Jersey Unreported Judgments

Inferior Number Sentencing - drugs - possession - supply - importation - Class B.

[2012]JRC170A

Royal Court

(Samedi)

28 September 2012

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Clapham and Blampied.

The Attorney General

-v-

Chayanne Arthur Sanguy

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

13 counts of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 23 and 24).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 12).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Count 13).

Age:  23.

Plea: Guilty.

Details of Offence:

The police found several foil sachets containing methylethcathinone (a former "legal high" controlled as Class B since 2010) labelled "Jolly Green Granules", cash and dealing paraphernalia in the defendant's bedroom.  The defendant denied selling drugs and refused to answer other questions.  His computer and bank records indicated that over a two month period the defendant had made eleven internet orders of Jolly Green Granules.  In some orders he had specified that the drugs should be wrapped in a T-shirt.  The quantities ordered were of increasing size and came to £2,700 in total (Counts 1-11).  3g of cannabis also found (Count 12).  Sentenced on the basis that he sold up to half of the granules to friends for cash (Count 13). 

Whilst awaiting notification of his court date the defendant ordered two more consignments of a different variant (methylmethcathinone/mephedrone) of the same "substituted cathinone", which were intercepted by Customs (Counts 23 and 24). 

Details of Mitigation:

Youth; mental health problems in childhood; good response to previous Probation Order; no previous convictions; drugs largely for personal use; guilty plea.

Previous Convictions:

None relevant.

Conclusions:

Starting points: Importations : 2 years, Supply 18 months.

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	12 months' imprisonment, concurrent.
Count 5:	12 months' imprisonment, concurrent.
Count 6:	12 months' imprisonment, concurrent.
Count 7:	12 months' imprisonment, concurrent.
Count 8:	12 months' imprisonment, concurrent.
Count 9:	12 months' imprisonment, concurrent.
Count 10:	12 months' imprisonment, concurrent.
Count 11:	12 months' imprisonment, concurrent.
Count 12:	1 month's imprisonment, concurrent.
Count 13:	9 months' imprisonment, concurrent.
Count 23:	12 months' imprisonment, concurrent.
Count 24:	12 months' imprisonment, concurrent.

Total: 12 months' imprisonment. 

Confiscation Order sought in the sum of £970.

Forfeiture and destruction of the drugs and the laptop computer sought.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order.
Count 2:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 3:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 4:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 5:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 6:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 7:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year, Probation Order, concurrent.
Count 8:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 9:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 10:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 11:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 12:	40 hours' Community Service Order or 1 week's imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 13:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 23:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.
Count 24:	180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order, concurrent.

Total: 180 hours' Community Service Order or 12 months' imprisonment in default, plus a 2 year Probation Order.

Confiscation Order made in the sum of £970.

Forfeiture and destruction of the drugs ordered but not the computer.

D. J. Hopwood, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Over a period of two months in 2011 you imported by post, on eleven different occasions the drug cathinone in two forms, methedrone and methylethcathinone.  This drug was formerly one of these legal highs but it has been a Class B controlled drug in Jersey since June 2010.  The total amount of drug that you imported on these occasions was 260 grams.  You were questioned about these importations in September 2011.  Despite this questioning you organised two further postal importations in February 2012, relating to 40 grams.  So the total amount is 300 grams with a retail value of between £6,000 and £12,000.  You were unemployed throughout this period and in receipt of income support but you nevertheless supplied some of these drugs to acquaintances and friends to pay for your habit. 

2.        This Court has not previously had to consider sentencing for offences relating to this particular drug.  Crown Advocate Hopwood has very properly referred us to two English cases, R-v-Wijs [1998] 2 Cr. App. R. 436 and Attorney General's Reference No 15, 16 and 17 of 2012 (R-v-Lewis, Wijtvliet and Vriezen), but the sentencing practice for drug offences in England and Wales differs substantially from that adopted in this jurisdiction and we did not find those cases to be of assistance.  We applied the guidance given by the Court of Appeal in Campbell-v-AG [1995] JLR 136 and we have had regard to the street price.  In Campbell in relation to cannabis it was said there would be a starting point of between 2 and 6 years for cannabis worth between £5,600 and £56,000.  We think that the Crown has therefore adopted the correct starting point in this case, namely one of 2 years by reference to the street price. 

3.        Advocate Bell has urged that there is much mitigation in this case.  He has referred to the guilty plea, although it has to be said that you were not cooperative at the start, but nevertheless your guilty plea was of substantial value in the end.  He has referred to the fact that you have no previous drug convictions, you only have one previous conviction for what was presumably a fairly minor assault.  You have had a number of letters of support, we have read in particular that from your mother, as well as the others; it is a very impressive letter and you have much to be grateful to your mother for.  What is clear from those letters and from the background report is that you are indeed remorseful about what you have done and you are determined to try and change your life.  You have stopped taking drugs and that seems to be verified by the Drug and Alcohol Department and you have ceased associating with the friends who moved in drug circles.  You were 21 at the time and we take that into account; we have also considered very carefully the background report which recommends probation coupled with community service. 

4.        The policy of this Court is well established in relation to the importation/supply of drugs.  It is that a prison sentence will almost invariably follow.  But the Court has made exceptions in respect of Class B drugs where comparatively small amounts are involved and where there is exceptional mitigation.  Advocate Bell has urged that this is one of those cases where we can impose a non-custodial penalty.  As you can see from the time that the Court has been considering the matter in retirement, this is a very finely balanced matter.  On reading the papers it appeared that a custodial sentence was inevitable.  But in the end, not without hesitation, the Court has just been persuaded that the circumstances are sufficiently exceptional to allow us to proceed by a non-custodial penalty. 

5.        The sentence is as follows.  On all the Counts we impose a Probation Order for 2 years, as suggested by the probation report, but you must be punished and we also impose community service of 180 hours on all the counts except Count 12, where we impose 40 hours' community service, concurrent, and we say that the equivalent prison sentence we had in mind was one of 12 months' imprisonment as moved by the Crown.  We note in particular that we impose this sentence also on Count 13.  For some reason, which is not clear to us, the Crown moved for a lesser sentence on Count 13, which was the count of supply; supplying is always serious and it must merit the same sentence as the importation charges. 

6.        So we are not going to send you to prison on this occasion but I must warn you it really is vital that you carry out all the directions you are given to the letter.  The probation report makes it clear there is going to be quite a demanding programme that you have to undertake.  Similarly, the community service requires you to turn up, work hard and do what you are told.  If you fail to comply with the directions of the probation officer or do not turn up, similarly if you do not turn up for your community service or work properly or of course if you reoffend, in any of those cases you will be referred back to this Court.  If you are referred back to this Court there will be only one outcome.  This has been such a finely balanced matter that you have had your chance.  If you are referred back to here you will go to prison, I hope you understand that.  So we are taking a chance on you, we hope very much that you will repay the opportunity you are being given and that is the sentence we impose.

7.        We also order the forfeiture and destruction of the drugs but not the computer. 

Authorities

R-v-Wijs [1998] 2 Cr. App. R. 436.

Attorney General's Reference 15, 16 and 17 of 2012 (R-v-Lewis, Wijtvliet and Vriezen).

Campbell-v-AG [1995] JLR 136.

AG-v-Gaish [2006] JRC 109.

Whelan on Aspects of sentencing in the Superior Court of Jersey.