Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession - possession with intent to supply - possession of utensils - production - Class A and B.

[2013]JRC051

Royal Court

(Samedi)

4 March 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Le Cornu, Olsen, Blampied and de Veulle.

The Attorney General

-v-

John Steven Allardice

Simon Paul Humphrys

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior number on 11^th January, 2013, following guilty pleas to the following charges:

John Steven Allardice

3 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 7, 9 and 11).
3 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 6, 8 and 10).
1 count of:	Possession of utensils for the purposes of committing an offence, contrary to Article 10 of the Misuse of Drugs (Jersey) Law 1978 (Count 12).

Age:  32.

Plea: Guilty.

Details of Offence:

Police officers undertook a search of a flat occupied by the two defendants which they were renovating and living in rent-free.  On the lounge table a number of items of drug paraphernalia were found including a set of digital scales, cutting board with white powder on the surface, two razor blades with white powder on the edges and a rolled up £1 note.  There were also small nuggets of cannabis and smoking debris in an ashtray.  A locked electronic safe was located under the bed in one of the bedrooms.  Three small cannabis plants were found in the airing cupboard and artificial light on a timer had been rigged up for the plants.  The safe was seized and subsequently opened by force as both defendants denied knowing the combination for the safe.  It was found to contain a number of items:-

1. 20.79g white powder containing 14% by weight of cocaine (street value £1,600).

2. 14.39g of brown crystal containing 97% by weight of MDMA (ecstasy) (street value £1,120).

3. "Thai sticks" herbal cannabis weighing 17.60g (street value between £255 and £340).

4. 24.80g of cannabis resin identified as "squidgy black" or Afghan black" (street value between £240 and £360).

5. Smaller pieces of cannabis resin: a total of 4.02g (street value £30).

6. 2.64g herbal cannabis (Thai stick) (street value £30 to £40).

7. A rolled up £20 note secured with a filter end of a cigarette.

8. A lid for a set of digital scales.

9. A quantity of cash and a paying in receipt for a bank account in the name of Allardice.

At an interview under caution Allardice denied all knowledge of the drugs and suggested that the police should speak to Humphrys about the contents of the safe.  Humphrys initially answered "no comment" to all questions but subsequently admitted that some of the money was his but he knew nothing about the drugs in the safe.  The three cannabis plants were his which he was intending to grow his own cannabis from so that he did not have to buy cannabis from other people. 

Prior to Indictment the defendants provided factual basis for certain guilty pleas.  Allardice claimed that he invited a number of people back to the flat for a party and that one of these individuals produced a quantity of illegal drugs which were then used at the flat.  He refused to identify this individual.  In the morning this individual asked Allardice if he could put some items in the safe and Allardice agreed to this without knowing precisely what those items were but suspected that they might have been drugs.  He accepted that at some point in time the cocaine and MDMA would have been returned to this individual.  The larger quantities of herbal and cannabis resin were given to Allardice by Humphrys approximately10 days prior to put in the safe which Allardice had done and again he would have returned those drugs to Humphrys as and when requested to do so.  The remaining pieces of cannabis left in the flat would have been returned to other persons who had been at the party and using cannabis.  He accepted that some of the items of paraphernalia were his and had been used for drug use. 

Humphrys accepted possession of the larger quantities of herbal and cannabis resin found in the safe.  He had given it to Allardice for safe keeping approximately 10 days before the police search.  Humphrys was also growing the cannabis plants for his own supply of cannabis. 

In so far as concerns the two different types of Class A drugs, the Crown had regard to the Rimmer guidelines and also the case of Valler-v-AG and suggested a "starting point" of 9 years' imprisonment for the total quantity of Class A drugs being 35.18g. 

Given the length of time that Humphrys had spent on remand (equivalent of 5 months and 18 days) the Crown took the exceptional step of moving for a non-custodial sentence as recommended by the probation report. 

Details of Mitigation:

The Crown

Guilty plea entered on Indictment.  Did not have benefit of youth or good character.  Previous convictions for drug trafficking offences albeit previously dealt with by Community Service Orders.  Not co-operative in interview.  Considered close to the source of the supply of drugs. 

The Defence

Re: starting point.  It was submitted that he was a temporary custodian for no reward and given his role an 8 year starting point was appropriate with no Valler uplift as the amounts involved were not significant.  Reiterated his low end involvement.  Guilty plea.  Remorseful.  Supportive family.  Adverse effect on his children.  A good work record.  Using time in custody constructively. 

Previous Convictions:

Three convictions for 7 offences including possession of controlled drugs with intent to supply x 2, supplying a controlled drug, concerned in the supply or offering to supply a controlled drug, possession of a controlled drug and breach of previous Community Service Orders. 

Conclusions:

Starting point 9 years' imprisonment.

Count 6:	6 years' imprisonment.
Count 7:	No separate penalty.
Count 8:	6 years' imprisonment, concurrent.
Count 9:	No separate penalty.
Count 10:	6 months' imprisonment, concurrent.
Count 11:	No separate penalty.
Count 12:	6 months' imprisonment, concurrent.

