Jersey Unreported Judgments

Superior Number Sentencing - drugs- -importation - possession - Class A and Class B.

[2014]JRC248

Royal Court

(Samedi)

15 December 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Kerley, Crill, Milner, Olsen and Grime

The Attorney General

-v-

Daniel Niall Riley

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

1 count 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 (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  20.

Plea: Guilty.

Details of Offence:

The defendant was observed on a number of occasions checking the mailboxes at a block of flats. 

Customs and Immigration Officers subsequently intercepted a package at Postal Headquarters addressed to a mailbox at the same block of flats.  It was found to contain 50 ecstasy tablets (MDMA) with a total estimated street value of £750.  A duplicate package was delivered in place of the drugs and the defendant was arrested after being observed collecting it. 

The defendant pleaded guilty to Count 1 on the basis that he was concerned with others in the importation of ecstasy to the extent that while he did not place the actual order for the drugs he may have facilitated payment for it, and the address for delivery had been found on his computer.  He had agreed to collect the consignment from the address knowing that it contained illegal drugs and he was going to supply it to another for an agreed fee with the knowledge or suspicion that it may well have been subject to onward supply. 

Following the defendant's arrest, approximately one gram of cannabis worth £15 was found in the car in which he had been a passenger.  He claimed this as his. 

Details of Mitigation:

Guilty pleas; youth, subject to Criminal Justice (Young Offenders)(Jersey) Law 1994.

Remorse and a desire to turn his life around by accepting a place at University.

Previous Convictions:

67 previous convictions of which 6 were for drugs offences including 2 relating to the importation of a controlled drug and 4 for the possession of controlled drugs.

Conclusions:

Starting point 7 years' youth detention.

Count 1:	3½ years' youth detention.
Count 2:	2 weeks' youth detention, concurrent.

Total: 3½ years' youth detention. 

Confiscation order in the nominal sum of £1 sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The Court noted that these were serious offences and that the Crown's conclusions were correct in principle, but considered Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 and accepted that there were exceptional circumstances; in particular, the defendant's attempt to turn his life around and academic results.  It noted that he was at a crossroads and decided to give him "a very last chance". 

The sentence handed down was "to fit" the defendant and enable him to obtain a degree.  The Probation Order was a crucial part of the sentence as it would involve a drug treatment order with random tests in the months prior to him leaving for university.

Count 1:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a 9 month Probation Order and Treatment Order.
Count 2:	45 hours' Community Service Order, equivalent to 2 weeks' youth detention, concurrent.

Total: 240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a 9 month Probation Order and Treatment Order. 

Confiscation Order in the nominal sum of £1 made.

Forfeiture and destruction of drugs ordered. 

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

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

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment containing two charges: one is being knowingly concerned in the importation of ecstasy and the other is possession of cannabis.  The serious charge, of course, is being knowingly concerned in the importation of the 50 ecstasy tablets which on average contained 143 milligrams of the active ingredient per tablet.  You initially denied any involvement; subsequently you entered a guilty plea on a basis that the Crown has accepted.  I will just say that for the record that was that while you did not place the actual order you may have facilitated the payment for the consignment; the address for the delivery was found on your computer; that you agreed to collect the consignment from that address knowing it contained illegal drugs and at one point you had considered stealing the consignment and keeping it for yourself and potentially supplying the contents, but in the end you were simply going to supply the whole consignment to another associate for the agreed fee and you knew, or suspected, it might have been subject to onward supply.  Indeed your conduct up to the moment of arrest showed that there were five occasions on which you went to the mailboxes where this ecstasy was to be delivered. 

2.        Consistently with the authorities the Crown contends that this offence crosses the custody threshold and the Crown has taken a starting point of 7 years' youth detention and moves for a sentence of 3½ years and it is likely that if the Court had been going to impose a custodial sentence that would have been the correct starting point.  We have had to consider, however, Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 which is in these terms:-

"(2)     A court shall not pass a sentence of youth detention unless it considers that no other method of dealing with the person is appropriate....."

