[2011]JRC108
ROYAL COURT
(Samedi Division)
1st June 2011
Before :
|
J. A. Clyde-Smith, Commissioner, and Jurats
Le Cornu, Morgan, Fisher, Nicolle, Crill and Le Brocq.
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The Attorney General
-v-
Ashley Anaise Hamon
Lee Michael Boustouler
Sentencing by the
Superior Number of the Royal Court
to which the accused were remanded by the Inferior Number on 15th April, 2011, following
guilty pleas to the following charges:
Ashley Anaise Hamon
First Indictment
1 count of:
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Being concerned in the supply of a
controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
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1 count of:
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Possession of a controlled drug, contrary to
Article 8(1) of the Misuse of Drugs (Jersey)
Law 1978 (Count 4).
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1 count of:
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Obstructing a police officer in the
execution of his duty, contrary to Article 19(7)(a) of the Misuse of Drugs
(Jersey) Law 1978 (Count 5).
|
Second Indictment
1 count of:
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Being concerned in the supply of a
controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
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Age: 35.
Plea: Guilty.
Details of Offence:
First Indictment: Count 1:
During June 2010 Boustouler entered
a shop and removed food to the value of £8.15 leaving the store without
paying.
Initial offending involving Hamon
and Boustouler
During February 2010 police officers
executed a warrant at the defendants’ home. Hamon put controlled drugs in her mouth
and despite being told to spit it out refused to cooperate (Count 5). Eventually Hamon spat out a chewed up
plastic wrap containing remnants of brown powder later analysed as heroin, the
remnants of which weighed 367 milligrams and contained 34 per cent by weight of
diamorphine with a total street value of £350. The police expert concluded the original
piece of plastic was of a sufficient size to contain 1 gram of heroin.
Items seized from the address
included cut plastic bags consistent with the preparation of wraps for the
supply of controlled drugs, weighing scales and five mobile telephones, all
which suggested that there had been drug related activity at the address. Examination of the mobile phones seized
showed the defendants were sourcing drugs for their own personal use and
jointly concerned in the onward supply of drugs during January and February
2010, (Counts 2 and 4).
Breach of Probation Order
Boustouler, having pleaded guilty to
the offence of larceny in June 2011, was in breach of a Royal Court Probation
Order imposed in April 2010. The
breached offences comprised:-
1. Obstruction of a police officer;
2. Possession of Oxcoydone;
3. Possession of a small amount of cannabis; and
4. Larceny of a charity box.
Second Indictment
After her initial arrest Hamon
continued to source drugs from Pereira
which she sold without Boustouler’s help. During the three days preceding their arrest
on 3rd August, various text messages were sent by Hamon to Pereira which contained
requests to be supplied with a wholesale amount of controlled drugs.
Pereira was
arrested at his home address with Hamon who he drove there in his car. During a search of their persons, Pereira was found in
possession of a small black bag containing 2.7 grams of heroin with a street
value of £2,600 and wholesale value of between £500 and
£700. Hamon was in possession
of £160 cash, a syringe and a spoon.
A search of Pereira’s
flat revealed a safe containing over £4,000 cash and a large silver
coloured combat knife. A subsequent
search of Hamon’s address revealed drug paraphernalia.
Both Hamon and Pereira entered not
guilty pleas and a trial was set for March 2011. Hamon subsequently pleaded guilty
however the trial dates were changed to April then may due to Pereira dismissing his Advocate and his
counsel need time to prepare.
During April Pereira failed to return from an authorised trip out of the
jurisdiction and failed to appear for his trial. His arrest was ordered and he remains at
large.
Details of Mitigation:
Hamon entered guilty pleas,
forthcoming after Boustouler gave a prosecution statement and confirmed he
would evidence at her trial. No
previous drug convictions. Hamon
had not offended since 2008.
Vulnerability of Hamon due to earlier childhood events which resulted in
her being prescribed valium which was the start of her addiction.
Previous Convictions:
14 previous convictions
comprising 60 offences majority of which are offences of dishonesty. No previous drug related
convictions.
Conclusions:
First Indictment
Count 2:
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5 years’ imprisonment.
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Count 4:
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18 months’ imprisonment,
concurrent.
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Count 5:
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3 months’ imprisonment,
concurrent.
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Second Indictment
Count 1:
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5 years’ imprisonment, concurrent to
the First Indictment.
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Total: 5 years’ imprisonment.
Forfeiture and destruction of
drugs sought.