Total: 6 years' imprisonment. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The defendant to be sentenced in respect of an Indictment containing seven charges to which he had entered guilty pleas.  The Court repeated the amounts of drugs involved and their respective street values.  He was to be sentenced on a factual basis provided by counsel which the Court recited albeit it noted that in two respects the account that he had provided via his counsel was inconsistent with the account provided to the probation officer.  The Court was sentencing him on his factual basis provided by counsel but had noted the inconsistencies.  The Crown suggested a starting point of 9 years' imprisonment and the Court agreed that Allardice was on the cusp of two sentencing brackets.  The Court had had regard to his level of involvement and concluded that a correct starting point was one of 8 years' imprisonment.  They confirmed that concurrent sentences would be imposed on the counts.  There was however no basis upon which to depart from the normal policy of a custodial sentence for such offences.  This was the case even where someone like him was simply minding the drugs for those persons who had a greater culpability as it allowed them to evade the authorities resulting in the drugs reaching the streets of Jersey.  There were therefore serious offences.  He was given full discount for his guilty plea.  This was to be his first period of imprisonment.  The Court noted his references and the letter from Allardice and considered that he had shown remorse.  The Court accepted that he was not a dealer of drugs but he had the benefit of the Court imposing non-custodial sentences in the past. 

Starting point 8 years' imprisonment.

Count 6:	4½ years' imprisonment.
Count 7:	No separate penalty.
Count 8:	4½ years' imprisonment, concurrent.
Count 9:	No separate penalty.
Count 10:	6 months' imprisonment, concurrent.
Count 11:	No separate penalty.
Count 12:	6 months' imprisonment, concurrent.

Total: 4½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

Simon Paul Humphrys

1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 11).
1 count of:	Being concerned in the production of a controlled drug, contrary to Article 5(a) of the Misuse of Drugs (Jersey) Law 1978 (Count 13).

Age:  31.

Plea: Guilty.

Details of Offence:

See Allardice above.

Details of Mitigation:

The Crown

Guilty plea on Indictment; no youth or good character; substantial criminal record including three previous drug offences; gap in criminal record noted; uncooperative; spent time on remand; adverse effect on family and stated intention to remain free of cannabis in the future. 

The Defence

Numerous references in support; had significant responsibilities for his family in particular looking after his severely disabled father.  Adverse impact upon his children.  Loss of their home and in debt; time spent on remand was a serious wake-up call.  Previously used cannabis to self-medicate for ADHD condition.  Has finally obtained an understanding of drug misuse.  Supported Crown's conclusions. 

Previous Convictions:

Thirteen convictions for 104 offences including possession of a controlled drug with intent to supply x 2, possession of a controlled drug, assault on police, resisting arrest, receiving stolen goods, drunk and disorderly and multiple motoring offences such as no insurance, TADA. 

Conclusions:

The Crown also suggested alternative custodial conclusions if the Court was so minded being 2 month' imprisonment for Count 11 and 6 months' imprisonment, concurrent for Count 13. 

Starting point 9 years' imprisonment.

Count 11:	12 months' Binding-Over Order together with a 12 month Treatment Order.
Count 13:	12 months' Binding-Over Order together with a 12 month Treatment Order, concurrent.

Total: 12 months' Binding-Over Order together with a 12 month Treatment Order. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Originally charged with drug trafficking offences but the Crown had accepted the not guilty pleas entered to those counts; to be sentenced for the possession of herbal and cannabis resin and the cultivation of three cannabis plants which were little more than seedlings.  The Court had looked carefully at the recommendations contained within the social enquiry report and also looked carefully at his previous record and character references etc.  The Court agreed that the Crown's conclusions were correct.  Humphrys was advised that he was being given a chance because the cultivation of cannabis plants in certain circumstances leads to a substantial custodial sentence as the offences were rightly treated as a trafficking offence.  He was advised not to waste the chance he was being given. 

Starting point 8 years' imprisonment.

Conclusions granted.

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

Advocate M. R. Godden for Allardice.

Advocate S. M. Le Cocq for Humphrys.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Allardice, you are here to be sentenced on an Indictment which contains seven charges to which you have pleaded guilty; possession of cocaine with intent to supply, possession of cocaine, possession of ecstasy with intent to supply, possession of ecstasy, possession of cannabis resin and herbal cannabis with intent to supply, and possession of some utensils.  The amounts involved are 20.79 grams of cocaine, 14.39 grams of ecstasy, having street values respectively of £1,600 and £1,120, 24.80 grams of cannabis resin, which is what is called "squidgy black" or "Afghan black", at a street value of £240-360 and the other significant amount of cannabis is 17.63 grams of herbal cannabis or "Thai stick" with a street value of £250-340. 

