Jersey Unreported Judgments

Superior Number Sentencing - Drugs - possession and supply - Class A and Class B - reasons for the sentence of 11th February, 2019

[2019]JRC027

Royal Court

(Samedi)

19 February 2019

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen, Blampied, Thomas, Pitman, Christensen and Dulake.

The Attorney General

-v-

Jack Taylor

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

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 11^th February the Court sentenced the Defendant to a total of 3 years and 6 months imprisonment, reserving detailed reasons in the light of some points of law which arose in the course of the speech in mitigation which we heard from Advocate Haines.

2.        The Defendant was charged on an Indictment containing five counts, one of being concerned in the supply of MDMA (16 tablets), one being concerned in the supply of cannabis, one count of possession of MDMA, one of possession of cannabis and one of possession of cannabis with intent to supply.  The offences came to light following the arrest of another male which allowed police officers access to the property in which the Defendant was living.  Cannabis was found on the premises, as well as a set of electronic scales and a small wrap containing white powder with a locked red cash tin which contained a further substantial quantity of cannabis resin and a substantial quantity of cash.  The Defendant was arrested on suspicion of possession of controlled drugs with intent to supply, and his iPhone was also seized.

3.        The Defendant was cooperative in his initial interview and gave investigators the PIN code for interrogation of his iPhone.  Subsequently the iPhone was examined indicating more than 13,000 entries which required review. On the basis of that review, the counts of being concerned in the supply of MDMA and cannabis were added.

4.        One should note immediately that the "knowingly concerned" charges alleged a breach of Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 ("the Drugs Law").  The possession charges alleged a breach of Article 8(1) of the Drugs Law.  The possession with intent to supply charge alleged a breach of Article 8(2) of the Drugs Law.

5.        Advocate Haines submitted that the sentencing regime for drugs offences which applies to charges under Article 8 of the Drugs Law did not apply to charges under Article 5(c). For this submission he relied upon AG v Antunes and others [2003] JRC 072, a decision of Birt DB sitting alone, in which the case of McDonough v AG 1994/193 (Court of Appeal, Jersey Unreported 28^th September 1994) was considered to be good law.  It was put to us as being the standard approach in this Court and it seemed to us that it merited a closer examination.

6.        In Antunes Birt DB expressed himself in no doubt that McDonough continued to be binding upon the Royal Court unless or until there was a decision of the Court of Appeal which says otherwise and ruled the Rimmer guidelines to be inapplicable.  The Court indicated that it reached this conclusion without dismay, because it shared the view expressed by the Court of Appeal in McDonough that there was a very wide range of activities encompassed within the offence of "being concerned", and it would be unfortunate to adopt the stricter guidelines which were envisaged in Clarkin and Pocket v AG [1991] JLR 213, Fogg v AG [1991] JLR 31, Campbell v AG [1995] JLR 136 and Rimmer and others v AG [2001] JLR 373. 

7.        The significance of this line of cases is that the Court of Appeal has progressively introduced a framework for sentencing in drug trafficking cases by having primary regard to the weight or quantity of drugs which were the subject of the charge.  Nonetheless it is quite clear from those authorities that the weight or quantity of drugs is only an indicator of the extent of the Defendant's involvement in drug trafficking, and it is that involvement which needs to be assessed.  Usually the weight or quantity of drugs involved will be the clearest guideline to the degree of involvement.

8.        It therefore would be entirely credible to argue that by that prioritisation, the weight of drugs became the most significant feature and should apply equally in cases of being concerned in drug trafficking as it is in drug trafficking itself.  Even if that were the case, it would still be required that the sentencing court have regard to the level of involvement in drug trafficking.

9.        Nevertheless, there appears to us to be obvious good sense in the approach taken in Antunes, recognising that being concerned in the supply of drugs covers a wide range of activity.  There is however one qualification to that decision, which we think it is right to add, not as being in conflict with it but expanding upon the principles involved.  The present case is a good example of why that qualification is needed.

10.      Article 5 of the Drugs Law is as follows:-

"Restrictions on production and supply of controlled drugs

Subject to the provisions of any Order for the time being in force under Article 12, it is an offence for a person -

(a)       to produce or be concerned in the production of a controlled drug;

(b)       to supply or offer to supply a controlled drug to any person; or

(c)       to be concerned in the supplying of, or in the making of an offer to supply, a controlled drug to any person."

11.      Article 8, paragraphs 1 and 2 are in these terms:-

"Restrictions on possession of controlled drugs

(1)       Subject to the provisions of any Order for the time being in force under Article 12, it is an offence for a person to have a controlled drug in his or her possession.

