[2008]JRC144
ROYAL COURT
(Samedi Division)
29th August 2008
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Before :
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J. A. Clyde-Smith, Esq., Commissioner and
Jurats Le Brocq and Tibbo.
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The Attorney General
-v-
Lee Thomas John Buckley
Sentencing by the Inferior
Number of the Royal Court,
following guilty pleas to the following charges:
First
Indictment
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1 count of:
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Supplying a controlled drug, contrary to
Article 5(b) of the Misuse of Drugs (Jersey)
Law 1978. (Count 1).
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2 counts of:
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Possession of a controlled drug, contrary to
Article 8(1) of the Misuse of Drugs (Jersey)
Law 1978. (Counts 1 and 2).
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Second
Indictment
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1 count of:
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Acquiring or having possession of property
representing the proceeds of drug trafficking, contrary to Article 38(1) of
the Drug Trafficking Offences (Jersey)
Law 1988. (Count 1).
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Age:31.
Plea:Guilty.
Details of Offence:
First Indictment
Buckley was seen in a shop in St Helier passing a small package to Nikki Isobel Manson
(see AG v Manson [2008] JRC
108). The Police arrested both
individuals and Manson dropped a package and tried to kick it into the
street. The package was seized and
found to contain 692 milligrams of heroin containing 16% by weight of
diamorphine. The wholesale value
was £100-£150. The
street value, on the basis that there was sufficient heroin to make 14
“street deal bags”, sold at £50 per bag, was £700. It was accepted that Manson had paid
Buckley £100 for the heroin (Count 1). Buckley was searched and was found to be
in possession of a further 52 milligrams of heroin consistent with a “50
bag” and consisting of 33% by weight of diamorphine (Count 2). A search of his house revealed 15.98
grams of cannabis (Count 3) and cash in the sum of £1,420.
Buckley initially declined to answer
questions but subsequently claimed that the heroin etcetera found on him was
for personal use. He also admitted
that the cannabis was his. He
declined to answer any questions in relation to having supplied Manson.
Second Indictment
Whilst on bail pending Indictment on
the above Counts, Buckley attended, at night, at a property in the country with
a co-defendant. The property was
under Police surveillance. Buckley
and the co-defendant entered the garden of the property and was seen to be
rummaging around the hedgerows etcetera.
As they left the garden Police Officers went to arrest the two men, but
Buckley ran away and was not detained.
He was in breach of his curfew and an arrest order was made subsequently
by the Magistrate’s Court. He
subsequently handed himself into the Police and again in interview declined to
answer questions. He subsequently
provided a factual basis for a guilty plea to the extent that he had been asked
by a third party, who he was not prepared to name, to go and collect some money
that had been concealed within the garden of the property. He did this and collected approximately
£200. He ran away when he saw
the Police and threw the money away.
He knew that the monies were the proceeds of drug trafficking.
On the First Indictment the Crown
took the view that an appropriate starting point would be one of 6 years having
reviewed the authorities. The Count
on the Second Indictment was not susceptible to the starting point approach to
sentencing. The Crown, however,
sought a consecutive sentence.
Details of Mitigation:
In the Crown’s view,
Buckley had the benefit of his guilty pleas but not the benefit of youth or
good character. Whilst initially
not co-operative he had subsequently produced a factual basis for the guilty pleas
entered by him. He had also
expressed remorse and had the benefit of good character references and had made
efforts, whilst on remand, to rid himself of his addiction.
The Defence agreed with a
starting point of 6 years. They
maintained that no profit had been made by Buckley in relation to the supply of
heroin. The issue of delay was also
raised. He had been co-operative by
providing a factual basis for his guilty pleas. This was particularly relevant to the
Second Indictment. He had the benefit
of his guilty plea. There was
support in the reports for a non-custodial option. He had the benefit of the support of his
parents and it was accepted that he did not have an attractive criminal record.
Previous Convictions:
Buckley had a total of 5 convictions
for 35 offences including offences of violence, dishonesty, motoring,
possession of controlled drugs, possession with intent to supply controlled
drugs and public order offences.
Conclusions:
First Indictment
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Count 1:
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3 years’ imprisonment.
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Count 2:
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6 months’ imprisonment, concurrent.
