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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Cauvain [2021] JRC 306 (08 December 2021)
URL: http://www.bailii.org/je/cases/UR/2021/2021_306.html
Cite as: [2021] JRC 306
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Superior Number Sentencing - drugs - supply - Class A - assault.
|
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Christensen M.B.E., Dulake and Cornish. |
The Attorney General
-v-
Joshua James Cauvain
Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 29th October 2021, following guilty pleas to the following charges:
First Indictment
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2 counts of: |
Possessing a controlled drug with intent to supply contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 1 and Count 2). |
Second Indictment
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1 count of: |
Assault (Count 1). |
Age: 19.
Plea: Guilty.
Details of Offence:
The assault
Shortly before 8:30pm on Tuesday 17th November 2020, the Police received a report from the Complainant who made a formal complaint that he had been kicked in the back as he was walking along Cattle Street. The Complainant had been walking through town and as he passed McDonald's restaurant on Halkett Street, a group of youths, including the Defendant, started to follow him and shout abuse at him.
The Defendant walked away from the group and onto Cattle Street. He then felt a kick in his back which caused him to stumble forwards. The Complainant then ran along Cattle Street, onto Minden Place and up Bath Street. On Bath Street he ran into the Globe Public House and called the Police. The group of youths, including the Defendant, ran after the Complainant. The kick and subsequent chase were captured by Police CCTV cameras and the Defendant was identified as the assailant when the footage was reviewed by Police Officers.
The drug offences
On Wednesday 9th December 2020, Police attended at the Defendant's home address to arrest the Defendant in relation to the above allegation of assault. After his arrest and caution the Defendant's room was searched and a mobile phone and wallet were seized.
The Defendant was transported to Police Headquarters and during the booking in process Police Officers found a wrap of white powder in the Defendant's wallet. He was further arrested for possession of a controlled drug.
Following the seizure of suspected drugs while in Police Custody, an Article 20(1) search was authorised for the Defendant's room at Strathmore. During the search a packet marked 'MAC' was seized from a safe within the Defendant's wardrobe. The packet contained white powder and tablets. In total the Defendant was in possession with intent to supply 7 MDMA tablets and 31.17 grams of MDMA. The Crown accepted that he had been a "minder" since receiving the drugs on 7th December 2020 and would return them to the same person who was to onward supply the drugs.
Details of Mitigation:
Guilty pleas, youth, previous good character.
Previous Convictions:
No previous convictions (although there is a Magistrate's Court conviction post-dating this offending).
Conclusions:
First Indictment
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Count 1: |
Starting point 8 years' imprisonment. 480 hours' Community Service Order equivalent to 3 years and 2 months' youth detention plus a 2 year Probation Order. |
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Count 2: |
Starting point 7 years' imprisonment. 456 hours' Community Service Order equivalent to 3 years youth detention plus a 2 year Probation Order, concurrent. |
Second Indictment
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Count 1: |
50 hours' Community Service Order equivalent to 1 months' youth detention, concurrent. |
Total: 480 hours' Community Service Order equivalent to 3 years and 2 months' youth detention plus a 2 year Probation Order
Forfeiture and destruction of the drugs sought.
Sentence and Observations of Court:
Conclusions granted.
C. R. Baglin Esq., Crown Advocate.
Advocate A. M. Harrison for the Defendant.
JUDGMENT
THE commissioner:
1. The Defendant stands to be sentenced for two counts for possession of MDMA, a Class A drug, with intent to supply, and one count of common assault. The MDMA was found in his wallet and after a search of his bedroom following his arrest for an unconnected common assault in which he kicked the victim in the back and chased him in St. Helier.
2. In total the defendant was found in possession of 7 MDMA tablets and 31.17 grams of MDMA powder. The tablets have a street value of between £140 and £210 and the MDMA powder of between £2,480 and £3,720. It is accepted by the Crown that the defendant was minding these drugs for another person.
3. Under the guidelines in Rimmer v AG [2001] JLR 373 the starting point for the MDMA powder is between 8 and 10 years' imprisonment. Under the guidelines in Bonner & Anor v AG [2001] JLR 626 the starting point for MDMA tablets is between 7 and 9 years' imprisonment. The Crown has taken a starting point of 8 years' imprisonment for the MDMA powder and 7 years' imprisonment for the MDMA tablets. A sentencing band of between 1 and 12 months would apply to the common assault.
4. The Defendant was 18 at the date of the offending and under 21 at the time of his conviction and therefore benefits from the provisions of the Criminal Justice (Young Offenders) (Jersey) Law 2014 which provides that the court shall not pass a sentence of youth detention on a young adult unless it considers:
(i) The person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them.
(ii) Only a custodial sentence would be adequate to protect the public from serious harm from the person; or
(iii) The offence or the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified.
5. The defendant was of good character at the time of these offences and so Article 4(2)(b)(i) does not apply and nor does Article 4(2)(b)(ii) in that only a custodial sentence can protect the public. We are concerned therefore with Article 4(2)(b)(iii) and having reviewed other similar cases involving young offenders namely AG v Buckley [2021] JRC 222, AG v Burnside [2021] JRC 085, AG v G [2018] JRC 166 and AG v Le Coquiec [2017] JRC 120 the Crown have reached the view that a non-custodial sentence can be justified, taking into account the Defendant's youth, his early guilty plea, his good character and the content and conclusions of the pre-sentencing report.
6. The Crown therefore move for a total sentence of 480 hours' Community Service, which is the equivalent of a sentence of imprisonment or youth detention of 3 years and 2 months, and a 2 year Probation Order.
7. In doing so the Crown suggests that the sentence for the assault should be concurrent. This is a separate offence which ordinarily would attract a consecutive sentence, but because of the principle of totality the Crown moved for it to be dealt with on a concurrent basis.
8. Advocate Harrison for the Defendant suggests that the starting point for the two drugs offences should be reduced by one year respectively because he says of the Defendant's low level of culpability, but we disagree. As the Court of Appeal said in Vipond v AG [2004] JLR Note 24, minders perform a fundamental role in the supply of drugs. We therefore agree with the starting points suggested by the Crown.
9. We also disagree with Advocate Harrison's submission that the common assault could be dealt with by way of probation. In our view, this was a nasty incident which could have resulted in more serious consequences, but in all we accept the conclusions of the Crown as being correct and we therefore sentence the defendant as follows.
10. On Count 1 you are sentenced to 480 hours' Community Service, which is the equivalent of 3 years and 2 months youth detention and to 2 years' probation. On Count 2 you are sentenced to 456 hours community service which is an equivalent of 3 years youth detention and 2 years' probation. Under the Second Indictment for the assault, you are sentenced to 50 hours' Community Service which is an equivalent of 1 month's youth detention, concurrent.
11. This makes a total sentence for all of the counts under both Indictments of 480 hours' Community Service which is the equivalent of 3 years and 2 months' youth detention and to 2 years' probation, and you have 2 years in which to complete the Community Service.
12. We order the forfeiture and destruction of the drugs.
13. We need to make it clear to you Mr Cauvain that if you do not complete the Community Service then you will be brought back before this Court and you will almost certainly then be sentenced to the sentence of imprisonment that we have indicated as the equivalent, but we are very encouraged by the positive steps that you are taking in your life. We hope that you embark on this course at Highlands in catering and we hope that we never see you in Court again.
Authorities
Bonner & Anor v AG [2001] JLR 626
Criminal Justice (Young Offenders) (Jersey) Law 2014
AG v Le Coquiec [2017] JRC 120