Jersey Unreported Judgments

[2010]JRC032

ROYAL COURT

(Samedi Division)

11^th February 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, and Jurats Le Breton, Clapham, Le Cornu, Kerley and Marett-Crosby.

The Attorney General

-v-

Mark Lee Hollings

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 15th January, 2010, following guilty pleas to the following charges:

First Indictment

1 count of:	Larceny (Count 1).
2 counts of:	Driving whilst under the influence of drugs, contrary to Article 27(1) of the Road Traffic (Jersey) Law 1956 (Counts 2 and 5).

Second Indictment

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

Age:  35.

Plea: Guilty.

Details of Offence:

The chronology of the offending is as follows:-

First Indictment

The defendant goes into Jersey Telecoms shop and steals a mobile telephone valued at £513.99.  He is identified by his clothing on CCTV and the mobile phone is found during a subsequent search of his home (Count 1).

Later on the same day the defendant is driving his vehicle and his driving comes to the attention of the police.  When they stop him he is considered to be unfit to drive.  A subsequent blood test showed a blood concentration of Diazepam greater than that is generally accepted as being therapeutic (Count 2).

He commits second offence for driving whilst unfit through drugs.  A blood sample is once again taken and shows excessive levels of Diazepam and the presence of morphine (Count 5). 

Second Indictment

A postal package is intercepted by customs officers containing 5 small heat sealed packets containing a total of 1.829 grams of heroin.  A search warrant was undertaken at the defendant's home address and various drug paraphernalia is found including a further 82 milligrams of heroin (Count 3) and 580 milligrams of cannabis resin (Count 4).  An envelope addressed to the defendant was found at the premises which appeared very similar to the handwriting on the envelope which was falsely addressed and which contained the heroin.

The total amount of heroin seized was 1.911 grams which has a street value of £1,900.  The wholesale value was £573.  By way of contrast the postal importation had a UK value of £73.  The cannabis had a street value of £3.

The defendant's guilty plea to Count 1 on the Second Indictment was entered on the basis that the importation was for his own personal use.

Details of Mitigation:

The Crown

Guilty plea entered on indictment.  He did not have the benefit of youth or good character.  Nothing by way of exceptional mitigation arising from the background reports.  The importation of heroin for personal use was a mitigating factor.  The second offence of driving whilst unfit was committed whilst on bail for the first offence.  The crown's conclusion was that a custodial sentence was inevitable and consecutive sentences should be passed in relation to the offences on the First and Second Indictments. 

Defence

The Defence primary submission was that a non-custodial sentence could be imposed to assist the defendant in addressing his long-standing drug problems.  He had the support of his girlfriend and now wished to act responsibly in relation to their child.  The Defence submitted that the Crown's conclusions were excessive.  Insufficient credit given for the mitigation available and in particular the fact that the postal importation was for personal use.  The Defence disputed whether a 7 year "starting point" down to 4½ years was the appropriate sentence.  The guilty plea was a valuable guilty plea.  Apologies offered to the Court.

Previous Convictions:

61 convictions for a total of 128 offences including 42 offences for theft or kindred offences, 16 drug offences, fraud, offences against the person i.e. offence of violence, malicious damage, motoring offences and public order offences.

Conclusions:

First Indictment

Count 1:	2 months' imprisonment.
Count 2:	1 month's imprisonment, consecutive, plus 12 months' disqualification from driving.
Count 5:	3 months' imprisonment, consecutive, plus 3 years' disqualification from driving, consecutive.

Second Indictment

Count 1:	4½ years' imprisonment, consecutive to the First Indictment.
Count 3:	2 months' imprisonment, concurrent.
Count 4:	1 week's imprisonment, concurrent.

Total:  5 years' imprisonment plus 4 years' disqualification from driving.

Confiscation Order Hearing adjourned until 21^st April 2010 at 14.30.