And the Court has been out for some time considering whether there is any other method which is appropriate; there are various reasons which are given in the statute why it might be so.  The first is that the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them.  Well, you have a very poor record and you have committed 67 offences including 6 drugs offences of which 2 were for importation.  That was in July 2011.  You have been bound over, fined, given probation, given community service and when given community service you were referred for a breach, and an extended term was then given to you.  There is absolutely no doubt at all that you have a history of failing to respond to non-custodial penalties.  Now your counsel suggests that the fact that you have completed a course shows that you are not unwilling, you have responded.  That is not the basis of the statute.  The statute shows that if you commit further offences that establishes your unwillingness to respond to the non-custodial penalty that has been imposed. 

3.        Sentences for the importation of Class A drugs almost invariably result in a custodial sentence being imposed and therefore the Court has looked very carefully at whether the offence or totality of the offending is so serious that a non-custodial sentence cannot be justified and we would also add that if we had thought that you would commit further trafficking offences then paragraph (b) would also apply because it would be a question of protecting the public from serious harm.  These are serious offences and you must appreciate that.  You should also appreciate that the Court has considered very carefully all the background facts, not just the factual basis to your plea, and it is perfectly apparent that it was not a one-off issue of offending.  Do not think we are so foolish as to believe that. 

4.        The Court considers that you are right at a crossroads; you have made numbers of mistakes.  Sometimes, it is true, that you have made those mistakes as a result of your own difficulties which are not your fault at all.  It is time to recognise that you are at that crossroads and it is absolutely time for you to realise that this is going to be your very last chance.  You said in your letter to us:-

"I can guarantee the Courts and the judicial system I would never even contemplate associating with any sort of criminal activity again, I will go to University and be of academic excellence to the best of my ability and strive of becoming in a position where I can provide for my daughter and settle down like a genuine person would do."

We would like to believe that if you mean it.  If you are going to do it, then you do have now a chance at this crossroads of making absolutely sure that you go to University and you give yourself the best possible basis for turning your life round.  At the end of day, it is nobody else that can make these decisions but you, it is your choice, nobody else can do that, you have got to make that decision for yourself and it has been disappointing that you have continued to take cannabis over the last six months since you were picked up for these offences.  Disappointing because you must realise that itself is a criminal offence. 

5.        You have provided us with some very good references.  It is disappointing that you are not being supported here in Court today frankly.  But those references show that you do have support and you should take advantage of it.  Because these offences, or the offence of importing ecstasy, almost invariably can carry a custodial sentence, we have had to consider very carefully the sentence to be imposed and we are going to impose an individualised sentence tailored to fit you in the light of your youth and your background but in particular, in the light of the chance that you now have to turn your life around with a university degree.  We think this really is a last chance and you must appreciate that. 

6.        We are going to impose a sentence of 240 hours' community service on Count 1 on the Indictment; the alternative would have been 18 months' youth detention.  We are going to impose 45 hours' community service, concurrent, on Count 2 and the alternative sentence would have been 2 weeks' youth detention.  We are going to put you on probation for a period of 9 months and attached to the Probation Order a Drug Treatment Order which will include random drug tests for cannabis.  The only reason for the Probation Order is to be able to attach the Drug Treatment Order to it.  Do not expect Probation to be putting you on courses because that is not recommended to us.  But you must treat the Drug Treatment Order as being a serious part of the sentence which is being imposed and the random drug tests will be conducted and you should realise that if you commit further criminal offences, and that will include using cannabis, then you are liable to be brought back this Court and sentenced again for these offences which we are now passing sentence on you now.  So in case you were thinking that this is a soft option, actually youth detention in some ways would have been a soft option.  This is going to be hard work for you and every day when you get up you should say to yourself this is going to be hard work, I have to work to turn my life around.  It is your choice and we hope that you do. 

7.        The reason we have chosen that period for community service is that if it is to work we think that you should start University next September with a clean slate and then you can go forward positively and with hope. 

8.        We order the forfeiture and destruction of the drugs.

Authorities

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

Bonnar and Noon v AG 2001/212.

AG v Romano [2009] JRC 072.

AG v Cameron [2008] JRC 182.