2001/100

ROYAL COURT

(Samedi Division)

 

4th May 2001

 

 

The Attorney General

-v-

William George McClean

 

1 count of:	Obstructing a police officer in the execution of his duty Count 1;
3 counts of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 2: Heroin Count 3: Heroin Count 5: Heroin
1 count of:	Possession of a controlled drug with intent to supply, contrary Article 6(2) of the Misuse of Drugs (Jersey) Law 1978:  Count 4: Heroin
1 count of:	Being concerned in the supply or on the making of an offer to supply, a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: Count 6: Heroin

 

[ On 12^th April 2001, the Crown abandoned Count 3 and a not guilty plea to Count 6 was accepted. ]

 

Age:     24

 

Plea:    Guilty

 

Details of Offence:

Defendant, a known heroin addict, was arrested as he arrived at his place of work and was about to meet two other men (known to the police as drug users).  The police officer informed the defendant that he was going to be searched and as the officer was about to place his hands in one of the defendant’s trouser pockets the defendant attempted to run away and subsequently wrestled with the officer on the pavement.  Another officer came to assist and the defendant continued to struggle until restrained and placed in a police vehicle (count 1). Once in the vehicle the defendant was asked if he had any drugs on him and produced one bag of heroin (49mg, 40% purity, street value £50.00)(count 2).

On arrival at Police Headquarters, police searched the vehicle in which the defendant had been transported and located 8 cling films wraps of heroin in a carrier bag (total weight 641mg, 37% purity, street value £400) (count 4)

A small package containing 206mg of heroin (41% purity, street value £100) fell out of one of the defendant’s socks as he was being searched at Police Headquarters (count 5). All these events took place on 16^th November 2000.  The defendant made admissions during the course of the question and answer interview that the 8 wraps of heroin found in the police vehicle were his and changed his plea of guilty to possession with intent to supply two of those wraps on 12^th April 2001 respectably in advance of trial dates fixed.  Basis of plea was that the defendant was to loan 2 wraps to two individuals and that the remaining 6 wraps together with other heroin (subject of counts 2 and 5) were for his personal consumption and that he did not regularly supply heroin to others.      

 

Details of Mitigation:

Guilty plea.  Volunteered first bag of heroin.  Tried to conceal 8 wraps of heroin, but during course of Q & A admitted heroin was his. Change of plea to guilty to possession of part of this heroin with intent to supply at respectably early date prior to trial dates fixed by Court.  Employment available, in custody since 16^th November 2000.  Completed drugs awareness course at prison.  Prior to offences in November 2000, had attempted to detoxify himself using the methadone programme and successfully detoxified during time spent on remand at H.M. Prison.  Defence counsel suggested that if court were to impose custodial sentence it should be in the order of 12 months to 18 months imprisonment rather than 2 years’ imprisonment moved for by the Crown and that serious consideration be given to imposing a probation order covered with a treatment order and community service in respect of count 4.  

 

Previous Convictions:

5 previous convictions for possession of Class B drugs (February 1995, November 1995, June 1998 and August 1999).  

 

 

Conclusions:

In relation to count 4 Crown proceeded on the basis that the Campbell guidelines did not apply as this was not a case of trafficking on a commercial basis.  Crown took the view that McLean’s involvement in arranging to loan the two wraps was akin to social sharing (see paragraph 15 of Morgan and Schlandt-v-AG Court of Appeal 24^th April 2001)  and adopted a starting point of 6 years, and having made an allowance of 4 years for all available mitigation, moved for a sentence of 2 years’ imprisonment in relation to count 4.  Conclusions overall are as follows -

 

Count 1:	1 month’s imprisonment
Count 2:	2 months’ imprisonment, consecutive
Count 4:	2 years’ imprisonment concurrent to count 2
Count 5:	2 months’ imprisonment concurrent to count 2

 

Total:  2 years and 1 month’s imprisonment.

 

 

 

 

 

Sentence and Observations of Court:

Starting point taken by the Crown too high and mitigation allowances too great. Offending in this case (deliberate decision to supply drugs to two other persons in expectation of repayment in kind) more serious than social sharing referred  to in Schlandt’s case. Correct starting point 4 years. 2 years reduction for all available mitigation resulting in a sentence of 2 years’ imprisonment in relation to count 4. Other sentences to run concurrently making total of 2 years imprisonment.

 

Count 1:	1 month’s imprisonment
Count 2:	2 months’ imprisonment
Count 4:	2 years’ imprisonment
Count 5:	2 months’ imprisonment, all concurrent

 

Total: 2 years’ imprisonment.

 

P. Matthews, Esq, Crown Advocate.

Advocate R.J.F.  Pirie for the accused.

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.      The Crown has accepted that this was not a case of commercial supply.  The defendant’s sole intention was to loan two wraps of heroin to two people well known to him.  He would, in due course, have expected to be repaid with two wraps of heroin from them.  The remainder of the heroin was for his own use.  The Crown has accepted that in those circumstances the Campbell guidelines have no application.

 

2.      However, McClean, you have an appalling record, including five previous convictions for possession of controlled drugs.

 

3.      Nevertheless, we consider that the starting point is too high for what occurred in this case.  We have had regard to the recent decision of the Court of Appeal in Schlandt, but we take the view that the offending in this case was more serious than in Schlandt’s case.  It was not simply an occasion where drugs were shared in somebody’s home or at a party for no benefit whatsoever.  This was a deliberate decision to supply to two other people in the expectation of being repaid in kind in due course.  We think the correct starting point is one of four years. 

 

4.      In mitigation, Mr Pirie has referred, of course, to the guilty plea, to the considerable efforts which you have made to conquer your habit and he has explained the reasons for the relapse from the methadone programme which you were on.  He has also referred to your excellent work record and this stands you in good stead. 

 

5.      Nevertheless, we think that the Crown allowed far too much, by way of deduction from its original conclusion, bearing in mind the many previous convictions.  We think, overall, that the correct deduction from the starting point is one of two years.  We also conclude that, having regard to the overall sentence, we will make the sentence on count one concurrent with the other sentences.

 

6.      Accordingly, the sentence of the Court is as follows; on count 1: one month imprisonment, count 2: 2 months imprisonment, count 4: 2 years imprisonment, count 5: 2 months imprisonment, all of them concurrent make a total of 2 years and we order the forfeiture and destruction of the drugs. 

 

Authorities

AG-v-Prior and Ors (25^th November 1994) Jersey Unreported.

Prior and Ors-v-AG (26^th February 1995) Jersey Unreported CofA.

AG-v-McClean (20^th August 1999) Jersey Unreported [1999/144];

Morgan and Schlandt-v-AG (24^th April 2001) Jersey Unreported [2001/88]