1999/102 - AG v Chevalier [1999] UR 102 (9 June 1999)

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Sentencing by the Superior Number of the Royal Court, for which the accused was remanded by the Inferior Number on 14 May 1999 following a guilty plea to:

9 counts of:possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978

1 count of: possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978,

Chevalier was a heroin addict, familiar with taking many types of drugs. Pursuant to a search warrant, the Police carried out a search of his premises on three separate occasions over a five month period. On two of those occasions he was found in circumstances suggesting he was about to inject himself with heroin. On the third occasion, the search of the premises revealed in addition to a number of different drugs, a dealing pad with writing and figures, and a stained spoon, set of scales and brass weights, together with a number of empty wraps. The total weight of powder was approximately 9.5 grams which revealed on analysis a high percentage (74-76%) by weight of diamorphine

Previous charges were only of possession and it was clear that the accused was an addict. On instructions, submitted that the drugs were held for a third party, to whom they would be returned. This did not mean the offence had not been committed, but it was not the classic case. the accused had tried to wean himself off heroin unsuccessfully.

Six previous convictions for possession of Class B drugs and sundry traffic offences.

THE DEPUTY BAILIFF: On Monday 8^th June, 1998, a search warrant, unconnected with Chevalier, was executed at 49, Convent Court. As officers entered the property, Chevalier was found injecting himself with heroin. He has been heroin addict - he says - for over 8 or 9 years, and it may in fact be longer than that. He has injected himself for some 4 years, and on his admission he injected, at that time, up to ½ gram per day.

More heroin was found in the property, together with cannabis resin, and methadone hydrochloride. All those drugs have been accepted on indictment as having been for his personal use. He was remanded on £100 bail by the Relief Magistrate.

On the 26^th June, the search warrant was re-executed at 49, Convent Court, and the story was as before. More heroin and cannabis resin was discovered. Again he was remanded on £100 bail.

A new warrant was executed on 7th October, 1998, and Chevalier was arrested. After a systematic search of the premises, he was found to be in possession of two syringes containing brown liquid, a black note pad with writing and figures, a Pentax MZ50 camera, brown powder wrapped in cling-film, a red plastic container with a ‘Jersey’ motif, £72.00 in cash, a stained spoon, a set of scales and brass weights, and an A4 notepad.

More heroin powder was found, and analysis revealed it to contain 76% by weight; the earlier heroin that had been discovered in the flat had 41 and 46% by weight. In a red plastic container were found 8 large cling-film wrapped paper wraps, and the paper there was lined. On the paper on one side was a zigzag blue or black ball point pen mark, and on the other side was a thick blue line from a felt or highlighter pen. Within each of these paper wraps a brown powder was located, the weight of powder in each bag varied between 106mg and 210mg, and the total weight of powder was 1.19grams, which on analysis was shown to consist of heroin containing an average of 76% by weight of diamorphine.

Thirty-seven small cling-film wrapped paper wraps were also found, the paper again being lined, and within each of these paper wraps a brown powder was located. The weights of powder in each bag varied between 50mg and 140mg, and the total weight of powder in this item was 3.48grams. That powder has been analysed and shown to consist of heroin containing an average of 74% by weight of diamorphine. Various other items were also found at that time.

Chevalier admitted to the police officers that he had injected himself with heroin, but his dosage now was apparently 1gram per day. Other drugs forming part of this indictment were found in the property; cannabis resin, ecstasy, and amphetamine sulphate. His story is that the ecstasy and the amphetamine were given to him by unnamed sources.

He is clearly an addict who has considerable quantities of heroin in his possession at any one time, but the paraphernalia, the heroin wraps, the deal list, which he - at the time - categorically denied had anything to do with heroin dealing, but were related he says to deals in amphetamine and DF118 tablets, and the scales, made his plea of guilty of possession of heroin with intent to supply inevitable. Nevertheless, the plea is to his credit.

Now, as to the heroin seized on the 7^th October, we have mentioned that the purity by weight was 74 to 76%, and that is more than double the police national average of 35%, and the learned Crown Advocate says that it is indicative of the possibility that the heroin seized could be cut or diluted with an additive so as to increase its bulk, and thus its profit.

Of the 8 separate bags of heroin, with a total weight of 1.19grams, all but one were significantly over the normal 30 bag weight of up to 100mg. The total in these bags would have had a wholesale value in Jersey of £190.00 and a street value of £356.00. The 76% purity by weight indicates that the heroin in each of these wraps could again be cut to increase the bulk. The 37 individual measures of heroin ranging in quantity between 50 and 140mg in weight would give a wholesale value in Jersey of £556.00 and a street value of £1,110.00. The purity by weight of 74% indicates that the individual wraps could have been cut to increase the bulk of each to reduce the purity level and of course to increase the profit.

