Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession and supply - Class A

[2021]JRC016

Royal Court

(Samedi)

21 January 2021

Before     :

Sir William Bailhache, and Jurats Ramsden, Pitman and Austin-Vautier.

The Attorney General

-v-

Carlos Andre Romao Teixeira

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 12^th November, 2020, following guilty pleas to the following charges:

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 1).
3 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law, 1978 (Count 2, Count 3, Count 4).

Age:  43. 

Plea: Guilty. 

Details of Offence:

In the early hours of 15^th December, 2019, the defendant was seen by a member of the public "snorting a line of coke off the counter" in a nearby takeaway shop. 

 

Following a short foot chase the defendant was detained by police officers.  He was searched and six zip lock bags containing cocaine, a green ecstasy tablet, herbal cannabis and cannabis resin were found.   A small wrap of ecstasy in powder form and £78.42 in cash were also seized from his wallet.

 

The cocaine weighed 4.93 grams and the herbal cannabis and cannabis resin weighed 392 milligrams and 1.11 grams respectively.  The small wrap contained 50 milligrams of MDMA powder.

 

The police searched the defendant's home address and found several items related to the supply of drugs, including scales, creatine powder and cling film.  There were also two clear zip lock bags containing residual traces of cocaine mixed with creatine and a large amount of cash (approximately £4000).

 

The defendant was sentenced on the basis that he purchased the cocaine on the evening in question, and around two thirds of the cocaine was to be sold to friends at the Jersey street price and around one third was for the defendant's own use.

Details of Mitigation:

Guilty plea, social supply, a quantity of drugs was for personal use, good work record, remorse, good family support (including good relationship with daughter), was participating in relevant courses during incarceration. 

Previous Convictions:

The defendant had 6 convictions for 15 offences, including 11 drug offences.  In 2009 he was sentenced to 4 years' imprisonment by the Royal Court for the supply of cocaine

Conclusions:

Count 1:	4 years and 6 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	1 week's imprisonment, concurrent.

Total:  4 years and 6 months' imprisonment.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Conclusions granted.

M. T. Jowitt Q.C., Solicitor General.

Advocate M. J. Haines, for the Defendant.

JUDGMENT

the Commissioner:

1.        The defendant is here to be sentenced on an Indictment containing four counts, the most serious of which is Count 1, the procession of a controlled drug namely cocaine a Class A drug with intent to supply.

2.        The circumstances are that on 15^th December, 2019, in the early hours the defendant was seen by a member of the public snorting a line of coke off the counter in a nearby takeaway shop; and after a short foot chase he was detained by the police.  From him were recovered from his jacket pockets seven zip lock bags, six containing white powder, which later proved to be cocaine; a green tablet with 'Lego' marked on its surface which proved to contain MDMA otherwise known as ecstasy and a zip lock bag containing cannabis resin and herbal cannabis and a white iPhone.  He was arrested and taken to Police Headquarters.  He was searched and, on that search, a small wrap of ecstasy in powder form and £78 in cash were seized from his wallet.

3.        When his home address was searched later on, there was found various items of paraphernalia which are often regarded as associated with drug taking or drug trafficking, in particular a small set of scales, a small roll of cling film, two clear zip lock bags containing residual traces of cocaine mixed with creatine, a bag of creatine powder, two telephones, a metal grinder, a small knife with suspected cannabis resin on the surface, suspected cannabis seeds and a substantial amount of cash £3,906.68 mainly in dominations of £20 and £10 and €95.

4.        In relation to the Crown's contention that the cash ought to be confiscated as representing the proceeds of drug trafficking there is to be a confiscation hearing which the Court has already adjourned to 10 a.m. on 5^th February, 2021.

5.        The Court proceeds by following the authority of Rimmer v AG [2001] JLR 373 and our first task is to set a starting point for sentence.  The total weight of drugs of cocaine in this case was 4.93 grams.  There is a question around personal use which I will come onto later, but that is not relevant for the purposes of identifying the starting point.  At 4.93 grams the offence falls within the bracket of starting point 7 to 9 years and the Court is faced with the Crown contending a 7½ year starting point as relevant and Advocate Haines, who has said everything that could possibly be said for this defendant, contending for 7 years.

6.        The court considers that 7½ years is the correct starting point for this offence.  We take account of the fact that the quantity was at the lower end of the scale, but we also take account of the fact that, on his own basis of plea, the defendant was responsible for purchasing the cocaine and so he is not in the same position as a courier, his involvement in drug trafficking is that much higher; and furthermore he is not a first offender in drug trafficking offending.  Indeed, the Court thinks that it would have been possible to justify a starting point of 8 years.  Nonetheless, we are taking the starting point at 7½ years for this purpose.

7.        We then come to the issue of personal mitigation.  The first one which Advocate Haines has submitted is that of the guilty plea.  The Crown contends that it is not worth a full discount of one third.  Advocate Haines says that it is.  Having regard to everything that Advocate Haines has said, we think that one third discount is appropriate and that is what we are going to allow in this case. 

