Jersey Unreported Judgments

Inferior Number Sentencing - attempted larceny - larceny - drugs - possession - Class A.

[2013]JRC081

Royal Court

(Samedi)

26 April 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Clapham and Blampied.

The Attorney General

-v-

Justin James Samson

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

1 count of:	Attempted larceny (Count 1).
1 count of:	Larceny (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).

Age:  31.

Plea: Guilty.

Details of Offence:

Attempted larceny - between June and November 2012, whilst legitimately in the home of an elderly disabled woman, Samson opened and rifled through her bureau in an unsuccessful search for fentanyl patches. 

Larceny and possession of fentanyl - on 29^th November, 2013, Samson went to his doctor without an appointment to ask for a sick note.  As he left, he stole a metal case from the boot of his doctor's car.  The case contained three fentanyl patches and he later admitted that he had stolen it in the hope that it contained drugs.  Samson took the three patches from the case, which he threw away.  He made an unsuccessful attempt to inject the fentanyl from one of the patches.  Samson then went to a friend's house.  He was found there by police, who saw him hiding one patch under a paint pot. 

Breach offences

Illegal entry and larceny, assault and possession of cannabis - in the early hours of 22^nd August, 2012, Samson entered the garage of a dwelling and stole an ice cream from a freezer. Later, a man investigating suspicious noises found him sitting in a car, eating the ice cream.  When asked what he was doing he told the man "you don't really know who you're dealing with", before punching him in the face.  The victim suffered a broken nose and a black eye, along with a suspected broken jaw and possible bruising on the brain. 

When arrested for this offence on 25^th September, 2012, he was in possession of 410 mg of cannabis resin.  He made full admissions in interview.

 

Attempting to fraudulently obtain prescription drugs - on 12^th November, 2012, (whilst in the Magistrate's Court system for the assault and illegal entry), Samson presented a prescription for dihyrocodeine tartrate, frovatriptan and nitrazepam tablets to a pharmacist.  The date on the prescription, 13/11/12, had been crossed out and amended to 12/11/12 and the change had been signed.  The pharmacist realised that the signature was not that of the GP.  She accordingly called the police.  Samson was arrested and, in interview, made full admissions. 

On 28^th November, 2012, (the day before the larceny and possession offences) the Magistrate imposed the following sentences:-

1. Assault - 12 months' probation and 180 hours' community service, or 12 months' imprisonment in default.

2. Illegal entry and larceny - 50 hours' community service or 1 month's imprisonment in default.

3. Possession of cannabis - 50 hours' community service or 1 month's imprisonment in default.

4. Attempting to fraudulently obtain prescription drugs - 70 hours' community service or 2 months' imprisonment in default.

He was also ordered to pay compensation on an unrelated malicious damage charge. 

Details of Mitigation:

The Crown

Guilty pleas; cooperative with police; admission that he stole three fentanyl patches was of value as only one was recovered and the doctor was unable to say how many were in the case. 

It was an aggravating feature that the larceny and possession offences were committed little more than 24 hours after the imposition of the Magistrate's Orders. 

The Defence

Difficult background; believes that the best way for him to change his life is a prison sentence.  Defence disagreed with the Crown's approach to consecutive and concurrent sentences, and argued that the sentences for larceny and possession of fentanyl should be concurrent. 

Previous Convictions:

123 convictions including 48 theft and kindred offences and 4 drug offences.

Conclusions:

Count 1:	2 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, consecutive.

Breach of Magistrate's Court offences: 1 year's imprisonment, consecutive to current Indictment.

Total: 1 year and 9 months' imprisonment. 

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Counts 2 and 3 arise from the same course of conduct and so should be concurrent.  Count 1 in unconnected and should be consecutive.  Conclusions on Count 1 increased due to breach of trust.

Count 1:	3 months' imprisonment.
Count 2:	3 months' imprisonment, consecutive.
Count 3:	3 months' imprisonment, concurrent.

Breach of Magistrate's Court offences: 1 year's imprisonment, consecutive to current Indictment.

Total: 1 year and 6 months' imprisonment.

Forfeiture and destruction of the drugs ordered.

Ms E. L. Hollywood., Crown Advocate.

Advocate R. S. Tremoceiro for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for attempted larceny of medication, larceny of medication and possession of the same type of medication, Fentanyl.  The offences were committed shortly after he had been sentenced in the Magistrate's Court for illegal entry and larceny, assault and possession of cannabis, and attempting to obtain prescription drugs by false pretences, for which he received 12 months' Probation and a Community Service Order totalling 180 hours, none of which has been served, so he now stands to be sentenced for those offences as well. 

2.        All of these offences were driven by the defendant's long-term addiction to drugs.  He has little memory of the offences which were committed in order to gain access to drugs when, in his words "nothing else mattered to him".  He has an appalling record and is assessed at a high risk of reconviction.  He has had access in the past to support to assist him in becoming abstinent but has chosen to maintain inappropriate friendships.  He has not consented to probation or to community service in respect of which he has, in any event, a poor record of compliance. 

3.        The Crown sees no reason to depart from the decision of the Magistrate in relation to the breach offences and moves that those sentences should be consecutive to the current offences, thus moving for a total sentence of 1 year and 9 months. 

4.        In terms of mitigation the defendant has pleaded guilty; he has been cooperative with the police and has made admissions which have been of value to the police.  The defendant accepts the conclusions of the Crown in relation to the breach offences.  As Mr Tremoceiro has said on his behalf, he sees his best chance is to continue in prison where he is drugs free, undertaking courses, keeping physically fit, and attempting to make a fresh start.  Mr Tremoceiro does, however, disagree with the Crown seeking to make Counts 2 and 3 of the Indictment consecutive and we agree with him.  Those offences, the larceny and possession of the Fentanyl, arose out of the same course of conduct and should be dealt with concurrently, but they should be consecutive to Count 1 which was an entirely separate offence.  Furthermore we agree with Mr Tremociero that 6 months' imprisonment for Count 3 is too high and is not supported by the cases cited by the Crown.  We are however going to increase slightly the sentence for Count 1 because it involved a breach of trust. 

5.        Therefore the defendant is sentenced as follows.  Dealing firstly with the Indictment under Count 1, the attempted larceny, you are sentenced to 3 months' imprisonment, Count 2, the larceny, you are sentenced to 3 months' imprisonment, consecutive to Count 1, Count 3, the possession of the Fentanyl, you are sentenced to 3 months' imprisonment, concurrent to Count 2 and consecutive to Count 1, making a total of 6 months' imprisonment.  Turning to the breach offences, for the assault you are sentenced to 1 year's imprisonment, for the illegal entry and larceny to 1 month's imprisonment, concurrent, for the possession of the cannabis, to 1 month's imprisonment, concurrent and for the false pretences, to 2 months' imprisonment, concurrent, making a total of 1 year's imprisonment for the breach offences.  We agree that these should run consecutive to the Indictment offences which will make a total sentence of 1 year and 6 months' imprisonment. 

6.        We also order the forfeiture and destruction of the drugs and discharge the Probation and Community Service Orders. 

Authorities

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

AG-v-Alves, Vieira and Vieira [2011] JRC 179B.

AG-v-Hussain and MacKenzie [2012] JRC 056.

AG-v-Gouveia [2011] JRC 095.