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Count 3:
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6 months’ imprisonment, concurrent.
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Second Indictment
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Count 1:
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6 months’ imprisonment, consecutive to
First Indictment.
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Total: 3 years’ 6 months’
imprisonment.
Forfeiture and destruction of
drugs sought.
The Crown also sought a
confiscation order in the sum of £1,529. This was initially opposed but
subsequently agreed by the defendant and, therefore, ordered by the Court on the 5th September, 2008.
Sentence and Observations of Court:
First Indictment
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Count 1:
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3 years’ probation.
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Count 2:
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3 years’ probation, concurrent.
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Count 3:
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3 years’ probation, concurrent.
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Second Indictment
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Count 1:
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3 years’ probation, concurrent to
First Indictment.
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Total: 3 years’ probation.
The defendant was a 31
year old drug addict who was facing 4 offences. The last offence had been committed
whilst on bail. A specific factual
basis had been put forward and agreed for the supply of heroin. The supply was to a fellow addict who
had paid £100. The Court
quoted from Crown Advocate Whelan’s text and stated that it felt that the
Crown had been in error in recommending a sentence less than 7 years. The Court’s view was that such a
departure should only be permitted in exceptional cases. In relation to the Article 38 offence
there was no guidelines for sentencing.
The Court had noted the guidance provided in the case of AG v Fagan. Whilst the Crown’s conclusions
were fully justified and appropriate, the Court was going to take a very
exceptional step and impose a 3 year probation order with specific
conditions. The Court felt that Buckley
was at a crossroads with his addiction and had been impressed with his
letter. The Court was prepared to
give him one last chance to overcome his addiction. If there was any failure then the
alternative would be custody. The
Court noted that there had been some delay but made no criticism of the
Prosecution for that delay.
The probation order is
to follow the usual conditions together with the following specific additional
conditions:
1. To attend Alcohol
and Drugs Service for 12 months and comply with any directions of the Alcohol
and Drugs service.
2. To take any other
programmes the Probation Officer may require Buckley to undertake.
3. For the whole
period of 3 years to remain absent from all non-prescribed drugs, to be
confirmed by random drugs tests. A
single failure of the random drugs test would result in a breach of probation.
Forfeiture and
destruction of drugs ordered.
J. C. Gollop, Esq., Crown Advocate.
Advocate M. H. Temple for the Defendant.
JUDGMENT
THE Commissioner:
1.
The
defendant is a 31 year old drug addict with a poor criminal record, who stands
to be sentenced for four offences involving the supply of heroin to a fellow
addict; possession of heroin for personal use; possession of cannabis for
personal use; and finally, acquiring or possessing approximately £200,
being the proceeds of drug trafficking.
The latter offence was aggravated by his being on bail at the time.
2.
Taking the
most serious offence of supplying heroin, the defendant has provided a specific
factual basis for his plea, and indeed on the other counts, which in relation
to the supply, was that in order to help a fellow addict at a time when supply
in the Island was low, he obtained low quality heroin for £200 (approximately
0.7 of a gram) which he intended to split with her at cost, for which purpose
he borrowed some scales from a friend.
The amounts supplied to the fellow addict was approximately 0.375 of a
gram.
3.
The Crown
have referred to Whelan On Sentencing which says at paragraph 151(b):-
“It has now become apparent
from observations of the Superior Number in Miah
and Lihou [2003] JCA 135 that an argument that ‘social’ supply (i.e.
on an allegedly non-profit basis) does not amount to commercial trafficking is
unlikely usually to find favour.
Any cash sale is likely to be treated as commercial dealing, so as to
come within the Rimmer guideline, although “a very tiny supply
well below one gram” might justify a starting point below the guideline. The Court put the matter this way: “The
sad fact is that much of the retail dealing in the island is done by one heroin
addict to another. It is simply not
possible for the Court to know, in most cases, whether an individual sale is
profitable or not. Such a matter
lies wholly in the knowledge of the seller and he or she is most unlikely to
admit the truth of the matter if it were to affect sentence.””
4.
