

Sentence and Observations of Court:

First Indictment

Count 4:	12 months' imprisonment.
Count 5:	12 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.
Count 13:	12 months' imprisonment, concurrent.
Count 14:	12 months' imprisonment, concurrent.
Count 15:	12 months' imprisonment, concurrent.
Count 19:	1 week's imprisonment, concurrent.

Second Indictment

Count 2:	18 months' imprisonment.
Count 4:	18 months' imprisonment, concurrent but consecutive to the First Indictment.

Total: 2½ years' imprisonment.

Forfeiture and destruction of the drugs ordered.

Confiscation Order to be made at a later date.

Laurence Sutton

First Indictment

10 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, 2, 3, 7, 12, 13, 14, 16, 17 and 18).

Age:  19.

Plea: Guilty.

Details of Offence:

See De Freitas above.

Details of Mitigation:

Guilty pleas; youth; spent the equivalent of 1 year on remand; support of family; has employment. 

Previous Convictions:

Previous motoring and public order offences, he has no drug convictions recorded against him.  In breach of a Probation Order imposed on 15^th January, 2013. 

Conclusions:

First Indictment

Count 1:	120 hours' Community Service Order, equivalent to 6 months' youth detention plus a 12 month Probation Order.
Count 2:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 3:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 7:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 12:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurren.t
Count 13:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurren.t
Count 14:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 16:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 17:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.
Count 18:	120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.

Total: 120 hours' Community Service Order, equivalent to 6 months' youth detention, plus a 12 month Probation Order, concurrent.

Current Order to be discharged.

Forfeiture and destruction of the drugs sought.

Confiscation Order in the nominal sum of £1 sought.

Sentence and Observations of Court:

First Indictment

Count 1:	12 months' Probation Order.
Count 2:	12 months' Probation Order, concurrent.
Count 3:	12 months' Probation Order, concurrent.
Count 7:	12 months' Probation Order, concurrent.
Count 12:	12 months' Probation Order, concurrent.
Count 13:	12 months' Probation Order, concurrent.
Count 14:	12 months' Probation Order, concurrent.
Count 16:	12 months' Probation Order, concurrent.
Count 17:	12 months' Probation Order, concurrent.
Count 18:	12 months' Probation Order, concurrent.

Total: 12 months' Probation Order.

Current Order to be discharged.

Forfeiture and destruction of the drugs ordered.

Confiscation Order in the nominal sum of £1 made.

Cher Victoria Saville

First Indictment

2 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 5 and 6).

Third Indictment

1 count of:

Obstructing a police officer (Count 1).

Age:  21.

Plea: Guilty.

Details of Offence:

See De Freitas above.

Details of Mitigation:

Guilty pleas; youth; subsequently found employment. 

Previous Convictions:

Several convictions, although none are drug related. 

Conclusions:

First Indictment

Count 5:	90 hours' Community Service Order, equivalent to 3 months' imprisonment plus a 12 month Probation Order.
Count 6:	90 hours' Community Service Order, equivalent to 3 months' imprisonment, plus a 12 month Probation Order, concurrent.

Third Indictment

Count 1:

30 hours' Community Service Order, consecutive to the First indictment, plus a 12 month Probation Order.

Total: 120 hours' Community Service Order, equivalent to 6 months' months' imprisonment, together with a 12 month Probation Order.

Forfeiture and destruction of the drugs sought.

Confiscation Order in the sum of £1,000 sought.

Sentence and Observations of Court:

First Indictment

Count 5:	90 hours' Community Service Order, equivalent to 3 months' youth detention plus a 12 month Probation Order.
Count 6:	90 hours' Community Service Order, equivalent to 3 youth detention, plus a 12 month Probation Order, concurrent.

Third Indictment

Count 1:

£200 fine or 2 weeks' youth detention in default.

Total: 90 hours' Community Service Order, equivalent to 3 months' months' imprisonment, together with a 12 month Probation Order plus a £200 fine.

Forfeiture and destruction of the drugs ordered.

Confiscation Order in the sum of £1,000 made.

