Jersey Unreported Judgments

Drugs - reasons for declining a Newton hearing

[2021]JRC045

Royal Court

(Samedi)

15 February 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone

The Attorney General

-v-

Oliver Samuel Hall

C. R. Baglin Esq., Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This matter came before me on 27^th January 2021.  The issue was whether I should adjourn the matter prior to sentence for a Newton hearing.  I declined to do so and now give the reasons for my decision. 

2.        It is necessary to set out the facts, the area of dispute, the relevant principles, the submissions I received and the reasons for my decision. 

3.        Before doing so, I should like to make two general comments in relation to hearings when the Court is being invited to consider whether or not a Newton hearing is required.  First, it is essential that the Crown identify in writing the issue that it wishes the Jurats to determine on a Newton hearing prior to the Court determining whether or not such a hearing is required.  That did not occur in this case and indeed the first issue that the Crown identified, during the hearing, was not suitable for determination.  Secondly, the Crown needs to clearly identify - whether in its oral or written submissions advanced for the purposes of the hearing - the starting point for sentence after a trial if the Crown succeeds in establishing its version of events and the starting point if the defendant is to be sentenced on their version of events.  That also did not occur in this case until during the hearing and it is a valuable exercise for the Crown to carry out in every case in order to establish whether there is a material difference in sentence between the competing versions.  It is also of assistance to the Court when determining whether or not such a hearing should be ordered. 

The facts

4.        When the Defendant was indicted, he pleaded guilty to all five counts.  Counts 4 and 5 relate to the offences committed on or before 14^th May, 2020, and an issue arising from those counts the Crown say should be the subject of a Newton hearing.  Count 4 is an offence of production of a controlled drug, namely cannabis, and Count 5 is an offence of possession of utensils for the purpose of committing an offence, namely growing cannabis.  The utensils, as particularised on the Indictment, include a grow tent, air pumps and lighting. 

5.        Police Officers searched the Defendant's home in St Lawrence on 14^th May, 2020.  In a double garage at the rear of the property they found a washing machine.  Under the washing machine was a mat.  Under the mat was a man-hole cover.  When the man-hole cover was removed, a ladder leading to a basement was seen.  In the basement was a reasonably sophisticated operation in which 14 cannabis plants were found growing.  The Defendant, when arrested and cautioned, accepted the cannabis was his and declared that the cannabis was for his use and had nothing to do with anyone else in the house.  As mentioned above, there was various paraphernalia and utensils consistent with this being a well-planned offence.  The police seized bottles of plant food, air pumps, electrical supplies and cabling, a water pump, a mesh lined grow tent, plant food and plant pot containers. 

6.        The police also discovered a growth chart which particularised in detail various anticipated phases of the growth of the plants, indicating that a crop was expected on or about 14^th June.  This chart set out how much light, water and other nutrients the cannabis would need.  The Defendant was interviewed the same day.  He gave a full account.  He said there were 18 pots for plants but only 13 or 14 were being used.  He said he had set up the equipment alone in the basement and had not grown a crop of cannabis before.  The seeds came from a friend.  He said that the yield might be 100 grams or less from each plant and would be enough to "last him".  He said that he and his girlfriend (with whom he would share the cannabis) smoked up to 20 grams of cannabis resin a week.  He said the local price of cannabis - £15 per gram was "completely unaffordable" to him.  He said that the equipment that he used was cheap and some of it was "old".  He said that he had "stumbled across" the basement and thought it was ideal for him to grow the cannabis.  He denied having sold or intending to sell any of the drug.  He said it was "an experiment".  According to the prosecution summary he "freely offered the code for his iPhone" and was released on bail. 

7.        The Police High Tech Crime Unit downloaded the Defendant's phone in June 2020 and found correspondence between the Defendant and others in relation to the progress of the crop, the growth of the crop and what he was doing in terms of watering it and the health of the leaves and so on.  There was no correspondence in relation to potential customers for the crops. 