2.        You are here to be sentenced on a factual basis which you have put forward to the Crown through your counsel.  You have said that on the evening of the 9^th September last year, you and a group of other people had been out at public houses.  You returned to your flat where the party continued.  One of the guests distributed illegal drugs and you have confirmed that you knew who that person was but you declined to name him for fear of reprisal.  That statement that was agreed by your counsel with the Crown, was not consistent with what you later told the probation officer, where you said you did not know who it was who had supplied the drugs.  You then said that you went to bed about 2:30 in the morning; you were woken up first thing the following morning by the third party who asked you if he could place some items in the safe, you agreed that he should do so, you agreed that you did not ask any questions.  You thought that the items might well be illegal drugs.  Again that is not consistent with what you later told the probation officer when you said that you thought it was only cash.  We are sentencing you on the agreed basis of what was put forward but we have noted, in passing, the inconsistency of what you said to the probation officer.

3.        The Crown has taken a starting point of 9 years, having regard to the Rimmer and Ors-v-AG 2001/148 and the Valler-v-AG 2002/133 guidelines.  This is a case where in the context of cocaine, applying the Rimmer guidelines, you are, as your counsel put it, somewhere in the cusp of two sentencing brackets.  At 1-20 grams it would be a starting point of 7-9 years' imprisonment, at 20-50 it would be a starting point in the bracket of 8-10 years' imprisonment, and so if it fell within the lower bracket and it was done on weight alone at 9 years, and in the higher bracket you would start at 8 years.  And that really emphasises that what the Court is doing is to look at the overall involvement in drug trafficking, which it is clear from the cases of Campbell, Molloy and Mackenzie-v-AG [1995] JLR 136 and Rimmer that we should do.  We have considered the variety of drugs that were found here, the cocaine and ecstasy, and we have taken the view that on the facts which have been put before us you should be sentenced at the bottom of the upper bracket.  We accept your counsel's submissions, and therefore we are going to take a starting point of 8 years' imprisonment in relation to all the drugs charges and they will be concurrent sentences.  I should say that we have also given consideration to the social enquiry report and the drug and alcohol report but we do not see any basis upon which we should depart from a custodial sentence in this case. 

4.        The Court's policy in relation to drug trafficking is clear.  Possession with intent to supply in the context of supplying back to the person who supplied you may be a less serious offence than supplying to third parties but it is still a serious offence.  Minding drugs for those who are higher up the chain makes it easier for those people who carry greater culpability to avoid detection and it makes it, accordingly, more likely that the drugs will end up on the street.  This makes the offence a serious offence and it requires, in our view, the sentence of imprisonment.

5.        Having regard to the fact that you have pleaded guilty, and we give you full discount for the guilty plea, and having regard to other mitigation which you have - we note that this is a first period of imprisonment, we have read carefully the references put before us and had regard to your background; we have also looked carefully at your own letter which does seem to us to show some real remorse on your part - we accept that you are not a dealer of drugs in the usual way but, nonetheless, you have twice been before this Court on drug trafficking charges previously and have been given non-custodial sentences.  In February 2007 you had a 240 hour Community Service Order and in September 2008 further Community Service Orders for being concerned in the supplying or offering to supply a controlled drug.  In the circumstances we think the right sentence of imprisonment in 4½ years' imprisonment and you will therefore go to prison for that period of time. 

6.        We sentence you on Count 6; 4½ years' imprisonment, Count 7; no separate penalty, Count 8; 4½ years' imprisonment, Count 9; no separate penalty, Count 10; 6 months' imprisonment, Count 11; no separate penalty, Count 12; 6 months' imprisonment.  All those will run concurrently making a total of 4½ years. 

7.        Mr Humphrys, you are indicted on a basis which originally charged you with being concerned in the trafficking of drugs and you entered not guilty pleas to those charges.  You are only here now to be sentenced for possession of some herbal cannabis and cannabis resin and for the cultivation of three cannabis plants which were very small.  The recommendation from the background report suggests that you should receive a treatment order.  You have already spent time in custody of 5 months and 18 days.  The Crown also moves for a 12 month Binding-Over Order with a Treatment Order on both Counts 11 and 13 having regard to the time spent in custody and also having regard to the background report. 

8.        The Court has looked carefully at your record and we are, of course, approaching sentence on the basis of the matters which the Crown has accepted.  We think the Crown's conclusions are correct and you are therefore sentenced to a 12 month Binding-Over Order with a Treatment Order on both Counts 11 and 13 concurrent. 

9.        You are being given a chance today.  The cultivation of cannabis plants can frequently lead to a custodial sentence and has rightly, in the past, often been treated as a trafficking offence.  You should take advantage of the chance that you have been offered and use it to turn your life around. 

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

Authorities

Rimmer and Ors-v-AG 2001/148.

Valler-v-AG 2002/133.

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

Whelan on Aspects of Sentencing in the Superior Court of Jersey 3^rd Edition.

AG-v-Smitton 2001/31.

AG-v-Jones, McFarland and Pinkowski [2004] JRC 002.

AG-v-Channing [2004] JRC 188.

AG-v-Stirton [2012] JRC 108.