Jersey Unreported Judgments

[2010]JRC039

ROYAL COURT

(Samedi Division)

19^th February 2010

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats Morgan and Kerley.

The Attorney General

-v-

Lene Pestana Hilario

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

1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
5 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 3, 4, 5, 6 and 8).

Age:  27.

Plea: Guilty.

Details of Offence:

Hilario was a front seat passenger in a vehicle which was stopped and when searched found to be in possession of 5 wraps of heroin (Count 2) weighing a total of 386 milligrams.  Street value of £450.  Also found in possession of 4.58 grams of cannabis resin (Count 3) with a street value of between £20 and £30, 2.69 grams of herbal cannabis (Count 4) with a street value of £35-30, and 3 Diazepam tablets (Count 5), street value £15-30.

A search was subsequently undertaken of his home address and various pieces of cannabis found weighing a total of 164.56 grams, street value £940 (Count 6).  Six Diazepam tablets were also found.  They had a value of £13-60 (Count 8). 

Hilario was co-operative in interview making full admissions.  He admitted possession of the heroin but claimed that he was "minding it" for a person he was not prepared to name.  His role was to hide it.  He was not to benefit or use the heroin nor was he to be paid for providing this service.  The herbal cannabis and diazepam found on him were all for personal use.  He had a heavy cannabis habit and he had purchased it so he would have a ready supply over the forthcoming month.  The 6 diazepam tablets were for his own personal use. 

The Crown accepted the factual basis put forward for the heroin and for the cannabis found at the flat.  The Crown took a "starting point" of 5 years for the heroin (Count 2). 

Details of Mitigation:

The Crown

The Crown has accepted that for the purposes of the heroin he was a "minder" or "caretaker".  Benefit of guilty plea entered on Indictment.  Co-operative with the police and gave consistent account as to his dealings with the drugs seized.  The Crown considered him to be a relatively young man.  Entitled to some credit for residual youth.  He did not have the benefit of good character.  Expressed regret and remorse.  Assessed at high risk of re-offending.  The Crown's view was that a custodial sentence was appropriate.  Sentences for the various counts to be concurrent.

Defence

Facts set out clearly by Crown and accepted that Count 2 was the most serious offence.  Using time in prison positively; he had enhanced status.  He was the principal carer for his sick and aging parents.  When employed stayed away from drugs and when unemployed then the cycle of drug abuse and conviction followed.  He needed help and support to overcome his drug problems.  Suggested "starting point" sought by the Crown was too high.  Commended non-custodial recommendation as contained in the reports as the most suitable option. 

Previous Convictions:

9 convictions for a total of 18 offences including 2 possession of drug offences, grave and criminal assault, common assault, resisting police, possession of an offensive weapon, larceny, public order and motoring.

Conclusions:

Count 2:	2 years' imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	1 month's imprisonment, concurrent.
Count 5:	1 week's imprisonment, concurrent.
Count 6:	4 months' imprisonment, concurrent.
Count 8:	2 weeks' imprisonment, concurrent.

Total:  2 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Hilario was to be sentenced for 5 counts of possession of controlled drugs and 1 count of possession of a Class A drug with intent to supply.  This last count was the most serious.  The Court's approach to sentencing for such an offence normally required a custodial sentence.  In this particular case the Court found some exceptional reasons and it was, therefore, going to give Hilario a chance; last chance to avoid a custodial.  Exceptional reasons found by the Court were as follows:-

(a)   Small amount of Class A.

(b)   Positive recommendation in background reports.

(c)   Court satisfied of genuine expression of remorse.

(d)   He spent 4 months in custody and had received positive reports of behaviour whilst in prison.

The Court noted that he had opportunities in the past and had not taken advantage of them.  He should consider himself very fortunate that he was to be given a further opportunity.  Hilario was aged 27 and the Court commented on the concept of "residual credit" for youth.  Whilst the Court had not heard argument they expressed the view that they doubted whether a person over 21 was entitled to any credit for age.  The Criminal Justice (Young Offenders)(Jersey) Law 1994 distinguished between those under and over 21.  There might be exceptional reasons why somebody up to the age of 23 was deserving of credit.  Here the defendant was age 27 and he should, therefore, have known better.  The Court, therefore, did not take into account any mitigation for youth.  If the Court had imposed a custodial sentence then it agreed with the Crown that 5 years would have been the appropriate "starting point" on Count 2.  The offences were not for personal gain and he was at the bottom end of drug chain.  Finally, had a custodial sentence been imposed then the Court agreed with the Crown that a 2 year sentence would have been appropriate.  The Court warned Hilario of the consequences were he to breach the Court's orders or to re-offend.  He will be returned to Court and almost inevitably sentenced to prison.  The risk was with him.  This was the last chance he was going to be given. 