(2)       It is an offence for a person to have a controlled drug in his or her possession, whether lawfully or not, with intent to supply it to another person in contravention of Article 5(b)."

12.      In the present case, the Defendant accepts that he supplied both ecstasy and cannabis to others.  Obviously therefore, he was concerned in supplying it.  Equally obviously, because these are the facts before us, as is clear from the expert report, he was in possession of the drugs in question with intent to supply them before he actually did supply them.  The activity in which he was concerned therefore could have been charged under either Article 5(c) or under Article 8(2).  There are some differences between the two charges - one is that in the case of Article 5(c), the Crown would not have to prove actual possession and could rely, as here, on the evidence which was available from the iPhone investigation and any admissions which the Defendant made.

13.      Had Article 8(2) been charged, the Rimmer guidelines would have applied.  The Article 5 and Article 8(2) offences carry the same maximum sentence where the same classification of drugs is involved.  The gravamen of the two offences is also the same.  It would be illogical to take the same activity and apply the Rimmer guidelines if that activity is charged under Article 8(2) but not under Article 5(c).  Obviously, if "being concerned" related to a different participation in the overall activity of the drugs being supplied, that would raise the considerations which were the subject of the decisions in Antunes and in McDonough.  Accordingly, where an Article 5 offence is charged, we rule that the Rimmer, Bonner and Campbell guidelines apply if the offence involved the defendant engaging in activities which would also have amounted to an offence under Article 8(2).  Those guidelines may well of course apply to the other offences under Article 5 too, depending on what the defendant's involvement or activity actually was.

14.      The second point of law which arose in this case concerned the possibility of applying the case of Valler v AG [2002] JLR 383, a decision of the Court of Appeal.  In that case, the defendant had imported into Jersey 497.78 grams of heroin and 5007 ecstasy tablets.  The Royal Court had taken a starting point of 14 years imprisonment in relation to the importation of heroin and added two years to take account of the fact that a substantial quantity of ecstasy had also been imported.  After mitigation, the Court then imposed a sentence of 11 years imprisonment for the importation of heroin and 10 years imprisonment for the importation of ecstasy, to run concurrently.  Among other points taken on appeal was that the starting point should not have been increased.

15.      The Appellant did not dispute on appeal that had he imported that amount of heroin without any ecstasy, the appropriate starting point would have been 14 years imprisonment, and it was also agreed that if the only importation had been that quantity of ecstasy, the appropriate starting point would have been 13 years.  The question posed for the Court of Appeal was whether, when the Court was dealing not only with a very substantial quantity of one drug but also a substantial quantity of another prohibited drug, the starting point should be increased to some extent, even though the sentences would run concurrently.

16.      At paragraph 8 of his judgment, Vaughan JA said this:-

"We consider that such an approach [the Guernsey case of Richards v Law Officers of the Crown [2002] GLR 5] is also appropriate in this jurisdiction when the quantities of the different drugs are so significant. Were it otherwise, as the Deputy Bailiff aptly pointed out in his sentencing remarks, once the accused has imported a significant quantity of one drug, there would be no extra penalty imposed at all in respect of the importation of a very significant quantity of another drug, be it of the same class as the original drug or a different class."

17.      Crown Advocate Yates submitted that as the quantity of drugs in this case was not significant, Valler should not be applied, and Advocate Haines made essentially the same submission.  We agree that where the quantities of drugs are very significant, as they were in Valler, there is no real doubt about the application of the principle which the Court of Appeal expounded in that case.  It seems to us however that even where the quantity of drugs is not significant, the fact is that by not applying a Valler uplift, the application of concurrent sentences will mean that the second set of offending effectively goes unpunished.  One way of looking at that is to impose consecutive sentences, and in some cases that may be appropriate.  However, where, as in this case, a concurrent sentence seemed to be appropriate for the various offences on the Indictment, the Court was left with the question as to how it should treat an offender who was, as the Crown described it, a medium seriousness offender in the supply of the Class B drug cannabis, but a low level offender in the supply of the Class A drug ecstasy, the latter carrying much higher sentences.

18.      We resolved not to apply a Valler uplift, having regard to all the circumstances, not least because the cannabis offending influenced our view of the ecstasy offending.  We had no doubt we should treat the defendant as one who is intimately involved in drug trafficking.