8.        In June 2020 Mr Harrison, a police drugs expert produced a report which said that using a "common range" of 28 to 84 grams per plant (1 ounce to 3 ounces) the crop could have produced between 364 grams and 1,092 grams (just over a kilogram).  This could have yielded between £3,900 and £27,300 depending upon the quantity of crop and whether it was sold on a wholesale or retail basis.  Mr Harrison said, under the title "Personal vs commercial use":

"In my experience an individual arrested will often claim that drugs recovered are for their own use in order to negate more serious charges.  HALL has claimed that the cannabis grow was exclusively for personal use and that between him and his partner they would typically use upwards of 20 grams per week.  This would equate to between 4 months - 1 years' worth of cannabis using the typical yield range.  This suggests that depending on actual yield the cannabis grow could be commensurate with personal supply however equally could run to a commercial quantity which would generate sizeable funds for the grower.  With the investment in equipment albeit second hand there is nothing to suggest that production would have halted after one cycle.  If production was to have continued then the expected yield would be well in excess of what one might consider personal supply.  The investment in equipment and chemicals to achieve this set up would normally run to several thousand pounds.  I am therefore of the opinion that this has the hallmarks of a commercial cannabis grow."

9.        When the Defendant was re-interviewed in August 2020, he said that he now no longer needed to grow cannabis because he had a prescription through a medical clinic in the UK.  He was charged on 20^th August, 2020, with manufacturing cannabis (an offence which is not recognised under Jersey law) and possession with intent to supply cannabis.  The latter charge was, for some reason, discontinued and the former charge was later amended to the current Count 4.  The Defendant's first appearance was before the Magistrate's Court on 1^st October, 2020, and on that day the Defendant advanced a basis of plea which he has not altered since, offering to plead guilty (in fact to the offence that was discontinued) on the footing that he was cultivating cannabis for his own use due to the lack of cannabis in the Island at the time and the high price of the limited cannabis that was available; that he had not grown cannabis before and that he would have supplied some of the cannabis to his girlfriend, both of them being heavy users of cannabis at the time. 

10.      The Crown reject the basis of this plea.  They rely upon the opinion of the expert that this "has the hallmarks of a commercial cannabis grow" and say that the projected yield and sophistication of the operation are consistent with production of cannabis for commercial and not for personal use. 

Principles

11.      The decision of the Superior Number in Ali -v- AG [2005] JRC 032 sets out the relevant principles, and at paragraph 18 recommends that the Court should give reasons for agreeing or declining to order a Newton hearing.  The Court in Ali set out the three exceptions to the rule that where a dispute arises as to the factual basis upon which sentence is to be passed, the Court must resolve this by the holding of a Newton hearing.  It seemed to the Court, and this matter was canvassed with counsel that in fact there is a fourth exception.  The second exception identified in Ali arises when the Court rejects the defence version as wholly implausible.  As a corollary the Court must be entitled to reject the prosecution version if no reasonable body of Jurats properly directed could be sure of the prosecution version of events.  This would arise (and the defence submitted perhaps arose on the facts of this case) in circumstances where there was no reasonable prospect of the defence version of events being excluded by the Crown on the evidence available.  It is unlikely that this is an exception that will frequently arise, as the Crown ought to consider the evidence in the case with care before inviting the Court to embark upon a Newton hearing.  But, nonetheless, it must be possible for the Court to decline to proceed to a Newton hearing in circumstances where there is no real prospect of the Crown succeeding.  Accordingly, the four exceptions to the requirement to hold a Newton hearing are: 

(i)        Where the difference between the two versions of events is not material to sentence.  The sentencing court need not hear evidence to resolve the matter, but in such a case the Court should proceed on the defendant's version of events and record that it is doing so;

(ii)       If the defendant's version is wholly implausible, the Court is entitled to reject it out of hand and pass sentence on the Crown's version;

(iii)      If there is no reasonable prospect of the Jurats properly directed accepting the prosecution version, then the Court is entitled to proceed to sentence on the defence version of events; and

(iv)      Where the matters put forward by the defendant do not amount to a contradiction of the prosecution case but, rather, are extraneous matters of the mitigation within the knowledge of the defendant, then it is not necessary to hold a Newton hearing but it may be appropriate to hold as what is known as a "reverse Newton".  In that case, the burden to prove the disputed facts is on the defendant and not the Crown. 

