Jersey Unreported Judgments

Inferior Number Sentencing - drugs - production - possession - Class A and B.

[2014]JRC194

Royal Court

(Samedi)

10 October 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Kerley and Olsen

The Attorney General

-v-

James Harry Huish

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

1 count of:	Production of a controlled drug, contrary to Article 5(a) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
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).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Further Indictment

1 count of:

Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).

Age:  32.

Plea: Guilty.

Details of Offence:

The defendant was arrested at FB Fields car park on suspicion of being concerned in the importation of a controlled drug. 

The defendant's gold Citroen J23649 was searched and in the engine bay Customs Officers found a clear plastic bag.  The bag was found to contain a further four small self-sealed plastic packages containing 27.61 grams, 12.32 grams, 25.84 grams and 10.59 grams of methylmethcathinone (known as mephedrone) respectively, making a total of 76.36 grams (Count 2), together with a further very small wrap containing 159 milligrams of ecstasy (60 per cent by weight of MDMA) (Count 3). 

A search was conducted at the defendant's parental address where he was staying.  A room full of the defendant's possessions was searched and three small cannabis plants were found (Count 1), together with a set of scales on which there were traces of a white crystalline powder, various re-sealable plastic bags, and a small cling film wrapped package of cannabis resin weighing 52 milligrams (Count 1 - Further Indictment). 

The mephedrone had a potential street value of £4,500 (£60 per gram) and comprised between 300 and 380 individual doses.  The ecstasy had a value of £5.  The three cannabis plants were immature and worth a total of £150. 

The defendant pleaded guilty to possession with intent to supply the mephedrone on the basis that up to 50% of the drugs were for social supply. 

Details of Mitigation:

Guilty plea.

Previous Convictions:

4 previous convictions comprising 14 offences, including 5 offences of possession of illegal drugs. 

Conclusions:

Count 1:	90 hours' Community Service Order, equivalent to 3 months' imprisonment.
Count 2:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent, together with a 12 month Probation Order.
Count 3:	100 hours' Community Service Order, equivalent to 4 months' imprisonment, concurrent.

Further Indictment

Count 1:

40 hours' Community Service Order, equivalent to 1 week's imprisonment, concurrent to the First Indictment.

Total: 180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 12 month Probation Order.

Confiscation Order in the nominal sum of £1 sought.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

The Court noted that sentences in relation to New Psychoactive Substances were out of kilter with other Class B drugs, save where the amount of drugs was very large. 

The Court -

1. Requested that the Attorney General carry out a review of the approach to sentencing levels in NPS cases.  A suitable case should be found and referred to the Superior Number.  Reports and advice as to the potential damage these drugs can cause should be prepared for such a hearing. 

2. Reiterated the Court policy that Class B drug offences will likely result in a custodial sentence.  Cases involving NPS drugs would be dealt with in the same way as all other Class B drugs. 

Conclusions granted.  

C. M. M. Yates, Esq., Crown Advocate.

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

JUDGMENT

THE BAILIFF:

1.        You were found in possession of a total of 76 grams of a new psychoactive substance known as mephedrone, which had a potential street value of some £4,500.  You also had a very small amount of ecstasy, three immature cannabis plants and a trace of cannabis resin at your home.  You pleaded guilty to possession with intent to supply on the basis that up to half the mephedrone was for social supply, in other words supply to your friends. 

2.        The Court wishes to restate that NPS' are potentially dangerous because there is no way of knowing in advance what chemicals are in them and what effect they may have. 

3.        The Crown has moved for a non-custodial sentence despite the fact that you have previous convictions for possession of drugs.  The Crown has felt constrained to do that because non-custodial sentences were imposed in the cases of AG-v-Fage [2014] JRC 114, AG-v-Crabtree [2013] JRC 196, AG-v-L'Enfant [2013] JRC 169, AG-v-Moody [2012] JRC 183, AG-v-Sanguy [2012] JRC 170A and AG-v-Diogo [2014] JRC 153 all of which related to NPS drugs and in some cases the amounts were greater than in this case.  It is always difficult to compare the facts of one case with another and there may well have been special factors in some of those cases; certainly youth appears to have been a factor in some. 

4.        Nevertheless the Court's policy on the importation and supply of drugs is well-established.  We repeat what we said in Sanguy. 

"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."

We have to say that it appears to us from the cases to which we have been referred that sentences in relations to NPS drugs are perhaps getting out of kilter with that sentencing policy in relation to other Class B drugs, because a non-custodial sentence seems to have been imposed on a regular basis save where the amounts are large. 

5.        We wish to do two things as a result of having these matters drawn to our attention.  First, we are asking the Attorney General to carry out a review of the approach of the Crown and of the sentencing levels in relation to NPS drugs and to find a suitable case to bring the matter back before the Court, perhaps for reference to the Superior Number for careful consideration even if it is in a matter where the sentence will be below the Superior Number's jurisdiction.  We think we would benefit from expert reports and advice as to the potential dangers of these drugs, their prevalence and other matters. 

6.        Secondly, and in the meantime, we reiterate the policy which is that for the importation or the supply or possession with intent to supply of Class B drugs a custodial sentence is the likely result and we say that in future the Court will be applying that policy in relation to NPS drugs to the same extent as it does in relation to all other Class B drugs. 

7.        Now reverting to this case, we have taken into account the defendant's guilty plea, the references which we have seen, his generally good work record, the fact that he has realised that he has a drug problem and is voluntarily attending now at Alcohol and Drugs, and the fact that he also has the support of his family which is important.  In all the circumstances, given the other cases and given the facts of this particular case, we are going to agree with the conclusions of the Crown whilst making it clear that this may not be the approach in future. 

8.        On Count 1; 90 hours' Community Service, on Count 2; 180 hours' Community Service with a 12 month Probation Order, concurrent, on Count 3; 100 hours' Community Service and on the extra Indictment; 40 hours' Community Service, all of those to be concurrent; so that is 180 hours' Community Service in all, which we say is the equivalent to a 12 month imprisonment sentence, and there is also therefore the 12 month Probation Order. 

9.        We also order the forfeiture and destruction of the drugs.

10.      Mr Huish it is very important that you adhere to the community service and the probation.  You must realise that if you do not, if you do not turn up or you do not work hard or if you do not do what the probation officer tells you, or of course, if you reoffend, then you will be brought back and at that stage, as I said, a prison sentence would seem to be the only option so it is very important that you comply with these orders fully and you do not reoffend in the meantime. 

Authorities

AG-v-Fage [2014] JRC 114.

AG-v-Crabtree [2013] JRC 196.

AG-v-L'Enfant [2013] JRC 169.

AG-v-Moody [2012] JRC 183.

AG-v-Sanguy [2012] JRC 170A.

AG-v-Diogo [2014] JRC 153.

AG-v-Dryden [2014] JRC 172

AG-v-Buesnel [1996] JLR 265.

AG-v-Allardice and Humphrys [2013] JRC 051.