Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession - importation - Class A and C - being disorderly on licensed premises.

[2014]JRC173

Royal Court

(Samedi)

15 September 2014

The Attorney General

-v-

Stuart George Whitcombe

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 11^th July, 2014, following guilty pleas to the following charges:

Age:  38.

Plea: Guilty.

Details of Offence:

Counts 1-3 relate to an incident at the Five Oaks Public House on 19^th March, 2014.  The defendant caused a disturbance in the pub at closing time, he was shouting and became agitated.  Although there was no physical violence the Assistant Bar Manager felt threatened.  The defendant was arrested and cautioned and when searched prior to transportation, a white plastic container of tablets was found and some additional tablets were also found in his trouser pocket.  A search of his clothing at Police Headquarters led to further tablets being seized.  In total 6 MDMA tablets and 47 Diazepam tablets were seized. 

The defendant's house was searched on 20^th March, 2014; cash, weighing scales and 760 Diazepam tablets were seized from within a cereal packet.  A bag of 89 MDMA tablets was also seized from a bedside cabinet.  

During interview under caution the defendant admitted to importing the drugs via the internet, however he refused to provide the necessary access codes to the Police to enable forensic examination of his personal computers and phones.  The importation of the drugs gave rise to Counts 8 and 9.  The total estimated street value of the drugs would be between £2,707 and £3,989.  

The Crown accepted that the drugs were imported for personal use.  

Details of Mitigation:

The Crown

Guilty pleas and admissions at interview, however Whitcombe was caught red-handed, therefore the guilty plea was of limited value.  Furthermore it was noted that the defendant did not assist the police with their further enquiries by withholding passwords.  Whitcombe has a limited record, with historic convictions for unrelated offences. 

He is assessed as being at a high risk of reoffending and a low risk of harm to general public.  He has an underlying problem of alcohol and drug abuse and depression, however he is willing to address such issues. 

The Defence

References in support provided.  Very limited previous historic convictions and therefore of good character.  Suffered from depression caused by difficult personal circumstances, and is engaging with counsellors in custody.  Accepted no alternative other than custody. 

Previous Convictions:

The defendant has one conviction for two offences for theft and kindred offences. 

Conclusions:

Total: 5 years' imprisonment.  

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Total: 4 years' imprisonment. 

Forfeiture and destruction of drugs ordered. 

S. M. Baker, Esq.,Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for five offences of which the most serious are the offences of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs.  The defendant has admitted importing 95 MDMA, that's ecstasy, tablets, a Class A drug and 807 diazepam tablets, a Class C drug.  The total combined street value of these drugs would be between £2,707 and £3,989. 

2.        With a degree of hesitation the prosecution have accepted the defendant's assertion that these drugs were imported for his personal use.  As made clear in AG v MacKenzie and Richards [2011] JRC 173A this is relevant to mitigation, not to the starting point which is governed by the guideline case of Bonnar and Noon v AG [2001/212] which for this quantity of ecstasy tablets indicates a starting point of 7 years which is at the bottom of the Bonnar range.  The prosecution do not seek a Valler uplift in relation to the Class C drugs because the drugs were to be for personal use and move for an overall sentence of 5 years' imprisonment. 

3.        Not that long ago the defendant was married, living in a 4 bedroom house with a swimming pool, a job and a car.  His marriage ended, he was made redundant from December 2009 and has remained unemployed since then.  He began to suffer from depression and became dependant on valium and ecstasy, which he said he purchased through the internet, although he has declined to inform the police which web sites he used or to provide them with his password to his computer and mobile telephones. 

4.        Ruth Emsley, a Chartered Psychologist, has diagnosed the defendant as currently suffering from moderate depression.  She has also diagnosed the presence of a depressive clinical personality pattern, anxiety and dysthymia clinical syndromes which she explains in her report.  The defendant has previous convictions but some 15 years ago and none for drugs and we agree with Advocate Fogarty that we should treat him as a first offender.  He has however been assessed at a high risk of general re-conviction reflecting his previous convictions, substance misuse problems and mental health issues around depression and anxiety.  We are told that this will reduce as he addresses these issues, which we understand he is doing.  He is not assessed as being a risk to the public. 

5.        In terms of mitigation the defendant has pleaded guilty and he was co-operative with the police in terms of the admissions that he has made but he did not facilitate their access to his computer and mobile phone which is of concern to us.  His co-operation was therefore limited.  We have considered his letter carefully and the other references that have been put before us and we have taken note that the defendant was suffering from a significant depressive illness at the material time. 

6.        As the Superior Number stated in MacKenzie at paragraph 45:

"The gravamen of the offence of importation is that it results in the increase in the volume of dangerous drugs circulating in the country which, as described by the Court of Appeal in Gregory is itself an evil.  If the drugs are not in the country, they cannot be consumed, in whatever fashion.  Furthermore, applying the test in Campbell, Rimmer and Bonnar, it is perfectly possible for someone who is importing the drugs for personal use nonetheless to be extremely close to the main source of supply.  Whether the defendant is close to the main source of supply may sometimes be a matter which the Crown are not able to establish but in theory there is no reason why it could not be established in some cases.  Accordingly, the involvement in drug trafficking can be assessed regardless of the purpose to which the drugs will be put once they have been imported."

7.        However as the Superior Number also stated there is obviously a considerable difference in terms of criminality between those who import drugs for their personal use and those who import drugs for commercial purposes and in our view the sentence sought by the Crown does not adequately reflect that difference.  We are therefore going to reduce the conclusions sought by the Crown.

8.        Accordingly you are sentenced as follows:-  Count 1 - 1 week's imprisonment, Count 2 - 12 months' imprisonment, Count 3 - 6 months' imprisonment, Count 8 - 4 years' imprisonment, Count 9 - 18 months imprisonment, all of those sentences to be concurrent with each other which makes a total sentence of 4 years' imprisonment.  We also order the forfeiture and destruction of the drugs.

Authorities

AG v MacKenzie and Richards [2011] JRC 173A.

Bonnar and Noon v AG [2001/212].