Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession with intent to supply - possession - Class A, B and C.

[2013]JRC220

Royal Court

(Samedi)

12 November 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu, Nicolle, Liston, Blampied and de Veulle.

The Attorney General

-v-

Simon Christopher Marett

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 20^th September, 2013, following guilty pleas to the following charges:

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

Age:  34.

Plea: Guilty.

Details of Offence:

The defendant purchased 17.5g heroin (Count 1) having previously purchased a small sample (Count 2).  Partly because of its low purity the defendant intended to consume a substantial proportion to "wean himself off" heroin, and supply the remainder to friends, for payment.  He was also in possession of personal quantities of other drugs (Counts 3-5). 

In interview he had denied knowingly purchasing heroin, saying that he thought it was "crystals".  Paraphernalia including a set of digital scales was found at his home. 

Details of Mitigation:

Guilty plea entered shortly before trial; no previous offences for trafficking.  Family support, constructive use of time spent in custody on remand. 

Previous Convictions:

51 convictions, including numerous for possession of drugs. 

Conclusions:

Count 1:	Starting point 7½ years' imprisonment; 4½ years' imprisonment.
Count 2:	4 months' imprisonment, concurrent.
Count 3:	1 week's imprisonment, concurrent.
Count 4:	2 weeks' imprisonment, concurrent.
Count 5:	1 week's imprisonment, concurrent.

Total: 4½ years' imprisonment.

Discharge of saisie judiciaire sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Conclusions granted.

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

Advocate R. C. L. Morley-Kirk for the Defendant.

JUDGMENT

THE commissioner:

1.        On 4^th March, 2013, the defendant, who is a heroin addict, was found in possession of 17.53 grams of heroin with a purity of 9% and small quantities of heroin (0.51 grams), cannabis resin (3.77 grams), subutex (0.38 grams) and an anabolic steroid (2.8 millilitres).  Drugs paraphernalia was found at his home.  The defendant eventually admitted, a week before his trial, that whilst he would have consumed a proportion of the heroin himself, he intended to supply the remainder to friends in exchange for payment. 

2.        Under the Rimmer guidelines, offences involving 1-20 grams normally attract a starting point of between 7 and 9 years and it is made clear in that case that there will seldom be a starting point, for any amount of heroin, below 7 years.  The Crown move for a starting point of 7½ years towards the bottom end of that range for two reasons.  Firstly, the heroin was of a relatively low purity and this was known to the defendant.  In Hasson-v-AG [2004] JLR N33, [2004] JCA 124, the Court of Appeal held that awareness of a low quality could lead to a reduction in the starting point.  As the Crown point out however, unlike Hasson, in this case, the heroin was marketable at the usual prices, and the defendant intended to sell at least some of that heroin to users; it was not to be returned to their supplier.  We agree with the Crown that there should be no discount for this aspect of the case.  Secondly, this was a proposed supply by a first-time trafficker, which we accept, to a limited circle of friends of only a proportion of the drugs seized and following the Court of Appeal decision in Morgan and Schlandt-v-AG [2001] JLR 225 this, again, the crown submitted, can be taken into account. 

3.        However, the Crown had overlooked the more recent decision of the Superior Number in AG-v-Mackenzie [2011] JRC 171 where, after a careful review of the case law, the Superior Number held that social supply should not be taken into account in fixing the starting point but could be taken into account in mitigation.  In our view the Court of Appeal decision in Morgan was a decision on its particular facts and was not intending to lay down guidelines and that, accordingly, we should follow the Superior Number guidelines in the case of Mackenzie. 

4.        Whilst the weight of the heroin found would indicate a higher starting point within the 7-9 year range, we accept that the defendant's involvement in drug trafficking was at the lower end and we therefore have concluded that 7½ years is the appropriate starting point and not the 7 years suggested by Advocate Morley-Kirk. 

5.        The defendant is assessed at a medium risk of reoffending, albeit at the cusp of being high risk; he has a bad record, including previous drug convictions, albeit none for trafficking.  He has had, in the past, the benefit of community sentences and the social enquiry report states that there would be serious reservations on the Probation Department's part about his compliance and level of engagement should he be considered for either probation or community service.  The report says this:-

"The defendant needs to take active responsibility for his own behaviour and address his tendency to misuse illegal substances otherwise he will continue on the same cycle."

6.        In mitigation the defendant has pleaded guilty to the substantive offence, albeit very late in the day and to the other more minor offences.  He has strong support from his family and friends, some of whom are in Court this afternoon, and we have read their letters and, indeed, we have read your letter as well.  It is clear that the family will meet any cost involved in helping the defendant beat his heroin addiction.  We have had regard to all of the matters put forward by Advocate Morley-Kirk, some of which are very personal to the defendant and therefore we will not repeat them in open Court, but at the end of the day and after careful consideration we see no reason to move away from the sentences moved for by the Crown. 

7.        In relation to Count 1 you are sentenced to 4½ years' imprisonment; in relation to Count 2; 4 months' imprisonment, concurrent, Count 3; 1 week's imprisonment, concurrent, Count 4; 2 weeks' imprisonment, concurrent, Count 5; 1 week's imprisonment, concurrent, which makes a total of 4½ years' imprisonment. 

8.        We order the forfeiture and destruction of all of the drugs. 

9.        Finally, we grant the prayers to the Representation contained at divider 11 of the bundle, firstly, that pursuant to Article 16 and 6(a) of the 1988 Law the Court discharges the Saisie judiciaire granted on 9^th July, 2013 in respect of the realisable property of the defendant and we direct the Viscount to give notice of any order made pursuant thereto as soon as practicable by letter to the defendant and to the Royal Bank of Scotland International Limited, 71 Bath Street, St Helier, and to any other person appearing to him to be affected thereby. 

10.      We just wanted to say, Mr Marett, that having imposed that sentence we are enormously encouraged by what you are doing at the prison; we think actually you are now turning your life around and we wish you all the very best in your achieving that goal. 

Authorities

Rimmer-v-AG [2001] JLR 373.

Hasson-v-AG [2004] JLR N33.

Hasson-v-AG [2004] JCA 124.

Morgan and Schlandt-v-AG [2001] JLR 225.

AG-v-Mackenzie [2011] JRC171.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey.