Jersey Unreported Judgments

[2011]JRC171

Royal Court

(Samedi)

31 August 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Morgan, Fisher, Milner and Liddiard.

The Attorney General

-v-

Colin MacKenzie

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10^th June, 2011, following a guilty plea to the following charges:

4 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1, 3, 4 and 7).
2 counts of:	Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Counts 2 and 5).

Age:  35.

Plea: Guilty.

Details of Offence:

Police watched MacKenzie for an evening and saw him go back and forth from the Bond Public House, to his home which was nearby and to meet various people, at Pier Road and New Street.  He was arrested and dropped some ecstasy tablets.  His house was searched and diazepam was found in a rucksack in his room.  The other drugs were found on his person. 

Details of Mitigation:

Guilty plea; progress/use on time in prison; past drug issues exacerbated by his mother's death. 

Previous Convictions:

Previous for possession of drugs in 1994, 1997 and 2006, including an offence of possession in HMP. 

Conclusions:

The Crown sought a 7 year starting point for the possession with intent to supply ecstasy, even though it was personal use, following Shahnowaz-v-AG [2007] JLR 221. 

The Crown also sought a 1 year Valler uplift for the possession with intent to supply diazepam. 

Count 1:	No separate penalty.
Count 2:	Starting point 8 years' imprisonment.  4 years' imprisonment.
Count 3:	1 week's imprisonment, concurrent.
Count 4:	No separate penalty.
Count 5:	2 years' imprisonment, concurrent.
Count 7:	1 week's imprisonment, concurrent.

Total:  4 years' imprisonment. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

The Court heard the case together with the case of Sebastian Richards which was also being sentenced the same day, because the same issues as to approach to sentencing arose in both.  The issues were:-

1.     Whether a Valler uplift should be applied, and

2.     Whether cases of social supply should be subject to the same starting points used in commercial cases.

The Court adopted a starting point of 7 years but declined to adopt a Valler uplift.  The Court followed the Crown's conclusions with the exception of Count 2. 

Count 1:	No separate penalty.
Count 2:	Starting point 7 years' imprisonment.  3½ years' imprisonment.
Count 3:	1 week's imprisonment, concurrent.
Count 4:	No separate penalty.
Count 5:	2 years' imprisonment, concurrent.
Count 7:	1 week's imprisonment, concurrent.

Total:  3½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

Mrs R. C. L. Morley-Kirk, Crown Advocate.

Advocate A. D. Field for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        In this case the Court has decided to follow the unusual course of hearing the two sentencing cases, the case of AG-v-McKenzie and the case of AG-v-Richards, at the same time.  This was because similar issues of law and sentencing policy arose in both cases and it was convenient to do so to ensure that all the arguments in relation to those issues could be ventilated and also to ensure that there was no possibility of the Court reaching conflicting decisions on the same afternoon.  It is noted that on occasions this practice has been adopted by the Court of Appeal, indeed in the case of Bonnar and Noon-v-AG [2001] JLR 626, to which we have been referred so frequently this afternoon.  We wish to make it quite clear that the facts of the two cases have been considered entirely separately; the Jurats are well able to do this having regard to their experience and the nature of the duties they are regularly called upon to acquit.  An alternative might have been to appoint Advocate Bell as a amicus curie in the first case and he could then have advanced the same type of arguments, or in theory, even inconsistent arguments a few minutes later in the second case, that seemed to us to be artificial and that is why we have adopted the course that we have.  Issues of law have been ventilated in some detail this afternoon and I propose to deliver the reasons for the Court's decision in relation to those issues at a later date and it will be done as soon as possible. 

2.        You are here to be sentenced on a number of drugs offences, the most serious of which is Count 2, the possession of ecstasy with intent to supply.  We are going to apply a starting point of 7 years' imprisonment for this offence.  We are not going to apply what is called a Valler uplift in relation to the Diazepam charge which is Count 5. 

3.        We have taken into account all the things which your counsel has had to say to us.  We note that the Crown has accepted the majority of the ecstasy tablets were for your own consumption but you were prepared to help and supply friends on what I take to be a "you help me and I will help you" basis.  The Court has given full credit for your guilty plea, has taken into account the references that you put forward, your positive work record; we have had regard to the personal circumstances and particularly the loss of your mother, and that you have completed various courses that you have in prison. 

4.        Having regard to all those factors the Court considers that a sentence of 3½ years' imprisonment is appropriate.  We sentence you, accordingly, to 3½ years' imprisonment on Count 2, 1 week's imprisonment, concurrent, on Count 3, 2 years' imprisonment, concurrent, on Count 5, 1 week's imprisonment, concurrent, on Count 7 and as the Crown has concluded, no separate penalty in relation to Counts 1 and 4.  That makes a total of 3½ years' imprisonment. 

5.        The Court also orders the forfeiture and destruction of the drugs in question. 

Authorities

AG-v-Richards [2011] JRC 170.

Bonnar and Noon-v-AG [2001] JLR 626.

Valler-v-AG 2002/133.

Misuse of Drugs (Jersey) Law 1978.

AG-v-McDonald [2005] JRC 004.

AG-v-Allman-Jones [2010] JRC 230A.

Shahnowaz-v-AG [2007] JLR 221.

AG-v-Oliveira [2008] JRC 124.

AG-v-Buckley [2008] JRC 144.

AG-v-Samson [2008] JRC 201.

AG-v-Dean [2009] JRC 064.