[2010]JRC039
ROYAL COURT
(Samedi Division)
19th February 2010
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Before :
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W. J. Bailhache, Esq., Deputy Bailiff, and
Jurats Morgan and Kerley.
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The Attorney General
-v-
Lene Pestana Hilario
Sentencing by the Inferior
Number of the Royal Court,
following guilty pleas to the following charges:
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1 count of:
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Possession of a controlled drug with intent
to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
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5 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 3, 4, 5, 6 and 8).
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Age: 27.
Plea: Guilty.
Details of Offence:
Hilario was a front seat passenger
in a vehicle which was stopped and when searched found to be in possession of 5
wraps of heroin (Count 2) weighing a total of 386 milligrams. Street value of £450. Also found in possession of 4.58 grams
of cannabis resin (Count 3) with a street value of between £20 and
£30, 2.69 grams of herbal cannabis (Count 4) with a street value of
£35-30, and 3 Diazepam tablets (Count 5), street value £15-30.
A search was subsequently undertaken
of his home address and various pieces of cannabis found weighing a total of
164.56 grams, street value £940 (Count 6). Six Diazepam tablets were also
found. They had a value of
£13-60 (Count 8).
Hilario was co-operative in
interview making full admissions.
He admitted possession of the heroin but claimed that he was
“minding it” for a person he was not prepared to name. His role was to hide it. He was not to benefit or use the heroin
nor was he to be paid for providing this service. The herbal cannabis and diazepam found
on him were all for personal use.
He had a heavy cannabis habit and he had purchased it so he would have a
ready supply over the forthcoming month.
The 6 diazepam tablets were for his own personal use.
The Crown accepted the factual basis
put forward for the heroin and for the cannabis found at the flat. The Crown took a “starting
point” of 5 years for the heroin (Count 2).
Details of Mitigation:
The Crown
The Crown has accepted that for
the purposes of the heroin he was a “minder” or
“caretaker”. Benefit of
guilty plea entered on Indictment.
Co-operative with the police and gave consistent account as to his
dealings with the drugs seized. The
Crown considered him to be a relatively young man. Entitled to some credit for residual
youth. He did not have the benefit
of good character. Expressed regret
and remorse. Assessed at high risk
of re-offending. The Crown’s
view was that a custodial sentence was appropriate. Sentences for the various counts to be
concurrent.
Defence
Facts set out clearly by Crown
and accepted that Count 2 was the most serious offence. Using time in prison positively; he had
enhanced status. He was the
principal carer for his sick and aging parents. When employed stayed away from drugs and
when unemployed then the cycle of drug abuse and conviction followed. He needed help and support to overcome
his drug problems. Suggested
“starting point” sought by the Crown was too high. Commended non-custodial recommendation
as contained in the reports as the most suitable option.
Previous Convictions:
9 convictions for a total of 18
offences including 2 possession of drug offences, grave and criminal assault,
common assault, resisting police, possession of an offensive weapon, larceny,
public order and motoring.
Conclusions:
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Count 2:
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2 years’ imprisonment.
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Count 3:
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1 month’s imprisonment, concurrent.
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Count 4:
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1 month’s imprisonment, concurrent.
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Count 5:
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1 week’s imprisonment, concurrent.
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Count 6:
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4 months’ imprisonment, concurrent.
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Count 8:
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2 weeks’ imprisonment, concurrent.
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Total: 2 years’ imprisonment.
Forfeiture and destruction of
drugs sought.
Sentence and Observations of Court:
Hilario was to be
sentenced for 5 counts of possession of controlled drugs and 1 count of
possession of a Class A drug with intent to supply. This last count was the most
serious. The Court’s approach
to sentencing for such an offence normally required a custodial sentence. In this particular case the Court found
some exceptional reasons and it was, therefore, going to give Hilario a chance;
last chance to avoid a custodial.
Exceptional reasons found by the Court were as follows:-
(a) Small amount of Class A.
(b) Positive recommendation in background reports.
(c) Court satisfied of genuine expression of
remorse.
(d) He spent 4 months in custody and had received
positive reports of behaviour whilst in prison.
The Court noted that
he had opportunities in the past and had not taken advantage of them. He should consider himself very fortunate
that he was to be given a further opportunity. Hilario was aged 27 and the Court
commented on the concept of “residual credit” for youth. Whilst the Court had not heard argument
they expressed the view that they doubted whether a person over 21 was entitled
to any credit for age. The Criminal
Justice (Young Offenders)(Jersey) Law 1994
distinguished between those under and over 21. There might be exceptional reasons why
somebody up to the age of 23 was deserving of credit. Here the defendant was age 27 and he
should, therefore, have known better.
The Court, therefore, did not take into account any mitigation for
youth. If the Court had imposed a
custodial sentence then it agreed with the Crown that 5 years would have been
the appropriate “starting point” on Count 2. The offences were not for personal gain
and he was at the bottom end of drug chain. Finally, had a custodial sentence been
imposed then the Court agreed with the Crown that a 2 year sentence would have
been appropriate. The Court warned
Hilario of the consequences were he to breach the Court’s orders or to
re-offend. He will be returned to
Court and almost inevitably sentenced to prison. The risk was with him. This was the last chance he was going to
be given.