8.        But we do have in mind that sentencing is not a mechanical arithmetic exercise and having indicated that we will allow full discount for this mitigation, we are not going to break up the amount identified for the other heads of mitigation of which there were seven mentioned by Advocate Haines.  Those were that this was a case of social supply; that there was a small circle of people who were willing participants in the exercise and that on the basis of plea the defendant had agreed to purchase the cocaine which he was going to sell on to them at street prices, Advocate Haines says, without profit to himself.  So, he then takes the next point in the personal mitigation that a quantity of this drug was going to be available for personal use. What would end up in the hands of others is less than the full amount which was found in his possession. 

9.        Advocate Haines then mentions the defendant's good work record; his good relationship with his daughter and the fact that he meets her financial obligations to her maintenance and upkeep; his letter of remorse to the Court, his good family support which all leads to him being in a good position to avoid recourse to drug trafficking, so Advocate Haines says when he emerges from prison; the contents of the Social Enquiry Report;, that he referred himself after his arrest to Drug and Alcohol for assistance and successfully completed that course; and the other references which were put before us.

10.      I will say something about social supply in just a moment, but all the other points which have been raised are points which we have considered, which we regard have something in them and we have taken them into account.

11.      The difficulty with the issue of social supply is that in order to assess how much if any credit we are to give to this as a point of mitigation, we have no evidence before us at all.  I refer first of all to the case of MacKenzie v AG [2011] JLR 689 at paragraph 50 where the Superior Number said this:-

"...there is a difference between the supply of the drugs for profit and the supply of drugs as a "social supply." The extent of that difference will be a matter for the sentencing court to appreciate in considering the mitigation which has been advanced. If the social supply amounts to recovering the cost of the drugs, so that the supplier in effect has his drugs for nothing or at a discounted price, it may be that the mitigation will not carry much weight. If the defendant has supplied the drugs to particularly vulnerable persons who were not in a real position to refuse by reason of their age or other vulnerabilities, it may equally be that the sentencing court will not give too much credit for the mitigation of a so-called "social supply." There is a wide variety of factual possibilities in what has been termed a social supply of drugs and we think it is better to leave the sentencing court to form its own assessment of the extent to which the explanations proffered on behalf of any defendant can properly be treated as mitigation."

12.      In the instant case the basis of plea first put forward by the defendant was that he had purchased the cocaine on the evening of the 14^th December 2019.  He was subsequently arrested and found to be possession of six zip lock plastic bags each containing an average 0.82 milligrams of cocaine; the cocaine was to be used by the defendant and shared with friends.

13.      In the revised basis of plea, with the same introduction the variance is this; around two thirds of the cocaine was to be sold by the defendant to friends at the Jersey street price, around one third was for the defendant's own use.  There is no statement as to whether the price at which the defendant was to sell to friends, that is the Jersey street price, was the same as the price at which the defendant had acquired the cocaine.

14.      This Court finds it impossible to proceed simply on the assertion of counsel that the price at which the drugs were sold was the same as the price at which the drugs were acquired.  This is not a question of reversing a burden proof in any sense.  It is a fact, however, that one cannot expect the Crown to disprove what has been said, because the information is entirely within the defendant's own knowledge and what the Sentencing Court has to do is to form its best judgment as to the facts as it can from all that is put before it.  In that context, we have certainly noted that there is no evidence of an analysis of dealings through the defendant's telephone; there is no evidence of deal lists, but at the same time there is evidence of drug paraphernalia in his premises, the house which he occupied, and there is evidence of creatine which the expert's report indicates is often used to adulterate supplies of cocaine.  And we have also noted that the expert contends that usually drug users do not adulterate their own supply.

15.      Having regard to all these features which go in some respects one way and in other respects the other way, the Court considers that it is impossible to give full credit to the assertion through counsel that this was a case where the same price for the drugs on sale applied as to the drugs when acquired.  And therefore, we have approached the social supply issue very much on the basis of MacKenzie by indicating that we do not feel able to place very much weight on what is being said, but that is not to say we have not taken it into account to the extent we feel we can.

16.      Having regard to all these features, in our view the correct sentence on Count 1 of the Indictment is as moved for by the Crown.  We have allowed 6 months for mitigation which, as I say, Advocate Haines has very fully put before us and allowed a one third discount for the guilty plea, and accordingly we reached a sentence moved for of 4½years' imprisonment in respect of Count 1 on the Indictment.  On the remaining Counts the defendant is sentenced to 1 month's imprisonment concurrent on Counts 2 and 3 and 1 week's imprisonment concurrent on Count 4 making a total of 4½ years imprisonment.

17.      In addition, we make an order for the forfeiture and distruction of the drugs, the scales, the knife, the grinder, the creatine and the cling film seized. 

18.      So, for these reasons Mr Teixeira you are sentenced to 4½ years imprisonment.

Authorities

Rimmer v AG [2001] JLR 373. 

MacKenzie v AG [2011] JLR 689. 

AG v Teixeira [2007] JRC 066

AG v Teixeira [2009] JRC 153

AG v Bates [2020] JRC 180