Submissions and decision

12.      Prior to the hearing, the Crown had not identified the issue which they wished the Jurats to determine, and ought to have done. 

13.      Indeed, the issue initially identified by the Crown for the Jurats to determine was "the growing of plants cannot be said to be for the use of the defendant and his girlfriend".  That was not a suitable question - simply inviting the Jurats to be sure that they could reject the Defendant's account.  The Jurats would be left not knowing upon what basis they should sentence the Defendant beyond knowing that they had rejected his account.  Subsequently, the Crown identified a more appropriate question for the Inferior Number to determine, namely that they invited the Jurats "to find that this was a commercial operation in accordance with the evidence of the Crown's expert". 

14.      As to the likely sentence, the Crown's written submissions averred that the dispute as to whether or not the cannabis was for personal use as against commercial supply was material to sentence, and referred to Finnigan -v- AG [2004] JLR 179 and AG -v- Campbell [1995] JLR 136. 

15.      The decision in Finnigan -v- AG is important in this context as the Superior Number determined that (Finnigan was a case of importation) that the appellant's intended personal use of the imported drugs was a characteristic of the offence of importation and not merely a mitigating factor.  The Superior Number put it this way:

"12. The essential difficulty is whether the intent to supply or the commercial purpose of the importer, or indeed the absence of a commercial purpose, is a characteristic of the offence or of the offender.  If it is a characteristic of the offence it should be taken into consideration in setting the starting point.  If it is a characteristic of the offender it is to be treated as part of the mitigation available to him or her.  In Gregory (4) it was treated as the former and in Conquer (3) the latter.

13. It is possible to argue the matter both ways. However, we prefer the Gregory approach for two main reasons. First, if one asks oneself the question: "Is the offence of bringing into Jersey enough heroin for a single injection as serious as importing 5g. of heroin for onward sale?" The answer is clearly "No." But both are offences of importing a Class A drug and the logic of Conquer is that one must apply the same starting point of seven years' imprisonment in both cases. In relation to the offence of possession of a dangerous drug, the statute provides that the intent to supply is a characteristic of the offence and creates two separate offences. Importation is, of course, a single offence, whether or not there is an intent subsequently to supply. However, it seems sensible to us as a matter of sentencing policy to apply the same distinction. It is true, as the Court of Appeal reiterated in Mortimore v. Att. Gen. (5), that the real evidence that is going to weigh with the court is the quantity of drugs and not what the importer says about his intentions, which might change anyway if the importer's circumstances change.

14. The second reason relates to transparency. Defence counsel drew our attention to the sense of grievance which the defendant has apparently suffered in this case as a result of the inability of counsel to explain how the sentence of 18 months' youth detention was arrived at, having regard to the high starting point of seven years. That lack of transparency would be removed if the court were to take a starting point which reflected the true gravity of the offence and the absence of any commercial motive.

15. We therefore state that if the defendant imports a relatively small quantity of a Class A drug for personal use, that importation should not be taken as being of equal gravity for sentencing purposes in settling the starting point as the importation of the same quantity for commercial purposes. Where there is a dispute as to whether there was an intent to supply that question must be resolved as laid down in Gregory (4) by a Newton trial."

16.      Accordingly, when setting a starting point for the purposes of production of cannabis, the Defendant's intentions in respect of the use to which the drug produced would be put is a characteristic of the offence and to be taken into account when setting the starting point. 

17.      It is of note that the Royal Court quite rightly said that a dispute as to whether there was an intent to supply in that context (importation of a small amount of Class A drugs) would need to be resolved by a Newton hearing. 

