Jersey Unreported Judgments

[2008]JRC144

ROYAL COURT

(Samedi Division)

29^th August 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Brocq and Tibbo.

The Attorney General

-v-

Lee Thomas John Buckley

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

First Indictment

1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).
2 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 1 and 2).

Second Indictment

1 count of:

Acquiring or having possession of property representing the proceeds of drug trafficking, contrary to Article 38(1) of the Drug Trafficking Offences (Jersey) Law 1988.  (Count 1).

Age:31.

Plea:Guilty.

Details of Offence:

First Indictment

Buckley was seen in a shop in St Helier passing a small package to Nikki Isobel Manson (see AG v Manson [2008] JRC 108).  The Police arrested both individuals and Manson dropped a package and tried to kick it into the street.  The package was seized and found to contain 692 milligrams of heroin containing 16% by weight of diamorphine.  The wholesale value was £100-£150.  The street value, on the basis that there was sufficient heroin to make 14 "street deal bags", sold at £50 per bag, was £700.  It was accepted that Manson had paid Buckley £100 for the heroin (Count 1).  Buckley was searched and was found to be in possession of a further 52 milligrams of heroin consistent with a "50 bag" and consisting of 33% by weight of diamorphine (Count 2).  A search of his house revealed 15.98 grams of cannabis (Count 3) and cash in the sum of £1,420.

Buckley initially declined to answer questions but subsequently claimed that the heroin etcetera found on him was for personal use.  He also admitted that the cannabis was his.  He declined to answer any questions in relation to having supplied Manson.

Second Indictment

Whilst on bail pending Indictment on the above Counts, Buckley attended, at night, at a property in the country with a co-defendant.  The property was under Police surveillance.  Buckley and the co-defendant entered the garden of the property and was seen to be rummaging around the hedgerows etcetera.  As they left the garden Police Officers went to arrest the two men, but Buckley ran away and was not detained.  He was in breach of his curfew and an arrest order was made subsequently by the Magistrate's Court.  He subsequently handed himself into the Police and again in interview declined to answer questions.  He subsequently provided a factual basis for a guilty plea to the extent that he had been asked by a third party, who he was not prepared to name, to go and collect some money that had been concealed within the garden of the property.  He did this and collected approximately £200.  He ran away when he saw the Police and threw the money away.  He knew that the monies were the proceeds of drug trafficking.

On the First Indictment the Crown took the view that an appropriate starting point would be one of 6 years having reviewed the authorities.  The Count on the Second Indictment was not susceptible to the starting point approach to sentencing.  The Crown, however, sought a consecutive sentence.

Details of Mitigation:

In the Crown's view, Buckley had the benefit of his guilty pleas but not the benefit of youth or good character.  Whilst initially not co-operative he had subsequently produced a factual basis for the guilty pleas entered by him.  He had also expressed remorse and had the benefit of good character references and had made efforts, whilst on remand, to rid himself of his addiction.

The Defence agreed with a starting point of 6 years.  They maintained that no profit had been made by Buckley in relation to the supply of heroin.  The issue of delay was also raised.  He had been co-operative by providing a factual basis for his guilty pleas.  This was particularly relevant to the Second Indictment.  He had the benefit of his guilty plea.  There was support in the reports for a non-custodial option.  He had the benefit of the support of his parents and it was accepted that he did not have an attractive criminal record.

Previous Convictions:

Buckley had a total of 5 convictions for 35 offences including offences of violence, dishonesty, motoring, possession of controlled drugs, possession with intent to supply controlled drugs and public order offences.

Conclusions:

First Indictment

Count 1:	3 years' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent.

Second Indictment

Count 1:

6 months' imprisonment, consecutive to First Indictment.

Total:  3 years' 6 months' imprisonment.

Forfeiture and destruction of drugs sought.

The Crown also sought a confiscation order in the sum of £1,529.  This was initially opposed but subsequently agreed by the defendant and, therefore, ordered by the Court on the 5^th September, 2008.