Sentence and Observations of Court:
Conclusions
granted.
Lee Michael Boustouler
First Indictment
1 count of:
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Larceny (Count 1).
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1 count of:
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Being concerned in the supply of a
controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
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Age: 34.
Plea: Guilty.
Details of Offence:
See Hamon above.
Details of Mitigation:
Was cooperative from an early
stage and entered a guilty plea.
Had suffered delay; had been remanded on bail with strict conditions for
over a year pending the trial of his co-accused. Reports showed that Boustouler had made
progress in staying away from heroin and turning his life around and was
applying for various jobs with an offer of temporary work.
Boustouler was exceptionally
entitled to mitigation arising from his cooperation in providing a statement to
the police and being willing to give that evidence at trial which was
instrumental in securing the guilty pleas ultimately entered by Hamon.
Previous Convictions:
9 previous convictions comprising
27 offences, 13 of which are for drug offences between 2000 and 2010. Most were possession offences with 1
conviction for possession of heroin with intent to supply in 2007 which
received 2 years’ imprisonment.
Conclusions:
First Indictment
Count 1:
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18 months’ Probation Order plus a 6
month Treatment Order.
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Count 2:
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240 hours’ Community Service Order,
equivalent to 18 months’ imprisonment.
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Breach of Probation Order dated 16th April, 2010:
18 months’ Probation Order, concurrent with Count 1.
Total: 240 hours’ Community Service Order
plus an 18 month Probation Order together with a 6 month Treatment Order.
Forfeiture and destruction of
drugs sought.
Sentence and Observations of Court:
First Indictment
Count 1:
|
18 months’ Probation Order plus a 12
month Treatment Order.
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Count 2:
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240 hours’ Community Service Order,
equivalent to 18 months’ imprisonment.
|
Breach of Probation Order dated 16th April, 2010:
18 months’ Probation Order, concurrent.
Total: 240 hours’ Community Service Order
plus an 18 month Probation Order together with a 12 month Treatment Order.
Forfeiture and destruction of
drugs ordered.
Ms E. L. Hollywood, Crown Advocate.
Advocate S. A. Pearmain for Hamon.
Advocate J. W. R. Bell
for Boustouler.
JUDGMENT
THE commissioner:
1.
The Court
is concerned with two sets of offences involving the supply of heroin. Taking the first set of offences these
relate to a period between January and February 2010 when the defendants were
living together, sourcing and distributing heroin to fund their own habit. On 10th February, 2010, the police searched
their home. Hamon, on seeing the
police officers, put something in her mouth. Eventually she spat out a chewed up plastic
wrap found to contain 367 milligrams of heroin, enough to make up seven deal
bags, with a maximum street value of £350. The plastic wrap was of a sufficient
size to contain one gram of heroin and it was clear to the police that she had
consumed some of the contents. A
number of articles used in drug related activity were seized. Analysis of the five mobile phones show
the defendants not only sourcing drugs for their personal use, but their
involvement in its onward supply.
Under this First Indictment the defendant Boustouler is also to be
sentenced for the larceny of food valued at £8.15 from Marks and
Spencer.
2.
Following her
arrest, the defendant Hamon continued to source heroin without
Boustouler’s help from the defendant Pereira with whom she stands indicted under
the Second Indictment. Pereira absconded from
the Island in April 2011 whilst on bail and a
warrant has been issued for his arrest.
On 3rd
August, 2010, she was arrested in a car with Pereira outside his premises and he was found
to be in possession of a small bag contained 2.7 grams of heroin, sufficient to
make fifty-two bag deals with a maximum street value of £2,600. Analysis of text messages make it clear
that Pereira
was in the course of supplying this heroin to Hamon.
3.
Hamon was
not cooperative with the police and pleaded not guilty to the substantive
charges against her. On 23rd December, 2010,
Boustouler, who had pleaded guilty to the substantive charges against him under
the First Indictment, provided the Prosecution with a statement confirming Hamon’s
involvement and his willingness to give evidence against her at trial. As a consequence of this, on 21st January, 2011,
Hamon changed her pleas to guilty in relation to the First indictment, and on
11th February, guilty to the Second Indictment.
4.
Hamon has
fourteen previous convictions comprising sixty offences, the majority being
offences of dishonesty committed to fund her drug addiction, but no previous
drug related convictions.
Boustouler has nine previous convictions comprising twenty-seven offences,
thirteen of which are for drug offences.
5.