19.      This Court has occasionally imposed a non-custodial sentence for the possession of ecstasy or other Class A drugs with intent to supply in circumstances where very low quantities of drugs were involved.  Advocate Haines' submission was that for a number of reasons, this was a case where a custodial sentence could be avoided.  He handed up to us a list of mitigating circumstances, all of which we have considered carefully.  He said that the Defendant had entered timely and valuable guilty pleas; was effectively a person of good character; was fully cooperative; was only at a moderate risk of reconviction within 12 months; was motivated to maintain a drug-free lifestyle; was aged only 25 at the time of arrest and 24/25 at the time of offending; had a good employment record; had spent some time on remand and was able to provide several good references from family and work colleagues.  In addition, Advocate Haines emphasised that this was only a small quantity of ecstasy tablets (16), and he asserted that the ecstasy was not given to friends for money or profit and that a considerable amount of time had elapsed between the date of arrest on 27^th April 2018 and the date of charge on 11^th July 2018.

20.      These were mostly strong points in mitigation which the Court by and large accepted as mitigating features, although the Defendant is not a person of good character, having a previous conviction for the possession to ecstasy as well as other non-drugs related convictions, and the Court takes the view that his age of 25 at the time of offending does not amount to any mitigation.

21.      Nonetheless, an offence of trafficking in Class A drugs will normally result in a custodial sentence and there would have to be some exceptional circumstances before that was so.  It is not coincidental that in Rimmer v AG, the Court of Appeal fixed a starting point of 7 to 9 years imprisonment for trafficking in even one gram of heroin, cocaine or other Class A drug, and in Bonner and Noon v AG [2001] JLR 626, a similar starting point of 7 to 9 years imprisonment was considered appropriate for 1 to 500 units of a Class A drug.

22.      To the extent that there might have been anything in Advocate Haines' submissions in this respect, we consider that this was negated by the assessment we have made of the Defendant's activities in relation to cannabis.  Here there is no doubt that even though he supplied cannabis on what Advocate Haines described as a social supply basis, he was a genuine dealer in that drug.  The purpose of his supply, whether to friends or not, was to acquire sufficient cash to enable him to fund his own drug habit without cost to him, and the presence of large sums of cash in his possession at the time of arrest show that to be true.  In those circumstances, there is no doubt in our assessment that the Defendant falls to be treated as a drug trafficker and his supply of ecstasy, even to friends without charge, falls fairly and squarely within the Bonner guidelines which we have applied. 

23.      For these reasons we reached the view that a custodial sentence was right in principle on the authorities and appropriate for this present case.  We took the view that the Crown was correct to select a 7 year starting point on the application of the Bonner guidelines. The question then was what discount we should allow against that starting point for the mitigation which Advocate Haines ably put before us and which is summarised at paragraph 19 above.  In particular, we noted the comments of this Court in AG v McKenzie and Richards [2011] JLR 689 in relation to social supply, both in the context that this element did not have an impact upon the starting point and that it did in some cases go towards mitigation.  Advocate Haines distinguished three types of social supply - supply in order to fund the defendant's drug habit; supply as a favour in the hope of some return at some point in the future; or supply without conditions, genuinely passing the drugs in question to friends.  The evidence on which we proceeded is that set out in the basis of plea, and so we accepted the Defendant fell in the latter category in respect of the supply of MDMA.  Accordingly, recognising the force of the mitigation which Advocate Haines put before us and accordingly we felt it appropriate to reduce in small measure the conclusions of the Crown. We therefore reduced by six months the conclusions of the Crown in relation to the first count on the Indictment, namely being concerned in the supply of MDMA, and sentenced the Defendant as follows:-

(i)        Count 1 - 3 years 6 months imprisonment

(ii)       Count 2 - 18 months imprisonment

(iii)      Count 3 - 1 month imprisonment

(iv)      Count 4 - 12 months imprisonment

(v)       Count 5 - 3 months imprisonment,

all to run concurrently making a total of 3 years 6 months imprisonment.  In addition, we ordered the forfeiture and destruction of the drugs.

Authorities

Misuse of Drugs (Jersey) Law 1978. 

AG v Antunes and others [2003] JRC 072. 

McDonough v AG 1994/193. 

Clarkin and Pocket v AG [1991] JLR 213.

Fogg v AG [1991] JLR 31. 

Campbell v AG [1995] JLR 136. 

Rimmer and others v AG [2001] JLR 373. 

Valler v AG [2002] JLR 383. 

Bonner and Noon v AG [2001] JLR 626. 

AG v McKenzie and Richards [2011] JLR 689.