Jersey Unreported Judgments

Superior Number Sentencing - Motoring - Drugs - supply - Class A and Class B

[2021]JRC272

Royal Court

(Samedi)

1 November 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden, Christensen and Austin-Vautier

The Attorney General

-v-

Joshua O'Brien

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 16^th July 2021, following a guilty plea to the following charges:

First Indictment

1 count of:	Driving whilst disqualified, Article 15(4)(b) of the Road Traffic (Jersey), Law, 1956 (Count 3).
1 count of:	Using a motor vehicle uninsured against third party risks, Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey), Law, 1948 (Count 4).
1 count of:	Failure to provide a specimen, contrary to Article 30(7), as amended, of the Road Traffic (Jersey) Law 1956 (Count 5).

Second Indictment

3 counts of:

Being concerned in the supplying of, or in the making of an offer to supply, a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey), Law, 1978 (Counts 1-3).

Age:  33.

Plea: Guilty. 

Details of Offence:

Drug offences

On 9^th March 2020, pursuant to a warrant, police officers searched a flat occupied by the Defendant's partner, at which the Defendant resided from time to time.  The Defendant, his partner and their daughter were present.  During the search of the property an officer found a set of black scales. The scales were analysed and tested positive for traces of cocaine and MDMA.

 

The officers found a tub of creatine powder on top of a cardboard box in a kitchen cupboard.  Creatine is often used as a cutting agent or adulterant with drugs in powder form.  A field test was carried out and the creatine showed a positive reading for cocaine.  On later examination by the States' Analyst the creatine was found not to contain cocaine.

 

Inside the cardboard box containing the tub of creatine was a black plastic lid from the set of scales, two spoons and a plastic cup.  These items were submitted to the States' Analyst who subsequently confirmed that they contained traces of cocaine.

 

A white Samsung mobile telephone was located despite the Defendant initially having told officers he did not own a mobile telephone.  An officer placed the telephone on a table whilst the search was conducted.  When he returned to seize the telephone, it had been moved and it was found under a cushion on the sofa on which the Defendant was sitting.  The Defendant was arrested, and he made no reply to caution.

 

The Defendant's telephone was forensically examined.  'WhatsApp' messages were discovered which showed the Defendant being concerned in the supply of or in the making of offers to supply cocaine, MDMA and cannabis.

 

A Customs Officer provided a drug trafficking expert report.  Further to her interpretation of the telecommunications evidence, she opined that the Defendant was a drug user who also regularly supplied associates with grams of cannabis, cocaine and MDMA.

 

The drug expert was unable to place a value for the drugs supplied by the Defendant during the Indictment period as it was often unclear what the exact commodity and quantity of drugs was that was being discussed or changing hands.

 

Driving offences

In light of the guilty pleas to the drug offences, the Crown reconsidered the public interest test and found it was no longer met in respect of Count 1 and Count 2 of the First Indictment. 

 

On 15^th August 2020, whilst driving along St Saviours Road, PC Morris saw the Defendant drive past in the opposite direction in a white van.  PC Morris was aware that the Defendant had been disqualified from driving and notified force control following which PC Ball drove to the Hydropool carpark on La Rue Le Masurier.  PC Ball located a white van and noticed the Defendant standing nearby.  PC Ball asked the Defendant where he had been, to which the Defendant replied, "its none of your business".  PC Ball checked the van's exhaust which was "hot to touch", and both the back and front tyres were warm.  The Defendant was arrested, made no reply to caution and was taken to Police Headquarters.

 

On arrival at Police Headquarters, PC Morris could smell intoxicants on the Defendant's breath following which he was arrested for drink driving.

 

Police officers tried to conduct the breathalyser procedure, which included several questions.  The Defendant answered no comment to all questions.  When requested to provide two specimens of breath he said, "not until I speak to a lawyer".  The Defendant was told the procedure could not be delayed for legal advice, despite this the Defendant continued to refuse - accordingly no breath sample was obtained. 

 

The registered owner of the white van has been identified.  He has confirmed that the vehicle had not been stolen.  He has refused to name who had been using the vehicle on 15 August 2020.  At the material time the Defendant did not hold a driving licence and he was not insured to drive the vehicle.

Details of Mitigation:

The Defendant's letter of remorse acknowledged damage caused and expressed his sincere remorse.

 

The fact that the Defendant had no previous convictions for supply of drugs.  The Defendant had seemingly turned a corner in respect of his offending.  It had been 2 and half years since his last conviction.

