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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Hall 16-Mar-2021 [2021] JRC 082 (16 March 2021)
URL: http://www.bailii.org/je/cases/UR/2021/2021_082.html
Cite as: [2021] JRC 082, [2021] JRC 82
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Inferior Number Sentencing - Drugs - possession and production - Class B and Class C
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Before : |
Sir Michael Birt, Commissioner, and Jurats Olsen and Austin-Vautier |
The Attorney General
-v-
Oliver Samuel Hall
Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:
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3 counts of: |
Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law, 1978 (Counts 1, 2 and 3). |
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1 count of: |
Production of a controlled drug, contrary to Article 5(a) of the Misuse of Drugs (Jersey) Law, 1978. (Count 4). |
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1 count of: |
Possession of utensils for the purpose of committing an offence, contrary to Article 10 of the Misuse of Drugs (Jersey) Law, 1978.(Count 5). |
Age: 34.
Plea: Guilty.
Details of Offence:
On 12th September 2019, the defendant was found in possession of 14.57 grams of cannabis resin (worth £200-£300), 563 milligrams of herbal cannabis (worth £10) and 28½ Methandienone tablets (a steroid, worth £30) (Counts 1 - 3).
In 2020, the defendant grew thirteen cannabis plants in a hidden basement under his house, concealed by a man-hole cover. He set up a sophisticated facility to grow the plants, using a grow tent, air pumps, lighting, electrical supplies, cabling and plant food. Notes relating to the cannabis "grow cycle" were also recovered (Counts 4 and 5).
The defendant admitted he had been growing cannabis for two months and had borrowed the equipment from someone else. He denied having any intention to sell it, saying that he and his girlfriend smoked up to twenty grams of cannabis resin a week between them.
He explained that poor quality and a lack of cannabis locally "...led [him] to do [his] own thing". He was unwilling to pay the local price which was "...completely unaffordable".
The plants were of healthy appearance and would have been expected to reach maturity. They would have given a potential yield of 364g - 1,092g, generating estimated sales of approximately £3,900 - £15,600 if sold at wholesale level and £7,300 - £27,300 at street level.
Details of Mitigation:
Early guilty pleas, co-operative at interview. The defendant stated he began using cannabis as a painkiller for a back injury.
Previous Convictions:
5 convictions spanning 16 offences, including possession and possession with intent to supply Class B drugs. The defendant was imprisoned in 2013 for possession with intent to supply 71 kilograms of cannabis resin, worth between £700,000 - £1,000,000, and was released in 2018.
Conclusions:
Starting point 2 years imprisonment.
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Count 1: |
1 month's imprisonment. |
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Count 2: |
No separate penalty. |
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Count 3: |
1 month's imprisonment, concurrent. |
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Count 4: |
16 months' imprisonment, concurrent. |
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Count 5: |
12 months' imprisonment, concurrent. |
Total: 16 months' imprisonment, concurrent.
Forfeiture and destruction of the drugs and drugs paraphernalia sought.
Sentence and Observations of Court:
Starting point 2 years and 6 months' imprisonment.
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Count 1: |
50 hours' Community Service Order, equivalent to 1 month's imprisonment. |
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Count 2: |
No separate penalty. |
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Count 3: |
50 hours' Community Service Order, equivalent to 1 month's imprisonment, concurrent. |
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Count 4: |
210 hours' Community Service Order, equivalent to 15 months' imprisonment, concurrent. |
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Count 5: |
180 hours Community Service Order, equivalent to 12 months' imprisonment, concurrent |
Total: 210 hours' Community Service Order, equivalent of 15 months' imprisonment.
Forfeiture and destruction of the drugs and drugs paraphernalia ordered.
C. R. Baglin Esq., Crown Advocate.
Advocate J. C. Gollop for the Defendant.
JUDGMENT
THE commissioner:
1. Mr Hall, in September 2019 you were found in possession of small quantities of cannabis and a Class C drug, but more significantly in May 2020, police discovered that you were growing cannabis plants in a basement. The evidence before us is that on maturity the 13 plants would have produced between 364 and 1,092 grams; in other words, between one third and 1.1 kilos in round terms. Counts 4 and 5 relate to this offending and Counts 1 to 3 relate to the September 2019 offending.
2. Now you have a long-standing cannabis habit and you have previous convictions for drug offences, including possession with intent to supply cannabis for which you were sentenced to a lengthy period of imprisonment. However, the Crown accepts that you are to be sentenced on the basis that, as you said when the cannabis plants were discovered, the cannabis was for the personal use of you and your fiancée. As I say, this is accepted by the Crown and we proceed on that basis.
3. The Crown has submitted that the fact that a drug is for personal use affects the starting point and it cited in support the case of Finnigan v AG [2004] JLR 179. However, Finnigan was disapproved by the Court of Appeal in the case of Shahnowaz v AG [2007] JLR 221. That case held that the fact that a drug is for personal use does not affect the starting point but provides personal mitigation. It is true that Shahnowaz was dealing with heroin, a Class A drug, whereas we are dealing here with cannabis a Class B drug, but that cannot affect the logic or principle of whether personal use is reflecting in the starting point or by way of mitigation.