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Count 2:
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240 hours’ Community Service Order
plus a 12 month Probation Order and a 6 month Treatment Order.
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Count 3:
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50 hours’ Community Service Order,
concurrent.
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Count 4:
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50 hours’ Community Service Order,
concurrent.
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Count 5:
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40 hours’ Community Service Order, concurrent.
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Count 6:
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100 hours’ Community Service Order,
concurrent.
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Count 8:
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40 hours’ Community Service Order,
concurrent.
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Total: 240 hours’ Community Service Order
plus a 12 month Probation Order and a 6 month Treatment Order.
Forfeiture and destruction
of drugs ordered.
J. C. Gollop, Esq., Crown Advocate.
Advocate C. R. Baglin for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1.
You are
here to be sentenced today on 5 counts of possession of controlled drugs and 1
count of possession of a Class A drug (Heroin) with intent to supply. The Court takes that last charge clearly
as the most serious of the charges which face you and in accordance with
practice and normal circumstances approaches any sentencing of possession of
Class A drugs with intent to supply as one which requires normally, a custodial
sentence.
2.
In this
particular case, the Court has decided that there are some exceptional reasons
why we are prepared to give you a chance which should be described as a
“last chance” and avoid a custodial sentence being imposed. Those exceptional reasons really are
these:-
(i)
First of
all there was a very small amount of Class A drug involved in this case;
(ii) Secondly, there have been some very positive
recommendations from the Probation and the Drug and Alcohol Service as to their
recommendations for treatment;
(iii) Thirdly, the Court is satisfied with some clear
evidence of remorse on your part and;
(iv) Finally, the Court has noted that you have
spent 4 months in custody already and that there have been very positive reports
in relation to your behaviour in prison while on remand, and the Court has very
much taken that into account.
3.
I should
say that you have had opportunities in the past of which you have not taken
advantage and that is why I emphasise to you again that this is a “last
chance” because there will be very unlikely to be any further
opportunities in that respect.
4.
You are
aged 27 and in those circumstances I want to say just something about this
concept of residual credit for youth.
A person is generally entitled to treat his or her youth as a mitigating
factor because by reason of that young age the inexperience of the accused
reduces his or her culpability. The
concept of residual youth is one with which the Court has some difficulty; no
authority was put to us in support of the contention and it has not been one
which has been argued, as far as we are aware in any detail and so the comments
which this Court makes must be taken against that background; we have not had
the benefit of detailed argument on it.
Nonetheless, the Criminal Justice (Young Offenders)(Jersey) Law 1994
distinguishes between those who are aged under and over 21 and the Court is
very doubtful about the proposition that a person over the age of 21 is able to
claim mitigation for youth. If
there is some area of discretion around the edges it might exceptionally, take
into account a person up to the age of 23, if the facts justified a conclusion
of particular immaturity in such a person.
At all events in your case, you are 27, and by the age of 27 you should
certainly know how to avoid offending in the way that you have and the Court
does not take into account, in the sentence which is about to be imposed, any
mitigation for the purposes of youth.
5.
If a
custodial sentence had been imposed, we take the view that a 5 year starting
point would have been appropriate in relation to Count 2 (possession of Class A
drug with intent to supply); we note what has been said by your counsel that
you stood to have no personal gain and that your contribution was at the bottom
of the drugs chain and indeed, we have proceeded on that basis, nonetheless, we
think that the 5 year starting point would have been appropriate and indeed, if
a custodial sentence had been imposed, we think that 2 years would have been
the sentence which the Court would have imposed on Count 2.
6.
For the
reasons I have given, the exceptional circumstances and in the hope that you
are going to turn your life around, the Court is going to impose on Count 2;
240 hours’ Community Service Order which you must perform and in
addition, impose a Probation Order of 12 months and a 6 month Treatment
Order. In relation to Counts 3 and
4, the sentence is 50 hours’ Community Service Order, concurrent on each
count, Count 5; 40 hours’ Community Service Order, concurrent, Count 6;
100 hours’ Community Service Order, concurrent, Count 8; 40 hours’
Community Service Order, concurrent.
I emphasise to you that if fail to perform any part of the Community
Service Orders or if you fail to act in accordance with the requirements of the
Probation and Treatment Orders, then you will be brought back before this Court
for sentence on all the counts on the Indictment. The risk is not with the Court, the risk
is with you and you should be very clear that this one chance, and a last
chance that you are being given today.
So in all, a sentence of 240 hours’ Community Service and a 12
month Probation Order and 6 month Treatment Order.
7.
We order
the forfeiture and destruction of the drugs.
Authorities
Criminal Justice (Young Offenders)(Jersey) Law 1994.
Rimmer
and Others-v-AG [2001] JLR 373.
AG-v-Welsh
[2000] JLR N 59b.