18.      Campbell -v- AG, provides that for the "commercial trafficking" of Class B drugs then the starting point for 1 to 10 kilograms was between 2 and 6 years' imprisonment. 

19.      The maximum yield in this case was 1 kilogram and accordingly, following Campbell, even if this was commercial trafficking, then the Crown argued and the defence did not demur from the same, the starting point will be in the region of 2 years' imprisonment.  The Crown said that in view of the expertise involved in the production, the starting point might be a little higher.  At page 147 of the decision of the Court of Appeal in Campbell, the Court having set down the appropriate sentence for quantities of between 1 and 10 kilograms of Class B said "We reiterate, for the avoidance of doubt, that these figures are starting points before any mitigation is taken into account on any ground.  We also reiterate that no distinction is to be drawn between cases involving importation and those involving supplying or possession with intent to supply.  The guidelines above apply equally to all cases involving the trafficking of Class B drugs on a commercial basis."

20.      It was agreed that the starting point of 2 years, in the event of commercial supply, should apply to production of 1 kilogram cannabis. 

21.      The Court has repeatedly said that there is little advantage to be had from considering the facts of other cases when determining sentence.  Every case is different. 

22.      The defence submission was that in relation to this specific offence, namely reasonably sophisticated production of approximately a dozen cannabis plants where the yield might be in the region of 1 kilogram, it was clear from previous cases that, whether or not the cannabis was ultimately to be sold or used by the grower for their personal use, the starting point was in the region of 2 years' imprisonment. 

23.      This was demonstrably correct, as shown by a number of cases cited by the defence (AG -v- Bisson [2009] JRC 151, AG -v- Williamson [2011] JRC 232, AG -v- Read [2012] JRC 004, AG -v- Belhomme [2012] JRC 233, AG -v- Rodrigues [2014] JRC 075 and AG -v- Lane [2015] JRC 026).  It is noted that in the last case, Lane, it was accepted that the defendant would have sold up to half the crop.  In that case the Crown moved for 15 months on a guilty plea.  Further, in Rodrigues the Court observed at paragraph 3: 

"The production of cannabis is a serious offence, requiring a quite deliberate and continuing intention to break the law.  Recent case law indicates a sentencing range of between 15 months' and 2 years, where a sophisticated or large scale cultivation was underway.  The Crown in this case seek a total sentence of 15 months."

24.      In many of the cases referred to the Crown moved for a sentence of 15 months which is equivalent to a starting point of 2 years after a trial. 

25.      Indeed, the Crown said that even if the defence version of events was accepted in this case, then they would be moving for a starting point of 2 years imprisonment.  Accordingly, in circumstances where the Crown has said that whether or not their version of events is preferred, the starting point will be one of 2 years imprisonment, it is difficult (although not impossible) for the Court to determine that a Newton hearing is necessary.  The Court is not bound to accept the Crown's assertions as to starting points and it seems to me that there must be some difference, perhaps although not a significant one, in the starting point as between a defendant growing cannabis for his own personal use and growing it purely to sell the drug on to others. 

26.      However, on the researches of counsel and the submissions made by counsel, on the facts of this case there was no material difference and accordingly I declined to order a Newton hearing.

27.      This decision should not be regarded as a precedent having any wider application than to the facts of the instant case.  There may well be and probably will be cases where whether or not cannabis cultivated is intended for personal use or for commercial sale will have an impact on the starting point and thus sentence.  However, this was not such a case.

Authorities

Ali -v- AG [2005] JRC 032. 

Finnigan -v- AG [2004] JLR 179. 

AG -v- Campbell [1995] JLR 136. 

AG -v- Bisson [2009] JRC 151. 

AG -v- Williamson [2011] JRC 232. 

AG -v- Read [2012] JRC 004. 

AG -v- Belhomme [2012] JRC 233. 

AG -v- Rodrigues [2014] JRC 075. 

AG -v- Lane [2015] JRC 026.