The learned Crown Advocate in his conclusions has taken a wholesale value of £746.00, and a street value of £1,456.00, and because we are talking of 74% purity by weight, he has apparently doubled it, and that may be based on the fact that the national average is 35%, and the purity of that amount leads to a supposition that it would have been increased.

We have spent some time considering that aspect, and we find it a little difficult to understand the practical ability of a heroin addict, or someone dealing in heroin, to reduce the bulk of heroin in that way, but nevertheless, however we look at the matter, this is clearly a commercial quantity of a dangerous drug.

Looking at one aspect of the probation report that Dr Kelleher asked us to look at, we read this at paragraph 8, and we are going to set it out:

On 7^th October,1998, a police search revealed heroin, cannabis, ecstasy, and speed. The quantity of heroin found and the way it had been divided into smaller amounts indicated clearly that it was intended for supply. Mr Chevalier has admitted the charge, although he states he is not a direct supplier, rather a delivery man, between big suppliers and street dealers. He tells me that since 1995, during the times when he has been dependent on heroin, he has acted in this rôle. The attraction is that he would get a regular supply of heroin for himself often supplied free in return for his services. An average earned wage is never going to cover the cost of an ingrained heroin habit. Mr Chevalier rationalised his commercial activities to me by saying that he regarded this means of funding his drug dependency as preferable to the common alternatives of burglary and shoplifting."

The learned Crown Advocate has expressed his own views on that matter, and we do not need to take it further, than to set it out as it is explained there.

We have a letter from the accused which makes for sad reading, but he is in our view involved in a vile and violent trade, and we must, because we are bound to do so, follow the guidelines of the Court of Appeal in Campbell, Molloy and MacKenzie (1995) JLR136 CofA. As recently as the 17^th March, 1999, the Court of Appeal reiterated our duties under the law in the case of Whyte-v-Attorney General, (17^th March,1999) Jersey Unreported CofA. They said that the street value and the weight of the drugs are relevant, as was said in Campbell, Molloy, and MacKenzie. Much will depend on the amount and value of the drugs involved and the scale of the activity, and of course any other factors showing the degree to which the defendant was concerned, including trafficking.

Chevalier has readily admitted that he is close to a big supplier, but he will of course not name him. Dr Kelleher says that he was merely holding the drugs, being able to dip into them for his own use at no financial cost, and we have to ask ourselves whether this is a case where we can properly take the amount and value of the drugs and the nature and scale of the activity to enable us to look for a lower starting point than that set by the Court of Appeal in Campbell, Molloy and MacKenzie of 7 years.

In fact Crown Advocate Bailhache took 8 years. The reason that the starting points are so high is that condign punishment is, and must always, meet the case of drug dealers of this kind. Let us just for a moment look at what the Court said in Campbell:

"In our judgment the appropriate starting point for a case of drug trafficking of that nature would now be one of 12 years imprisonment…" they are talking here of the case of Fogg: "If the involvement of the defendant in drug trafficking is less than that of Fogg, the appropriate starting point will be lower, if the involvement of the defendant in drug trafficking is greater than that of Fogg, the appropriate starting point would clearly be higher. Much will depend upon the amount and value of the drugs involved, the nature and scale of the activity, and of course any other factors showing the degree to which the defendant was concerned in drug trafficking. We propose to vary the lowest point of the band established in Clarkin; we accordingly state that it is seldom that the starting point for any offence of trafficking in a Class A drug on a commercial basis can be less than that of 7 years. We have employed the term "trafficking" deliberately. In the past some distinction may have been drawn between offences involving the importation of Class A drugs and offences involving their supply or their possession with intent to supply. In our judgment there is no justification for any such distinction. The guidelines we have set out above apply to any offences involving the trafficking of a Class A drug on a commercial basis".

Even after taking into account all the matters of mitigation - the guilty plea, the fact that this is Chevalier’s first case of intent to supply and his obvious addiction, and the letter that he wrote to the Court, which we have of course studied carefully - we find it difficult to depart from the conclusions of the learned Crown Advocate. However, this Court takes the view that the starting point in this case should be 7 years. But even on that basis we can see no reason to depart from the conclusions, and therefore, Chevalier, you are sentenced on count 1: to 9 months’ imprisonment; count 2: 3 months’ imprisonment; count 3: 9 months’ imprisonment; count 4: 9 months’ imprisonment; count 5: 3 months’ imprisonment; count 6: 9 months’ imprisonment; count 7: 5½ years’ imprisonment; count 8: 3 months’ imprisonment; count 9: 9 months’ imprisonment; count: 10: 3 months’ imprisonment. All those sentences concurrent, and of course we order the drugs seized to be forfeited and destroyed. Thank you very much Mr Bailhache, thank you Dr Kelleher.

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	Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/102 - AG v Chevalier [1999] UR 102 (9 June 1999) URL: http://www.bailii.org/je/cases/UR/1999/102.html Cite as: [1999] UR 102

Jersey Unreported Judgments