 

In relation to driving offences, it was argued by defence counsel in relation to the guilty plea on indictment for driving offences he should be given full credit.

 

In relation to the drug offences, it was submitted that his role was as a social supplier to his friends. The supply of drugs was not on a big scale or over a long period.  He maintains that he did not make any profit.

 

Spared the Court the time and expense of a three-day trial by pleading guilty even though this was indicated late.

Previous Convictions:

The Defendant has 27 convictions for 98 offences including three previous convictions as an adult for driving whilst disqualified in 2009, 2016 and 2018.

Conclusions:

First Indictment

Count 3:	12 months' imprisonment and disqualification from driving for 3 years.
Count 4:	15 months' imprisonment and disqualification from driving for 3 years, concurrent.
Count 5:	4 months' imprisonment and disqualification from driving for 2 years, concurrent.

Total:  15 months' imprisonment, and disqualification from driving for 3 years, consecutive to Second Indictment

Second Indictment

Count 1:	Starting point 7 years' imprisonment.  5 years' imprisonment.
Count 2:	Starting point 8 years' imprisonment.  6 years' imprisonment, concurrent.
Count 3:	3 month's imprisonment, concurrent.

Total:  6 years' imprisonment.

Grand total:  7 years and 3 months' imprisonment and disqualification from driving for 3 years.

Sentence and Observations of Court:

Conclusions granted. 

M. L. Preston Esq., Crown Advocate.

Advocate F. L. Pinel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Joshua O'Brien you are 33 years old, you fall to be sentenced for serious offences involving the supply of drugs and motoring offences, the latter being aggravated by your recent convictions in 2016 and 2018 for similar offences, particularly driving whilst disqualified and driving without insurance.

2.        We start with the indictment containing the three drugs offences, namely being concerned in the supply of cocaine, being concerned in the supply of MDMA and being concerned in the supply of cannabis.  On 9^th March 2020, the police executed a search warrant at the address which you shared from time to time with your then partner.  They found scales and other paraphernalia associated with drug dealing.  The scales tested positive for traces of cocaine and MDMA; creatine, a cutting agent for adulterating drugs was also discovered; and spoons and a cup were found containing traces of cocaine.  You attempted to hide your mobile telephone during the course of the search.  That phone was subsequently forensically examined after your arrest and WhatsApp messages were discovered which showed that you had been supplying cocaine, MDMA and cannabis to others.  For example, you were suppling your friend "Nose", as you called him on your phone, with cannabis resin which you described as "poo" in your messages for cash.  In early 2020, you were willing to supply him with a gram of cocaine from your holding of five grams of that drug and you agreed to sell Nose 0.5 grams for £80.  You were offering to supply MDMA to another contact called "Town Bag" and also supplying that person with herbal cannabis.  You offered to supply a third contact with MDMA, and a fourth contact you stored as "levi" on your phone, with MDMA, to him or to anyone else he knew.  A fifth you offered to supply MDMA, cocaine and cannabis; and a sixth you offered to supply cocaine and you differentiated in your messages between high quality cocaine which you were prepared to sell for £200 per gram and low quality cocaine at £100 for half a gram; the offer was made to this "wobba bobba", as you stored him on your phone, or anyone else he knew.  Your counsel correctly says that the offers to sell class A drugs were made only over a period of a few days in early 2020. 

3.        The Crown's drug expert was unable to state the exact quantity of drugs that was being discussed or changing hands, but your messages were analysed, and we have seen the product of that analysis which we accept.

4.        You were uncooperative with the police.  You made no comment in interview, you refused to sign a bank disclosure form and refused to provide the pin number for your mobile telephone.  You were also uncooperative with the Courts in terms of delaying your final admission of guilt to the offences, to which we will return. 

5.        As regards the offences of driving a motor vehicle whilst disqualified, driving without insurance and failing to provide a specimen for analysis, on 15^th August 2020 police saw you driving a white van in St Saviour's.  They knew you had been disqualified.  They followed you and found you standing by the van.  The police officer asked you where you had been and you replied, "Its none of your business".  The van's exhaust was hot to touch, and both back and front tyres were warm.  You were arrested and cautioned and taken to Police Headquarters.  There you were arrested for suspicion of drink driving.  You failed to answer the questions during the breathalyser procedure and refused to provide specimens of breath.  When interviewed you made no comment. 

6.        When you first appeared before the Magistrate's Court you did enter a guilty plea in relation to the failure to provide a specimen of breath, but not guilty pleas in relation to the other two driving offences.  You changed those pleas to guilty on 22^nd September 2020 and the Magistrate sent you to this Court because the Magistrate felt that their powers to deal with you were insufficient. 