Sentence and Observations of Court:

First Indictment

Count 1:	3 years' probation.
Count 2:	3 years' probation, concurrent.
Count 3:	3 years' probation, concurrent.

Second Indictment

Count 1:

3 years' probation, concurrent to First Indictment.

Total:  3 years' probation.

The defendant was a 31 year old drug addict who was facing 4 offences.  The last offence had been committed whilst on bail.  A specific factual basis had been put forward and agreed for the supply of heroin.  The supply was to a fellow addict who had paid £100.  The Court quoted from Crown Advocate Whelan's text and stated that it felt that the Crown had been in error in recommending a sentence less than 7 years.  The Court's view was that such a departure should only be permitted in exceptional cases.  In relation to the Article 38 offence there was no guidelines for sentencing.  The Court had noted the guidance provided in the case of AG v Fagan.  Whilst the Crown's conclusions were fully justified and appropriate, the Court was going to take a very exceptional step and impose a 3 year probation order with specific conditions.  The Court felt that Buckley was at a crossroads with his addiction and had been impressed with his letter.  The Court was prepared to give him one last chance to overcome his addiction.  If there was any failure then the alternative would be custody.  The Court noted that there had been some delay but made no criticism of the Prosecution for that delay. 

The probation order is to follow the usual conditions together with the following specific additional conditions:

1. To attend Alcohol and Drugs Service for 12 months and comply with any directions of the Alcohol and Drugs service.

2. To take any other programmes the Probation Officer may require Buckley to undertake.

3. For the whole period of 3 years to remain absent from all non-prescribed drugs, to be confirmed by random drugs tests.  A single failure of the random drugs test would result in a breach of probation.

Forfeiture and destruction of drugs ordered.

J. C. Gollop, Esq., Crown Advocate.

Advocate M. H. Temple for the Defendant.

JUDGMENT

THE Commissioner:

1.        The defendant is a 31 year old drug addict with a poor criminal record, who stands to be sentenced for four offences involving the supply of heroin to a fellow addict; possession of heroin for personal use; possession of cannabis for personal use; and finally, acquiring or possessing approximately £200, being the proceeds of drug trafficking.  The latter offence was aggravated by his being on bail at the time. 

2.        Taking the most serious offence of supplying heroin, the defendant has provided a specific factual basis for his plea, and indeed on the other counts, which in relation to the supply, was that in order to help a fellow addict at a time when supply in the Island was low, he obtained low quality heroin for £200 (approximately 0.7 of a gram) which he intended to split with her at cost, for which purpose he borrowed some scales from a friend.  The amounts supplied to the fellow addict was approximately 0.375 of a gram. 

3.        The Crown have referred to Whelan On Sentencing which says at paragraph 151(b):-

"It has now become apparent from observations of the Superior Number in Miah and Lihou [2003] JCA 135 that an argument that 'social' supply (i.e. on an allegedly non-profit basis) does not amount to commercial trafficking is unlikely usually to find favour.  Any cash sale is likely to be treated as commercial dealing, so as to come within the Rimmer guideline, although "a very tiny supply well below one gram" might justify a starting point below the guideline.  The Court put the matter this way: "The sad fact is that much of the retail dealing in the island is done by one heroin addict to another.  It is simply not possible for the Court to know, in most cases, whether an individual sale is profitable or not.  Such a matter lies wholly in the knowledge of the seller and he or she is most unlikely to admit the truth of the matter if it were to affect sentence."" 

4.        The Courts in Campbell and Rimmer have made it clear that it will be seldom for the starting point for any amount of drugs to be below 7 years.  Given the lack of profit and the amount supplied, the Crown move for a starting point of 6 years.  We do think that the Crown are in error for doing so, as the authorities are clear.  The lack of profit and the amount concerned here would not ordinarily constitute grounds from departing from the 7 years starting point, in our view. 