Richard Alan Stephen Cousins

Second Indictment

1 count of:

Possession of a controlled drug with intent to supply it to another, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 6).

Age:  33.

Plea: Guilty.

Details of Offence:

See De Freitas above.

Details of Mitigation:

Guilty pleas. 

Previous Convictions:

21 recorded convictions, including 9 drug convictions between 1999 and 2012. 

Conclusions:

Second Indictment

Count 6:

24 months' imprisonment.

Total: 24 months' imprisonment.

Forfeiture and destruction of the drugs sought.

Confiscation Order to be sought at a later date.

Sentence and Observations of Court:

Conclusions granted.

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

Advocate L. A. Ingram for De Freitas.

Advocate A. M. Harrison for Sutton.

Advocate D. A. Corbel for Saville.

Advocate L. McClure for Cousins.

JUDGMENT

THE BAILIFF:

1.        All four of you were involved in the importation of Class B drugs.  For the most part they were what is known nowadays as New Psychoactive Substances ("NPS"), sometimes inaccurately referred to as" legal highs".  They are not legal, they are illegal and although for the most part you purchased these drugs through the internet, it is clear from the evidence in the case, such as the use of false names and addresses, that you knew that you were purchasing illegal drugs.  It is really very important that youngsters should be aware that these NPS' are illegal and that reference to legal highs is simply incorrect.  They are potentially very dangerous and it is really very important that even though they are available on the internet, youngsters should realise that if they do import or deal in these drugs, they are going to find themselves facing the risk of a substantial prison sentence. 

2.        De Freitas on the First Indictment you were involved in six importations involving not less than 156 grams with a retail value of £9,300.  Despite being on bail for these offences you reoffended in February 2014 by being found in possession with intent to supply of 100 grams of an NPS, concealed in a jetski.  And despite being questioned about this, on 7^th April you were found in possession with intent to supply of just under half a kilo of Ethylphenidate, another NPS, with a value of just under £30,000. 

3.        We have read your letter explaining how this came to be but nevertheless you showed a complete disregard of the fact that you were already under investigation and charged for other offences.  So the total involved in your case is 856 grams having a street value of approximately £45,000.  You have a poor record with previous offending including drug offences, you were uncooperative at interview, you have a poor work record and you failed to respond to previous Probation Orders.  Although you were 21 at Indictment you were under 21 at the time of offending so we do have regard to Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 but we are quite satisfied that your offending is too serious to be dealt with by way of a non-custodial sentence and you have shown yourself unable or unwilling to respond to non-custodial sentences.

4.        I should add in relation to these NPS's that the Court has only recently had to consider how to sentence in relation to them because they are Class B drugs and they must attract sentences which bear comparison with sentences for other Class B drugs.  The issue is how to compare them.  The first case was AG-v-Sanguy [2012] JRC 170A and there the Court used the retail price as some form of comparator with cannabis.  In the case of AG-v-L'Enfant [2013] JRC 169 the Court indicated that weight was a better comparator.  Advocate Ingram argued that what the Court was saying in L'Enfant was that one should take a direct comparison with the weights in Campbell-v-AG [1995] JLR 136; so for example if you had a kilo of an NPS then you would see what the starting point would be for a kilo of cannabis, which would be 2 years under Campbell, and take tha;t and so if you had less than a kilo you would have a starting point of less than 2 years.  We cannot agree that that is what the Court meant in L'Enfant.  You cannot compare a kilo of a powder drug or of a tablet drug with a kilo of a drug such as cannabis.  But weight is the best means of trying to assess the gravity if what is involved because it indicates the amount of the drug which will be available and therefore how much damage will be done to other youngsters in the community.  So we do agree that one should have regard to weight, although retail price is also a helpful indicator of the nature and scale of the involvement in drug offending, which is what was said in Campbell. 

5.        Now reverting to you De Freitas we therefore see no alternative but to prison in your case having regard to the nature and scale of your involvement.  We agree that we should make a slight reduction, basically to reflect your youth and to reflect the totality of the offending.  So what we are going to do is we are going to reduce the conclusions on Count 4, not necessarily because we think they were wrong but just to take full account of your youth and the totality.  So we are going to grant the conclusions subject to that. 