In her
social enquiry report Hamon minimises her involvement in these offences,
although she has, by letter given to us today, now accepted full
responsibility. She is assessed at
a high risk of re-offending and has not consented to community service. As a consequence the probation department
are unable to make any firm recommendation. In his social enquiry report the probation
department tell us that there has been a “sea-change” in
Boustouler’s behaviour over the last year in which he has engaged
consistently with the staff at the Alcohol and Drugs Service and the Probation
Service to coherently address his drug misuse. Mindful of the seriousness of the
offence of supplying heroin, they respectfully urge the Court to depart from
its normal sentencing policy and allow him to continue on his current path of
recovery and change and to continue to make progress away from his previous
life which was unproductive, self destructive and almost wholly driven by his
drug dependence. The Crown feel
able to endorse that recommendation.
6.
The Rimmer
guidelines establish a starting point of between 7 and 9 years for trafficking
offences of between 1 and 20 grams of heroin and the Crown submit that 8 years
is the appropriate starting point in this case for both defendants.
7.
For Hamon,
applying consecutive sentences to the two sets of offences would have resulted
in too high a sentence and the Crown therefore moves for slightly higher
concurrent sentences to take into account the offending as a whole. Thus it moves for a sentence of 5
years’ imprisonment in total.
8.
In terms
of mitigation, dealing firstly with Hamon, she has pleaded guilty but that was
only forthcoming, in our view, after Boustouler had confirmed he was prepared
to give evidence against her. We
have considered very carefully the mitigation put forward by Advocate Pearmain
on her behalf; the letters both from her and from her family and we note the
presence of the family in Court and their support. We have also taken into account the
circumstances of her background and how she came to be addicted to drugs. We note the very positive steps she has
taken in prison to be drug free and engage positively in her work and
activities there and we commend her for this.
9.
Turning to
Boustouler, he of course has pleaded guilty, has been cooperative from the
outset and we have also listened at all of the mitigation put forward on his
behalf by Mr Bell. There have been
lengthy delays in sentencing through no fault of his, during which he has,
however, made the very positive progress outlined earlier by the probation
department. He has also
exceptionally confirmed his willingness to give evidence against Hamon and was
instrumental in bringing about her guilty pleas. Drug trafficking relies on fear and
intimidation and it has long been the policy of the Court to reward those who
are prepared to assist in this way.
10. We intend to follow the conclusions recommended
by the Crown in respect of both defendants with small amendments. We do not think there is any discrepancy
in the treatment of the two offenders.
It is the policy of the Court, as we said, to reward exceptional
cooperation of the kind given by Boustouler and in doing so his sentence will
obviously be demonstrably lower than hers.
Furthermore Hamon, having been arrested on first set of offences, then
went on to deal in heroin; this is an aggravating factor which, in our view,
justifies the sentence against her.
11. Taking Hamon first, under the First Indictment;
Count 2 you are sentenced to 5 years’ imprisonment, Count 4; 18
months’ imprisonment, concurrent and Count 5; 3 months’
imprisonment, concurrent. Under the
Second Indictment Count 1 you are sentenced to 5 years’ imprisonment, concurrent,
which is a total of 5 years.
12. Mr Boustouler, on Count 1 you are sentenced to
18 months’ probation and a 12 month Treatment Order, on Count 2; 240
hours’ community service, which is the equivalent of 18 months’
imprisonment and an 18 month Probation Order for the breach of the probation
which is to be served concurrently.
In terms of the Probation Order, in addition to the normal conditions
that are imposed on anybody undertaking probation, you will firstly abstain
from all illegal and non-prescribed opiates which will be confirmed by random
and routine drugs tests and this for the full duration of the 18 month
Probation Order; secondly, you will attend weekly appointments with the
probation officer and the drugs and alcohol counsellor for the first 3 months;
thirdly, you will attend the “Offending
is not the only choice” programme; fourthly, you will comply with
the treatment goals agreed with the Alcohol and Drug Service; and fifthly, you
will attend any other courses and programmes which may be determined by the
probation officer.
13. We order the forfeiture and destruction of the
drugs.
Authorities
Whelan on Aspects of Sentencing in
the Superior Court of Jersey.
Rimmer,
Lusk & Bade-v-AG [2001] JLR 373.
AG-v-La
Pavoux & Baumgartner [2003] JRC
075.
AG-v-Durkin
& Ors [2004] JRC 163.
AG-v-Hume
& Ors [2006] JRC 076.
AG-v-Dos
Santos & Ferro [2011] JRC
020.