5.        Of the other offences, the Crown move that the Article 38 offence should attract a consecutive sentence.  There are no guidelines for this offence.  A third party, who he has not been prepared to name, asked the defendant to retrieve a few hundred pounds, which had been secreted in the house of a Jason Bayliss, who was on remand for drugs offences.  The defendant knew that the money represented the proceeds of crime.  He approached the property at night but after retrieving the money, panicked when disturbed by the police and ran off.  The money was thrown away and lost.  We agree that a consecutive sentence would ordinarily be appropriate. 

6.        In terms of mitigation the defendant has pleaded guilty and has been cooperative.  In our view he effectively wrote his Indictment in relation to the Article 38 offence.  He has many moving letters of support. 

7.        Whilst the conclusion of the Crown would ordinarily be appropriate, we are prepared in this case as an act of mercy to take the very exceptional step of considering the imposition of a 3 year probation order on condition that the defendant remains drug-free and submits himself to random testing for the whole of that period.  We do so because we feel that the defendant is at a crossroads.  The route of all of your problems is your addiction to heroin which you have acknowledged in your letter, with which we have been very impressed.  You describe it as an awful affliction, which we agree it is, causing misery not only to you but to your family, and you have expressed a deep sense of shame.  You have always had, and continue to have, the support of your family, who in no way condone your addiction, and you have asked to be given what would be a last chance to beat this addiction, with the support of your family and the Drugs and Alcohol Service. 

8.        You should be under no illusion that if there is any breach of these conditions, if they are accepted by you, you will be returned to this Court and would likely face a custodial sentence.  In considering this exceptional course, we have also taken into account the fact that you have been in custody since the 10^th March and there has been a considerable delay.  We make no criticism of the Prosecution in that respect but it is a fact that the case against you has been long delayed.

9.        I am going to read the conditions Mr Temple that the Court would wish to impose so that you can take instructions on whether those conditions are going to be accepted, because you and the defendant need to be clear that if they are not accepted then the Court would otherwise be considering the conclusions of the Crown.  The three conditions are that the defendant will attend the Alcohol and Drugs Service for a period of 12 months as directed by the Probation Officer and comply with all treatment goals and testing as required by the service.  That, in fact, is a standard condition.  Secondly, that he will attend any other programmes that the Probation Officer may require.  The third condition is that for the whole of the period of probation of 3 years, the defendant will be abstinent from all non-prescribed medication, to be confirmed by random drug testing.  For the avoidance of doubt:-

(i)        This condition applies notwithstanding that the defendant may have completed the various programmes directed by the Probation Office; and

(ii)       a single failure of a drug test will constitute a breach of probation. 

[Conditions accepted]

10.      Mr Buckley, you are sentenced as follows on all of the counts in the First and Second Indictment; to 3 years' probation, concurrent on the usual conditions but conditional upon the following in addition to the usual conditions; that you attend the Alcohol and Drugs Service for a period of 12 months' as directed by the Probation Officer and comply with all treatment, goals and testing as required by the Service; that you will attend any other programmes that the Probation Officer may direct; that for whole of the period of the probation of 3 years' you will be abstinent from all non-prescribed medication to be confirmed by random drug testing.  For the avoidance of doubt, this condition applies notwithstanding that you may have completed, any programmes directed by the Probation Officer and any single failure of a drug test will constitute a breach of probation. 

11.      We order the forfeiture and destruction of the drugs

Authorities

Whelan Aspects of Sentencing in the Superior Court of Jersey.

Rimmer, Lusk and Bade-v-AG [2001] JLR 373.

Campbell, Molloy and MacKenzie -v- AG [1995] JLR 136.

AG v Manson [2008] JRC 108.

Drug Trafficking Offences (Jersey) Law 1988.

Miah and Lihou v AG [2003] JCA 135.

AG v Fagan [2005] JRC031.

AG v Fowler and Fowler [2006] JRC 175.