6.        On all the counts on the First Indictment except Count 19 it is 12 months' imprisonment, on Count 19: 1 week's imprisonment, all those concurrent.  On the Second Indictment Count 2; 18 months' imprisonment, Count 4; 18 months' imprisonment, concurrent with each other but consecutive to the First Indictment, so that makes a total of 2½ years rather than the 3 years moved for by the Crown.

7.        Sutton, you were only involved with the First Indictment but you did import a total of 256 grams of an NPS with a retail value of just over £15,000 by ten postal importations.  You have one previous court appearance for which you were placed on probation.  You are 19 and therefore Article 4 of the Young Offenders Law applies. 

8.        We have had careful regard to all that your advocate has said.  Nevertheless had it not been for the fact that you have already spent the equivalent of a year in youth detention the Court might well have felt it necessary to impose a sentence of youth detention.  But you have in fact already received what might be thought to be the full sentence because we would have thought that 12 months was appropriate in your case.  So you have in fact already served the full punishment that the Court might have imposed.  We think that the right course in your case is to place you on probation for 12 months.

9.        You are sentenced to 12 months' Probation concurrent on each count but we will not impose any community service because that would actually be to give you a greater punishment than if you had not been remanded in youth detention for breach of your bail conditions, so in your case it is 12 months' probation, concurrent on each count.

10.      We come next to Cher Saville.  You were the least involved.  You had two postal importations with a total of just over 28 grams with a retail price of £1,700 or so.  But you were also guilty of obstructing the police by lying to them about the whereabouts of Mr Richomme after a fight.  Nevertheless having regard to everything that your counsel has said we think that we can grant the conclusions of the Crown subject to the alteration asked for. 

11.      In your case it is 90 hours' Community Service on the two counts of the First Indictment which   you face; they are to be concurrent and we say that is the equivalent of 3 months' youth detention and on Count 1 of the Third Indictment we agree with what your advocate has said, namely that a fine would be more appropriate; so we are going to impose a fine of £200 which you will pay at £20 per week as you suggested and we order 2 weeks' imprisonment in default. 

12.      Your advocate raised the question of whether there should also be probation.  We think there should.  We think a Probation Order will be of help to you.  Your advocate suggested that it might be difficult to do that plus the community service plus your employment.  We emphasise that the Probation Service is there to help.  If you really cannot make an appointment because you are having to work or something of that nature, then tell them.  If you ring up and explain why, the chances are they will understand and they will re-fix it.  What you must not do is simply fail to turn up, because if you do that then you will be brought back here.  Nevertheless we impose a Probation Order of 1 year on the two counts on the First Indictment. 

13.      Cousins, you have only got the one offence but of course it is the most serious offence because it involves the half kilo of an NPS with a value of £30,000.  You have a poor record having been involved in the supply of drugs earlier both here and in France where you were concerned with supply and sent to prison.  We have read your letter and we find that encouraging.  We hope that the experiences you have undergone recently, the sad experiences you have undergone recently, and the reconnection of the relationship with your daughter will help and that you will take advantage of your time in prison in the way that you say you will.  But nevertheless we think the Crown's conclusions are correct.

14.      The sentence on the one count in your case is of 2 years' imprisonment.

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

16.      One final matter, I must warn those of you who are doing community service or probation.  This is not an easy option and in particular, if you fail to carry out the community service, if you fail to turn up on time and work hard or if you fail to turn up to probation when told to do so, or of course if you reoffend, then you will be brought back here and if you are then in all the cases the likely outcome is that you may be sent to prison or youth detention.  So it is in your interest to make sure you comply absolutely with the community service and the probation. 

17.      We also discharge the previous Probation Orders. 

Authorities

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

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

AG-v-L'Enfant [2013] JRC 169.

Campbell-v-AG [1995] JLR 136.

AG-v-Fage and Romeril [2014] JRC 114.

AG-v-Crabtree [2013] JRC 196.

AG-v-Moody [2012] JRC 183.