Count 2:	240 hours' Community Service Order plus a 12 month Probation Order and a 6 month Treatment Order.
Count 3:	50 hours' Community Service Order, concurrent.
Count 4:	50 hours' Community Service Order, concurrent.
Count 5:	40 hours' Community Service Order, concurrent.
Count 6:	100 hours' Community Service Order, concurrent.
Count 8:	40 hours' Community Service Order, concurrent.

Total:  240 hours' Community Service Order plus a 12 month Probation Order and a 6 month Treatment Order. 

Forfeiture and destruction of drugs ordered.

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

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced today on 5 counts of possession of controlled drugs and 1 count of possession of a Class A drug (Heroin) with intent to supply.  The Court takes that last charge clearly as the most serious of the charges which face you and in accordance with practice and normal circumstances approaches any sentencing of possession of Class A drugs with intent to supply as one which requires normally, a custodial sentence. 

2.        In this particular case, the Court has decided that there are some exceptional reasons why we are prepared to give you a chance which should be described as a "last chance" and avoid a custodial sentence being imposed.  Those exceptional reasons really are these:-

(i)        First of all there was a very small amount of Class A drug involved in this case;

(ii)       Secondly, there have been some very positive recommendations from the Probation and the Drug and Alcohol Service as to their recommendations for treatment;

(iii)      Thirdly, the Court is satisfied with some clear evidence of remorse on your part and;

(iv)      Finally, the Court has noted that you have spent 4 months in custody already and that there have been very positive reports in relation to your behaviour in prison while on remand, and the Court has very much taken that into account.

3.        I should say that you have had opportunities in the past of which you have not taken advantage and that is why I emphasise to you again that this is a "last chance" because there will be very unlikely to be any further opportunities in that respect.

4.        You are aged 27 and in those circumstances I want to say just something about this concept of residual credit for youth.  A person is generally entitled to treat his or her youth as a mitigating factor because by reason of that young age the inexperience of the accused reduces his or her culpability.  The concept of residual youth is one with which the Court has some difficulty; no authority was put to us in support of the contention and it has not been one which has been argued, as far as we are aware in any detail and so the comments which this Court makes must be taken against that background; we have not had the benefit of detailed argument on it.  Nonetheless, the Criminal Justice (Young Offenders)(Jersey) Law 1994 distinguishes between those who are aged under and over 21 and the Court is very doubtful about the proposition that a person over the age of 21 is able to claim mitigation for youth.  If there is some area of discretion around the edges it might exceptionally, take into account a person up to the age of 23, if the facts justified a conclusion of particular immaturity in such a person.  At all events in your case, you are 27, and by the age of 27 you should certainly know how to avoid offending in the way that you have and the Court does not take into account, in the sentence which is about to be imposed, any mitigation for the purposes of youth. 

5.        If a custodial sentence had been imposed, we take the view that a 5 year starting point would have been appropriate in relation to Count 2 (possession of Class A drug with intent to supply); we note what has been said by your counsel that you stood to have no personal gain and that your contribution was at the bottom of the drugs chain and indeed, we have proceeded on that basis, nonetheless, we think that the 5 year starting point would have been appropriate and indeed, if a custodial sentence had been imposed, we think that 2 years would have been the sentence which the Court would have imposed on Count 2. 

6.        For the reasons I have given, the exceptional circumstances and in the hope that you are going to turn your life around, the Court is going to impose on Count 2; 240 hours' Community Service Order which you must perform and in addition, impose a Probation Order of 12 months and a 6 month Treatment Order.  In relation to Counts 3 and 4, the sentence is 50 hours' Community Service Order, concurrent on each count, Count 5; 40 hours' Community Service Order, concurrent, Count 6; 100 hours' Community Service Order, concurrent, Count 8; 40 hours' Community Service Order, concurrent.  I emphasise to you that if fail to perform any part of the Community Service Orders or if you fail to act in accordance with the requirements of the Probation and Treatment Orders, then you will be brought back before this Court for sentence on all the counts on the Indictment.  The risk is not with the Court, the risk is with you and you should be very clear that this one chance, and a last chance that you are being given today.  So in all, a sentence of 240 hours' Community Service and a 12 month Probation Order and 6 month Treatment Order.

7.        We order the forfeiture and destruction of the drugs.

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Rimmer and Others-v-AG [2001] JLR 373.

AG-v-Welsh [2000] JLR N 59b.