The Courts
in Campbell and Rimmer have made it clear that it will be seldom
for the starting point for any amount of drugs to be below 7 years. Given the lack of profit and the amount
supplied, the Crown move for a starting point of 6 years. We do think that the Crown are in error
for doing so, as the authorities are clear. The lack of profit and the amount
concerned here would not ordinarily constitute grounds from departing from the
7 years starting point, in our view.
5.
Of the
other offences, the Crown move that the Article 38 offence should attract a
consecutive sentence. There are no
guidelines for this offence. A
third party, who he has not been prepared to name, asked the defendant to
retrieve a few hundred pounds, which had been secreted in the house of a Jason
Bayliss, who was on remand for drugs offences. The defendant knew that the money
represented the proceeds of crime.
He approached the property at night but after retrieving the money, panicked
when disturbed by the police and ran off.
The money was thrown away and lost.
We agree that a consecutive sentence would ordinarily be
appropriate.
6.
In terms
of mitigation the defendant has pleaded guilty and has been cooperative. In our view he effectively wrote his Indictment
in relation to the Article 38 offence.
He has many moving letters of support.
7.
Whilst the
conclusion of the Crown would ordinarily be appropriate, we are prepared in
this case as an act of mercy to take the very exceptional step of considering
the imposition of a 3 year probation order on condition that the defendant
remains drug-free and submits himself to random testing for the whole of that
period. We do so because we feel
that the defendant is at a crossroads.
The route of all of your problems is your addiction to heroin which you
have acknowledged in your letter, with which we have been very impressed. You describe it as an awful affliction,
which we agree it is, causing misery not only to you but to your family, and
you have expressed a deep sense of shame.
You have always had, and continue to have, the support of your family,
who in no way condone your addiction, and you have asked to be given what would
be a last chance to beat this addiction, with the support of your family and
the Drugs and Alcohol Service.
8.
You should
be under no illusion that if there is any breach of these conditions, if they are
accepted by you, you will be returned to this Court and would likely face a
custodial sentence. In considering
this exceptional course, we have also taken into account the fact that you have
been in custody since the 10th March and there has been a considerable
delay. We make no criticism of the
Prosecution in that respect but it is a fact that the case against you has been
long delayed.
9.
I am going
to read the conditions Mr
Temple that the Court
would wish to impose so that you can take instructions on whether those
conditions are going to be accepted, because you and the defendant need to be
clear that if they are not accepted then the Court would otherwise be
considering the conclusions of the Crown.
The three conditions are that the defendant will attend the Alcohol and
Drugs Service for a period of 12 months as directed by the Probation Officer
and comply with all treatment goals and testing as required by the
service. That, in fact, is a
standard condition. Secondly, that
he will attend any other programmes that the Probation Officer may
require. The third condition is
that for the whole of the period of probation of 3 years, the defendant will be
abstinent from all non-prescribed medication, to be confirmed by random drug
testing. For the avoidance of doubt:-
(i)
This
condition applies notwithstanding that the defendant may have completed the
various programmes directed by the Probation Office; and
(ii) a single failure of a drug test will constitute
a breach of probation.
[Conditions accepted]
10. Mr Buckley, you are sentenced as follows on all
of the counts in the First and Second Indictment; to 3 years’ probation,
concurrent on the usual conditions but conditional upon the following in addition
to the usual conditions; that you attend the Alcohol and Drugs Service for a
period of 12 months’ as directed by the Probation Officer and comply with
all treatment, goals and testing as required by the Service; that you will
attend any other programmes that the Probation Officer may direct; that for
whole of the period of the probation of 3 years’ you will be abstinent
from all non-prescribed medication to be confirmed by random drug testing. For the avoidance of doubt, this
condition applies notwithstanding that you may have completed, any programmes
directed by the Probation Officer and any single failure of a drug test will
constitute a breach of probation.
11. We order the forfeiture and destruction of the
drugs
Authorities
Whelan Aspects of Sentencing in the
Superior Court of Jersey.
Rimmer,
Lusk and Bade-v-AG [2001] JLR 373.
Campbell, Molloy and MacKenzie
–v- AG [1995] JLR 136.
AG
v Manson [2008] JRC 108.
Drug Trafficking Offences (Jersey) Law 1988.
Miah
and Lihou v AG [2003] JCA 135.
AG
v Fagan [2005] JRC031.
AG
v Fowler and Fowler [2006] JRC
175.