Binding-Over Order to be discharged.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

The defendant to be sentenced in relation to offences under the Road Traffic Law for driving whilst unfit through drugs, larceny, being concerned in the importation of heroin, possession of heroin and cannabis.  Aggravating feature in that the second driving offence was committed whilst on bail for the earlier offence.  The Crown accepts that the heroin imported in the post had been imported for personal use.  The defendant had a bad record of some 61 convictions including 16 previous drugs offences.  He is aged 35 and it is clear that he has abused drugs for many years.  The Court had carefully considered the recommendation of the Alcohol and Drugs Service but thought that there was no realistic prospect of the defendant complying with a non-custodial sentence.  The Court concluded that custody was the only option.  The Court noted that drugs had ruined the defendant's life.  The Court had read the papers and letters from girlfriend.  The Court expressed that hope that he could make something of his life and that he could provide stability to his family.  The Court felt able to make some deduction from the Crown's conclusions as it did not think that sufficient allowance had been made for the fact that the drugs had been imported for personal use. 

First Indictment

Count 1:	2 months' imprisonment.
Count 2:	1 month's imprisonment, consecutive, plus 12 months' disqualification from driving.
Count 5:	3 months' imprisonment, consecutive, plus 3 years' disqualification from driving, concurrent.

Second Indictment

Count 1:	2½ years' imprisonment, consecutive to the First Indictment.
Count 2:	2 months' imprisonment, concurrent.
Count 4:	1 week's imprisonment, concurrent.

Total:  3 years' imprisonment, plus 3 years' disqualification from driving.

Confiscation Order Hearing adjourned until 21^st April 2010 at 14.30. 

Forfeiture and destruction of drugs ordered. 

The Court discharged the Binding Over Order imposed by the Magistrate's Court without further penalty.

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

Advocate R. Tremoceiro for the Defendant.

JUDGMENT

THE commissioner:

1.        This defendant is to be sentenced for a number of road traffic offences; driving whilst under the influence of drugs, larceny, being knowingly concerned in the fraudulent evasion of the prohibition on importing heroin, and possession of heroin and cannabis resin.  It is an aggravating feature that the drugs offences were committed while the defendant was on bail for the earlier infractions.

2.        The Crown has accepted, however, that the importation of heroin was for the defendant's personal use.  The defendant has a very bad record of 61 convictions including convictions for 16 drug offences.  He is aged 35; he has been an abuser of drugs for many years.  We have considered carefully the recommendation of the Drug and Alcohol Service that a Treatment Order should be imposed but we think that there is no realistic prospect of the defendant complying with such an order and we have concluded that custody is the only option. 

3.        Hollings, drugs have ruined your life.  We have read the papers that you have placed before us; we have read the letter from your girlfriend and the Court hopes that when you come out of prison you will be able to make something of your life and take advantage of the fact that a child gives you an opportunity for a fresh start.  That will be a matter for you and for your girlfriend.  In the meantime we have to sentence you for the offences that you have committed.  We are going to make some reduction of the conclusions of the Crown because we do not think that they make sufficient allowance for the fact that these drugs were imported for personal use and not for onwards sale. 

4.        The sentence of the Court therefore is that we grant the conclusions on the First Indictment; we sentence you on Count 1 to 2 months' imprisonment, on Count 2; 1 month's imprisonment, consecutive, on Count 3; 3 months' imprisonment, consecutive and we disqualify you from driving for 1 year on Count 2 and 3 years on Count 5 but those sentences will be concurrent, making a total on the First Indictment of 6 months' imprisonment and 3 years' disqualification from driving.  On the Second Indictment on Count 1; 2½ years' imprisonment, on Count 3; 2 months' imprisonment, concurrent, on Count 4; 1 week's imprisonment, concurrent, making a total of 2½ years' imprisonment on the Second Indictment which will run consecutively to the First Indictment, making a total of 3 years' imprisonment in all.

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

6.        We also discharge the Binding-Over Order of the Magistrate.

Authorities

Extract from Magistrate's Sentencing Guidelines.

O'Donnell-v-Ricketts [2008] JRC 024.

Rimmer-v-AG [2001] JLR 373.

AG-v-Vieira [2008] JRC 184.

Shahnowaz-v-AG [2007] JLR 221.