7.        In this Court, you entered not guilty pleas to Counts 1 and 2 on the drugs indictment on 12^th February 2021, and trial dates were fixed for 6^th to 8^th July 2021.  On 2^nd July 2021, just five days before your trial was due to begin, you entered a guilty plea to those offences on a particular factual basis. 

8.        Accordingly, your credit for your pleas in relation to the two main offences on this Indictment is very limited and we agree it should be restricted in the way that the Crown describe.  We note that in England and Wales pleas as late as this normally attract a discount of approximately 10%.  Though we do not think it is necessary to adopt such a hard and fast rule in this jurisdiction in relation to credit for a late plea, we think that discounts in that region for guilty pleas entered at the door of the Court will be appropriate in most cases. 

9.        According to your basis of plea, which the Crown reject in certain particulars, you accept being concerned in the supply of 3.5 grams of cocaine as set out in various messages to which we have been referred, 10 grams of MDMA and 37 grams of cannabis resin.  It was clear that these transactions were being carried out by you for money, so on a commercial basis, to people that you knew. 

10.      We reject the assertion that you were a mere social supplier of drugs.  The messages sent and received are not consistent with that.  As the Crown say, you seem to be under a misapprehension that there is a difference in terms of seriousness between selling drugs to friends and selling drugs commercially.  Selling drugs to friends is selling drugs commercially.  The Court has previously held that any cash sale will be treated as commercial dealing and therefore fall within the guidelines in Rimmer v AG [2001] JLR 373. 

11.      We agree with the Crown's assessment of the appropriate starting points.  Your advocate accepts these starting points, those are 7 years' imprisonment at Count 1; and 8 years at Count 2.  As to Count 3 we note the basis of plea accepts 37 grams of cannabis resin whilst the evidence suggests that you were involved in sourcing for your own use and commercial supply a quantity at three times that amount. 

12.      You are a high risk of reoffending according to the Probation Service.  We agree, as we have said, that your guilty pleas shall attract a small discount.  The full one third reduction for a plea is reserved to those who plead guilty at the earliest opportunity - which is now, since 1^st October 2021, on presentation at the Magistrate's Court in most circumstances but in your case was at the first appearance in this case.  Having entered a not guilty plea in this Court you pleaded guilty with one working day to go before the trial was due to begin.  You finally changed your plea to guilty on Friday 2^nd July 2021, with the trial due to begin on the following Tuesday.  All preparation for trial had been completed over several months and the police and customs and witnesses warned to appear, but a trial was avoided, and you get credit to the extent we have described. 

13.      We agree with the Crown that in those circumstances your guilty pleas warrant the reduction of no more than one year from the starting points identified at Count 1 and Count 2.  You have been given a further discount reflecting all the things that have been said on your behalf and written so well on your behalf by others including you in your letter of remorse.  People speak about your strong work ethic and tell us that there is a completely different side to you, and we have taken full account of what those references said. 

14.      As to the motoring offences, you have convictions for similar offences particularly in 2016 and 2018, and in 2018 in relation to offences disposed of in this Court, driving whilst disqualified and driving without insurance, the Court felt that the mitigation available to you had been exhausted and the Court called your record "appalling".  We agree with the Crown that you appear to drive without a licence or insurance when it suits you and without any thought for others. 

15.      Accordingly, we grant the Crown's conclusions and on the drugs Indictment Count 1, the cocaine count you will be sentenced to 5 years' imprisonment.  Count 2, MDMA, 6 years' imprisonment; Count 3, cannabis resin, 3 months' imprisonment, all to run concurrently making a total of 6 years' imprisonment.  On the motoring Indictment you will be sentenced on Count 3, driving whilst disqualified, 12 months' imprisonment and 3 years' disqualification from driving.  Count 4, no insurance, 15 months' imprisonment and 3 years' disqualification.  Count 5, failure to provide a specimen, 4 months in custody and 2 years' disqualification, all to run concurrent to each other, but consecutive to the drugs Indictment making a total of 7 years and 3 months' imprisonment. 

16.      We enter not guilty verdicts on Count 1 and 2 on the motoring indictment.  We order a driving licence retest in relation to the relevant counts. 

Authorities

Rimmer v AG [2001] JLR 373.

Campbell v AG [1995] JLR 136

Miah and Lihou v AG [2003] JCA 135

Carter v AG [1994] JCA 192

AG v Page [2012] JRC 006A

AG v O'Brien [2018] JRC 106.