Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - Class B.

[2015]JRC147

Royal Court

(Samedi)

3 July 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Kerley and Sparrow

The Attorney General

-v-

Laurence Nicholas Sutton

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

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).

Age:  20.

Plea: Guilty.

Details of Offence:

Customs officers at the Post Office Headquarters opened a package addressed to "L Sutton" at his home address.  Inside was a brown padded envelope containing a transparent sachet labelled "Ethylphenidate Crystal".  The contents were analysed and found to contain 100.78g of Ethylphenidate - a Class B drug.  Equivalent to 1,000 - 4,000 doses.  Estimated purchase price was £500 - £600: street value in Jersey £8,000.  The defendant was arrested at his home address and various drug paraphernalia was seized.  He admitted previously injecting Ethylphenidate Crystals but denied any knowledge of the postal package and claims someone who disliked him might be responsible for this.  Denial in interview. 

The Crown took as its "starting point" the bottom end of the 5,600 to 56,000 guideline in Campbell v Attorney General.

Details of Mitigation:

The Crown

Guilty plea.  Assessed as being at high risk of re-conviction.  Previous addiction and abuse of illegal drugs.  Youth - still aged 20 and therefore within the provisions of Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 1994.  Previous convictions consisting of 10 Counts of precisely the same offence albeit for different "New Psychoactive Substances".  In breach of pre-existing Probation Order. 

The Defence

Conclusions too high.  Defendant been making good progress under the Probation Order but girlfriend became pregnant and lost child and this triggered him back into drug use.  Had an outstanding debt and agreed to be involved in the importation. 

Guilty plea.  Apology to Court and family.  Still only 20 and therefore benefit of youth.  Family members in Court to support him.  Constructive use of time in prison.  Letter of remorse and certificates confirming education courses taken whilst in prison.

Previous Convictions:

2 convictions for a total of 19 offences.  10 x drug importations, obstruction, malicious damage, assault, miscellaneous motoring and offence of sending obscene/indecent messages under the Telecommunications Law. 

Conclusions:

The Crown did not seek any additional penalty for the breach of Probation Order.  The defendant had already served 12 months on remand which would have been the Court's sentence on the earlier occasion.

Count 1:

16 months' youth detention.

Breach of Probation Order imposed by the Royal Court on 22 August 2014:- 1 month's youth detention, concurrent to Count 1.

Total: 16 months' youth detention.

Confiscation Order adjourned for a date to be fixed. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

In August 2014 the Court had given him a chance and placed him on Probation for importing NPS.  Now the defendant is before the Court for importing 100.78g of Ethylphenidate.  These NPS drugs are causing a serious drug problem and until the defendant recognises this he will be back and forth before the Court. 

In mitigation the Court noted guilty plea, age and that was using time on remand constructively.  The defendant had very realistically accepted that custody was inevitable particularly in the light of the breach of Probation Order.  The Court agreed with this and in compliance with its duty under Article 4 of the Young Offenders Law noted the defendant had been unwilling or unable to comply with a non-custodial sentence and the offending was too serious to justify anything other than a custodial sentence.  The Court noted the dangers and damage that NPS drugs were doing in the Island.  The Court took a serious view of any importation of a commercial quantity of drugs.  This is the second occasion that the defendant has committed such an offence and he had been subject to a Probation Order and spent time on remand.  There was no alternative other than youth detention. 

However, in light of the mitigation, the Court felt able to lightly reduce the conclusions.  In relation to the breach of Probation Order the Crown moved for 12 months' youth detention, concurrent but the defendant had already served that period on remand prior to the Probation Order being imposed.  However it is a quirk of the legislation that any time on remand is not to be taken into account.  It would be wrong in principle to double-count and therefore the Court imposed a minimal sentence for the breach of probation.

Count 1:

15 months' youth detention.

Breach of Probation Order: 1 month's youth detention, concurrent to Count 1 and discharge the Probation Order.

Total: 15 months' youth detention.

Forfeiture and destruction of drugs ordered.

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

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE commissioner:

1.        In August 2014 the Court gave you a chance and placed you on probation for importing "New Psychoactive Substances" (NPS', as they are called).  But now you have imported by post 156 grams of Ethylphenidate which is another NPS.  It is a Class B drug, with a street value of £8,000.  It is clear from all the reports, and I think you accept, that you have a serious drug dependency and until you can manage to overcome that, you are going to find yourself getting into trouble and probably coming back before the Court again.  But it is to your credit that you have recognised that. 

2.        In mitigation Advocate Harrison has not only referred to your guilty plea and your age of 20 but also too, the efforts you have been making in prison whilst on remand to attend various courses which, it is hoped, will help you in that respect and also educationally so that you are well prepared when you come out. 

3.        But very realistically Advocate Harrison has accepted, and I think you have accepted, that in view of the fact that you are in breach of the Probation Order for such a similar offence, the Court really has no alternative but to pass a custodial sentence and we agree.  We must, of course, bear in mind Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 but in our judgment you first of all have shown yourself unable or unwilling to respond to non-custodial sentences but equally importantly we consider that this offending, given your previous one, is too serious to be dealt with by way of a non-custodial penalty.  The Court has on a number of occasions emphasised the dangers of these NPS's and the damage that they can do to young people.  We therefore take a serious view of any importation of a commercial amount, let alone somebody who does it on a second occasion when they are subject to a Probation Order.  So there is no alternative to youth detention.  The question then is the length.  We feel in the light of the progress you are making in custody and your youth, and the other matters put forward by Advocate Harrison that we can reduce the conclusions a little.

4.        The sentence of the Court is one of youth detention of 15 months.  In relation to the breach of probation, the Crown had moved for 12 months', concurrent, which is the sentence which the Court said last time would have been the correct sentence but, of course, you have already served that on remand.  The quirks of the legislation are such that, if we were now to impose a sentence of 12 months, any time spent on remand would not be counted against that.  Now on the facts of this case it would not make any difference because we are passing a concurrent sentence of 15 months but, nevertheless, in principle it must be wrong to pass a sentence which could result in an offender effectively serving a sentence twice.  So we think the right course is to pass a nominal sentence.  The Court does have the power and the right to mark a breach of probation so we impose a sentence of 1 month's youth detention, concurrent.  So the total is 15 months and we remind you that you may be liable to supervision on your release. 

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

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994

Campbell, Molloy and Mackenzie-v-AG [1995] JLR 136.

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

AG-v-De Freitas, Sutton, Savile and Cousins [2014] JRC 158.