4. In passing we note that at an earlier hearing in this case published at AG v Hall [2021] JRC 045, the Deputy Bailiff indicated that personal use was a matter for the starting point; but it is right to say that he was not referred by the Crown to Shahnowaz and was only referred to Finnigan. He was therefore not provided with the full picture. In our judgment, Shahnowaz must be followed as being a decision of the Court of Appeal, and therefore personal use is a mitigating factor, not a matter for the starting point.
5. Turning to the starting point, Campbell, Molloy & MacKenzie v AG [1995] JLR 136 lays down a starting point of 2 to 6 years for 1 to 10 kilos. In this case the plants were healthy and well maintained, and we think it right to proceed on the basis that they were likely to provide up to 1.1 kilos.
6. The Crown took a starting point of 2 years. However, as we have just indicated, this was on the incorrect basis that personal use was to be taken into account when fixing the starting point. Furthermore, the Crown purported to take account of the defendant's relevant previous drug convictions by reducing the mitigation. This explains why, despite saying that they were allowing a full one third discount for the guilty plea, they only managed to come down from a starting point of 2 years to a finishing point of 18 months. In other words, a reduction of less than one third. When this was pointed out to the Crown Advocate, after an adjournment to consider the matter he reduced the final conclusions from 18 months to 16 months.
7. However, in our judgment the approach adopted by the Crown in relation to previous convictions was equally in error as its approach in relation to personal use. As Harrison v AG [2004] JLR 111 makes clear at paragraph 72, a defendant's relevant previous convictions go to increasing the starting point where it is appropriate to do so. They do not form part of the mitigation process.
8. Taking account of these various factors we think that the correct starting point is one of 2½ years for the serious offence of cultivation of cannabis. This takes into account the aggravating feature of the previous convictions and makes no allowance for the fact that the cannabis was for personal use, as that latter matter falls to be dealt with as part of the mitigation.
9. So, we turn to the mitigation. Advocate Gollop referred to the guilty plea and we accept that this was tendered at the earliest possible opportunity and merits a full one third discount as indeed the Crown conceded. Advocate Gollop referred also to the fact that the drugs were for personal use, which we agree is a mitigating factor, and to the cooperation which the defendant had shown with the police on arrest by way of providing all passwords and information so that his affairs could be investigated.
10. But we have to say that these matters alone would not have been sufficient to lead to a non-custodial sentence. What is different in this case is that, as Advocate Gollop has submitted, there is substantial evidence from the probation report, the psychological report, and the references before us, as well as the defendant's letter of remorse, that the defendant is at a turning point and is determined to change his life around. He has employment with excellent prospects, he is providing vital support to his fiancée after the birth some 4 weeks ago of their son in circumstances where, as a result of various matters, she is in need of a particularly high level of support. He has rebuilt the relationship with his 7 year old son and he is now being prescribed medical cannabis for his painful back condition and anxiety, thereby reducing the chances of reoffending by growing or purchasing illegal cannabis.
11. In short, we think that it would not be in the community's best interests for this defendant to be sent to prison at this stage. We think it would run the risk of undoing all the progress which has been made and which we believe has real prospects of being maintained for the reasons set out in the papers before us. We are therefore willing, unusually, to proceed by way of non-custodial sentence.
12. The sentence is as follows. On Count 1, 50 hours' Community Service; on Count 2, no penalty; on Count 3, 50 hours' Community Service concurrent; on Count 4, 210 hours' Community Service concurrent, that is the equivalent of 15 months' imprisonment. We have calculated that figure by taking a starting point of 2½ years, allowed a full on third discount for the guilty plea and then a further 5 months for the personal use and other mitigation. Count 5, 180 hours' Community Service also concurrent, so the total therefore is 210 hours' Community Service.
13. Now Mr Hall let me say this directly to you. You have been fortunate that the Court is imposing a, non-custodial sentence rather than a prison sentence. But let me make it clear to you that if you reoffend, so you come back before us, or if you do not complete the Community Service properly and fully by doing exactly what you are told, and when, and turning up when required, then you can be brought back to this court, and if you do we can foresee only one outcome - that you will be sent to prison. So, it is up to you. If you perform the Community Service to the letter and in good spirit, then we will not see you again and we hope very much that everything we have read turns out to be correct and that you really are determined to turn your life around. You clearly have much ability; it is said in the probation report that you have great talent if only you can apply it in the right direction. So far you have applied it in entirely the wrong direction, but hopefully that is going to change; so we hope that is the case.
14. We also order the forfeiture and destruction of the drugs and of the drug paraphernalia.
Authorities
Campbell, Molloy & MacKenzie v AG [1995] JLR 136
AG v Read [2012] (1) JLR Note 12.
AG v Louis, Louis & Le Jehan [2017] JRC 182
AG v Hall [2013 ]JRC 248