Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - possession with intent to supply - Class B.

[2014]JRC229

Royal Court

(Samedi)

21 November 2014

The Attorney General

-v-

Mark Benjamin Blackburn

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

Age:  20.

Plea: Guilty.

Details of Offence:

Customs and Immigration Officers intercepted a package at Postal Headquarters addressed to the defendant at his home address.  It was found to contain 249.51 grams of 5F-AKB-48, a Class B controlled drug, more generally known as synthetic cannabis (a new psychoactive substance "NPS"), with an estimated street value of £5,000. 

A subsequent search was carried out at the defendant's home address.  Various quantities of herbal matter were found in various parts of the defendant's bedroom and when analysed, each quantity was found to comprise a mixture of STS-135 and 5F-AKB-48, both of which are also Class B drugs known as synthetic cannabis.  Numerous other plastic and paper wrappings and drugs paraphernalia, including four bongs, a set of electronic scales and two smoking pipes were seized, together with three mobile phones, an I-Pad, a laptop computer and £135 in cash. 

The i-Pad download showed evidence of the supply and purchase of "herbal matter" and "legal" over the previous months and it was clear from the messages that the defendant had been a supplier of synthetic cannabis within the island. 

The defendant stated in interview that he thought that synthetic cannabis was a legal alternative to cannabis and admitted ordering the package.  He also admitted supplying the drugs to a group of friends.  After his interview the defendant made a written statement admitting that he had purchased an ounce of synthetic cannabis from a friend. He had intended to supply this on to others.  

Details of Mitigation:

Guilty pleas at the earliest opportunity and cooperation; youth, subject to Criminal Justice (Young Offenders)(Jersey) Law, 1994.  Previous good character (although the Crown contended that this was tempered by his admissions to the Alcohol and Drug Service). 

Previous Convictions:

None. 

Conclusions:

Total: 12 months' youth detention.

Forfeiture and destruction of drugs sought.

Confiscation Order in the sum of £135 sought.

Sentence and Observations of Court:

These were serious drug trafficking offences and custody would normally be the result.  The effect of these drugs was not yet known and the Court wanted the defendant to be aware of how close he had come to a custodial sentence.  However he was a young man who had done something stupid and there was nothing to suggest that he was likely to make a significant profit or pose a risk to the public. 

Total: 180 hours' Community Service Order, equivalent to 12 months' youth detention, plus a 12 month Probation Order and a 12 month Treatment Order.

Forfeiture and destruction of drugs ordered.

Confiscation Order in the sum of £135 made.

C. M. M. Yates, Esq., Crown Advocate.

Advocate P. G. Nicholls for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment containing two counts, one of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs, in this case synthetic cannabis, and the second being in possession of that same drug with intent to supply.  These are serious drug trafficking offences.  You, no doubt, have been told that for trafficking in Class B drugs, which is what these are, there is a maximum sentence of 14 years' imprisonment and the maximum sentence does indicate quite how serious these offences are. 

2.        There is one issue that I am going to raise immediately and that is the complaint that has been made by your counsel, Advocate Nicholls, about the proposition from the Crown that the Court can take into account statements in the background reports or statements in the Drug and Alcohol report to Dr Gafoor that you have been engaged in this activity for some time.  There is a public policy in encouraging frankness between the defendant and those who make social enquiry reports, or physcholgical reports, or drug and alcohol reports, and without that frankness those making the reports will be unable to be confident about their assessment and their recommendations and as a result the Court will hesitate about the reliance which can be put on them.  But it is obvious that what the defendant says to those who are asked by the Court to report will be available to the Court; if the defendant is not frank or candid he will get no mitigation for being co-operative.  That lack of candour, would probably indicate no remorse.  If he tries to pull a fast one, that inconsistency may lead the Court to a conclusion that he has no remorse so it seems to us to be obvious that the Court can take into account everything that is set out in the background reports.  A defendant cannot take only the good things from those reports and leave the bad things as though they are not to be taken into account at all.  In fact, in this case, the candour on which the Crown relies is also to your credit and we have taken that into account in the way we have approached this case. 

3.        Because importing Class B drugs is a serious offence it is inevitable that the Court will be considering a custodial sentence and indeed it probably can normally be expected that a custodial sentence will be the result.  The Court has guidelines according to which it works and those are set out in the case of Campbell-v-AG [1995] JLR 136 in relation to the importation of cannabis.  This is synthetic cannabis and we are not clear if it is appropriate to make a direct read-across and we make no decision on that as there has been no expert evidence before us, but if it were possible to make a direct-read across we note that the quantity here is below the Campbell guidelines in the bottom category and, indeed, that therefore the Court is free from those guidelines to make such assessment as it thinks fit as to whether a custodial sentence is appropriate in any given case. 

4.        Because you are the age you are we have to approach this matter in accordance with Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 and we have done so.  It is clear that the first part of that article which deals with whether or not you have a history of failure to respond to non-custodial penalties does not apply because you have no previous convictions.  We do not think there is any evidence before us upon which we can justify a conclusion under sub paragraph b because we do not know as yet what the effect of these particular drugs might be and therefore whether only a custodial sentence would be adequate to protect the public from serious harm from the person.  Indeed, it is just for that reason that we endorse the comments of the Bailiff in the case of AG-v-Huish [2014] JRC 194 last month that it would be very desirable for the Attorney General to bring a case in relation to these drugs before the Court in such a way that there can be a reference to the Superior Number for careful consideration of expert reports and advice as to potential dangers.  We hope that the Attorney General has that in hand.  We recognise that it is only about four weeks or so since the date of the Huish decision but we imagine that over the next three months it may be possible to do so.  And so we come to the last paragraph of Article 4(2), whether or not the offence or totality of the offending is so serious that a non-custodial sentence cannot be justified.  We think in this case, given your age, we can justify a non-custodial sentence.  We think that the cases of Huish and AG-v-Diogo [2014] JRC 153 were more serious than this one; they were older offenders, they had previous drugs convictions and, in the case of Diogo upon which the Crown relied, the amount of drugs involved in the context of importation was actually higher than is involved in this case. 

5.        In the circumstances we are not going to sentence you to youth detention but in making that decision we want you to be aware how close you have come to it.  These are serious offences and the sentence that we are going to impose on you is in accordance with the social enquiry report recommendation of 12 months' probation coupled with a Treatment Order and, in addition, we are going to sentence you to a period of community service.  You must do 180 hours' community service, which is the equivalent of 12 months' youth detention and I have to tell you that if you do not do the community service or if you breach the Probation Order or the Treatment Order then you are liable to be brought back to Court and sentenced again for these offences.  So you have been given a chance and we do hope that you take advantage of that. 

6.        Because of the nature of the sentence that will be, on Count 1; 180 hours' Community Service Order, which is the equivalent to 12 months' youth detention, together with a 12 month Probation Order and a 12 month Treatment Order, and on Count 2; 180 hours' Community Service Order, together with a 12 month Probation Order and a 12 month Treatment Order, concurrent, making a total of 180 hour's Community Service Order together with a 12 month Probation Order and a 12 month Treatment Order. 

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

Authorities

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

Campbell-v-AG [1995] JLR 136.

AG-v-Huish [2014] JRC 194.

AG-v-Diogo [2014] JRC 153.