2001/31

ROYAL COURT

(Samedi Division)

 

5th February 2001

 

 

The Attorney General

-v-

Alan James Smitton

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10th November, 2000 following guilty pleas to:

 

2 counts of:	possession of a controlled drug with intent to supply, contrary to Article 6 (2) of the Misuse of Drugs (Jersey) Law 1978: Count 2: cannabis resin. Count 9: heroin.
4 counts of:	possession of a controlled drug, contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law 1978: Count 3: cannabis. Count 4: cannabis. Count 5: heroin. Count 7: cannabis
1 count of:	supplying a controlled drug, contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978: count 6: cannabis
1 count of:	possession of cannabis. Following an admitted breach of a 1 year probation order, made in the Magistrate’s Court, on a guilty plea.

 

[On 10th November, 2000, the accused pleaded not guilty to counts 1 and 8 of the indictment laid against him, which pleas were accepted by the Crown].

 

Age:     28

 

Plea:    Guilty.

 

 

Details of Offence:

The accused was arrested in a public house, and found to be in possession of approximately 55 grams of cannabis.  A search warrant was obtained and approximately 50 grams of cannabis, 180 milligrams of heroin plus £8,835 in cash was found at the accused’s home address.  The accused admitted to possession for personal use and supplying cannabis to his girlfriend (counts 1-6 are all related to this incident; a not guilty plea was accepted on count 1).  Two months later, whilst on bail for the above, a further drugs warrant was executed at the home address and a personal amount of cannabis and approximately 24.2 grams of heroin was found with a street value of £7,260.  (Counts 7-9 relate to this incident; a not guilty plea was accepted on count 8).

 

Details of Mitigation:

The death of the accused’s father had occurred a couple of weeks prior to the second incident.  The accused was a heroin addict at the time but has since undergone detoxification.

 

Previous Convictions:

In addition to various unrelated previous convictions: 2000, Jersey: one count of possession of cannabis for which he received 1 year’s probation.  1998, Liverpool: one count of possession of cocaine: £50 fine.  1996, France: importation of cannabis: 2½ years’ imprisonment: 10 year exclusion from France.

 

Conclusions:

These are the general conclusions.

 

Count 2:	8 months’ imprisonment.
Count 3:	1 month’s imprisonment
Count 4:	1 month’s imprisonment.
Count 5:	2 months’ imprisonment
Count 6:	1 months’ imprisonment.
Count 7:	1 month’s imprisonment
Count 9:	6 years’ imprisonment, all concurrent.

 

Probation Order to be discharged without further penalty.

 

Sentence and Observations of Court:

 

Conclusions granted.

 

 

N.M Santos-Costa, Esq., Crown Advocate

            Advocate N.J. Chapman for the Accused.

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        On 17th May the Defendant was found in possession of modest amounts of cannabis and heroin, mostly for his own use, although he admitted an intention to supply a small amount of cannabis to others.   He was also found in possession of £8,835 pounds in cash.   He was charged and remanded on bail by the Magistrate’s Court.   Despite this on 9th July when his premises were searched he was found in possession of a small amount of cannabis and 24.2 grams of heroin with a street value of some £7,260.   He has pleaded guilty to possession with intent to supply this heroin.  

2.        Mr. Chapman began his mitigation by attacking the starting point of nine years suggested by the Crown.  He referred the Court to the case of Whyte -v- A.G. (17th March, 1999) Jersey Unreported, CofA.   In that case he had sought to persuade the Court of Appeal that the case of Campbell & Ors-v-A.G. (1995) JLR 136 CofA., was wrong in rejecting the approach of the English Courts as set out in R-v-Aranguren (1995) 16 Cr. App. R. (S) 211, namely, that the Courts should measure the quantity of drugs by reference to weight and purity.

3.        The Court of Appeal in Whyte rejected that submission and adhered to the test laid down in Campbell  but the Court went on to say:

"We are quite clear in our view that the relative purity of the drug is still bound to be a relevant consideration, for example in assessing its street value and there never was any intention that the purity of the drug should or indeed could ever be wholly excluded."

4.        We entirely accept that approach but purity is only one aspect of the matter.   Indeed, in Jersey it may not be as significant as in England where the Courts are frequently dealing with large hauls of drugs worth millions of pounds.   In such cases there is a real likelihood of the cutting, or dilution, of pure quantities of heroin.  In Jersey we deal with comparatively modest amounts by comparison.   They are much less likely to be cut and even if they are cut the difference in value is unlikely to be very material.   Nevertheless the Court will have regard to purity and give it such weight as is justified by the circumstances of the particular case.

5.        Mr. Chapman then referred to the case of A.G-v-Trinidade (20th July, 2000) Jersey Unreported.   He pointed out that this involved a similar weight of heroin but the purity in that case was 80% compared with the purity in the present case of 40%.   In Trinidade a starting point of 9 years was approved.  Mr. Chapman argued that therefore a lesser starting point in this case had to be taken in order to reflect the lesser purity.   But in our judgment that is to fail to give sufficient weight to two points.  The first is that the amount of the drug is only one aspect of what the Court must consider when deciding on the starting point.  We refer again to the passage from Campbell where it is said:

"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."

6.        Secondly, it is wrong to pick one case and then try and distinguish that on the facts or draw conclusions from it.   It is perfectly possible, although we express no opinion on this as we do not know the full facts, that the starting point in Trinidade was on the low side.   What we have to do is take account of the broad generality of cases in order to fix upon the right starting point.  In our judgment a starting point of 9 years for what the Defendant did in this case is correct. 

7.        We then look at the mitigation.   As Mr. Chapman has rightly said there was an early guilty plea although we accept that in the light of the fact that he was caught in flagrante delicto with this quantity of drugs a full one third discount is not appropriate.   Neither is the mitigation of no previous record available because this Defendant has three previous convictions for drug offences and, indeed, is in breach of a Probation Order imposed for the possession of drugs.   We have considered the other matters such as the letter of remorse from the Defendant, the references, the fact that his father died at a critical moment - and this has clearly had a considerable impact on him - and the other matters referred to in the papers.  Taking all these into account we think that the Crown has made sufficient allowance.

8.        The sentence of the Court therefore is to grant the conclusions of the Crown namely, on count 2, 8 months’ imprisonment; count 3, 1 month’s imprisonment; count 4, 1 month’s imprisonment; count 5, 2 months’ imprisonment; count 6, 1 month’s imprisonment; count 7, 1 month’s imprisonment; count 9, 6 years’ imprisonment; all of those to be concurrent.   The Crown has not sought to impose a penalty for the breach of probation and you can perhaps think yourself fortunate in that regard but accordingly we simply discharge the Probation Order and order the forfeiture and destruction of the drugs.

 

 

Authorities

Campbell & Ors. -v- A.G. (1995) JLR 136 Cof A.

Whyte -v- A.G. (17^th March, 1999) Jersey Unreported Cof A.

A.G. -v- Trinidade (20^th July 2000) Jersey Unreported.

Chevalier -v- A.G. (29^th September, 1999) Jersey Unreported.

R. -v- Aranguren (1995) 16 Cr. App. R. (S) 211