Superior Number Sentencing –drugs - possession with intent to supply – Class B.

[2014]JRC172

Royal Court

(Samedi)

15 September 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner with Jurats Kerley, Marett-Crosby, Nicolle, Milner, Olsen and Blampied.

The Attorney General

-v-

Anthony Andrew Dryden

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 11th July, 2009, following a guilty plea to the following charges:

1 count of:	Possession of a controlled drug with intent to supply it to another, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  24.

Plea: Guilty.

Details of Offence:

During a search of the defendant’s house, just under 2 kg of mephedrone was found in 6 plastic containers.  

The maximum street value of these drugs is approximately £119,000, equating to £60 per gram.  The wholesale price is estimated to be approximately £10 per gram.  

During interview the defendant admitted to actively acting as a ‘minder’ for a friend and was aware the containers contained some form of illegal drugs.  Call logs were seized from the defendant’s phone and showed a continuous communication with the same friend for whom he was ‘minding’ the drugs (Count 1). 

In addition 1.23g of cannabis was also found during the search (Count 2). 

Details of Mitigation:

The defendant was remorseful for his actions, pleaded guilty and was cooperative with Customs. 

Previous Convictions:

Ten previous convictions, including possession of cannabis. 

Conclusions:

Count 1:	3½ years’ imprisonment.
Count 2:	1 month’s imprisonment, concurrent.

Total: 3½ years’ imprisonment. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 1:	2 years and 9 months’ imprisonment.
Count 2:	1 month’s imprisonment, concurrent.

Total: 2 years and 9 months’ imprisonment. 

Forfeiture and destruction of drugs ordered.

C. M. M. Yates, Esq., Crown Advocate.

Advocate L. V. Marks for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for possession of the Class B drug, mephedrone, one of the new psychoactive substances or NPS’s, with intent to supply and possession of 1.23 grams of cannabis resin.  The mephedrone weighed almost 2 kilograms and the maximum street value of which is approximately £119,000.  We were told that the wholesale price would be £10 per gram or £20,000. 

2.        The defendant told the police at interview that he had been asked by a close friend to look after the package containing what he thought would be cannabis and which, when he saw the contents, he thought might have been cocaine.  He was not sure if he was going to be paid, he said that had not yet been discussed and he had not heard of mephedrone before and he did not think the package was worth anything like the sum of £119,000. 

3.        There are no sentencing guidelines for offences involving Class B drugs other than cannabis as submitted by the prosecution, but there have been a number of cases involving NPS’s with a much lower street value where young male offenders have ordered the drugs over the internet.  In those cases the defendants were dealt with by way of community service.  In the case of AG v Diogo [2014] JRC 153 the Court extracted the following principles from those cases:-

“(i)      Trafficking in Class B drugs is a serious offence.  The legislation has placed upon it a maximum sentence of 14 years;

(ii)       At levels which might attract the imposition of the Campbell v AG [1995] JLR 136 guidelines (the category C guidelines start at 1 – 10 kilograms which would attract a starting point of 2-6 years before mitigation is applied), the policy of the Court will be to pass very significant sentences.  There is a question whether the Court will actually apply the guidelines themselves for the reasons explained by the Court in AG v L’Enfant;

(iii)      At levels which are below the Campbell guidelines the starting point remains a custodial sentence.  As the Court said in AG v Sanguy-

“The policy of this Court is well established in relation to the importation/supply of drugs.  It is that a prison sentence will almost invariably follow.  But the Court has made exceptions in respect of Class B drugs where comparatively small amounts are involved and where there is exceptional mitigation.”

4.        Now this case is within the category C Campbell guidelines which as stated provide that for a weight of 1 – 10 kilograms there should be a starting point of between 2 and 6 years.  The Court pointed out in AG v L’Enfant [2013] JRC 169 that there are difficulties in applying these guidelines partly because street values attributed to those guidelines need to be updated but also because, quoting from paragraph 5 of the judgment in L’Enfant:-

“…it is not obvious what the damage done to our community is by the importation of these drugs in question in this case, and that damage is an essential ingredient in assessing either the defendant’s involvement in drug trafficking or the gravamen of the offence.”

5.        The prosecution have indicated a starting point of 6 years which is the top of the range set out in the Campbell guidelines and have moved, after allowing for mitigation, for a sentence of 3½ years for this importation.  In terms of mitigation the defendant has pleaded guilty and he was co-operative with the Customs.  We received and read his letter of remorse and the other letters and we note the presence of his family supporting him here in Court today.  We have also had consideration to the other documents that have been before the Court.  As Advocate Marks, however, has pointed out the Campbell guidelines expressly apply to all cases involving the trafficking of Class B drugs.  This is in fact the first case involving NPS’s which has come within the Campbell guidelines and after consideration we have come to the view that for consistency we should apply those guidelines.  It troubles us that we have no expert evidence as to the danger done by these drug, save that they have of course been classified as Class B prohibited drugs for good reason by the States of Jersey and their importation therefor must be damaging to the community.  Anecdotally there have been reports of deaths resulting from their use. 

6.        Taking the weight of these drugs the starting point would be around 2-3 years, applying Campbell but as made clear in L‘Enfant street value is a relevant factor and in a view of the street value of the drugs imported here, we think this justifies increasing the starting point within the Campbell guidelines, but not to 6 years.  We determine the correct starting point as being 5 years.  And we would just add, as made clear by the Court of Appeal in the case of Vipond v AG [2004] JCA 086:-

“…a minder performs a fundamental role ensuring that drugs reach their intended market and being entrusted with a large amount of drugs suggests a close relationship with supplier, there is therefore no reason why he should not be treated as a principal offender subject to the same starting point as to sentence as any other major participant in arranging the supply of drugs.”

7.        In relation to Count 1 you are sentenced to 2 years’ and 9 months’ imprisonment, to Count 2 to 1 month’s imprisonment, concurrent.  

8.        We order the forfeiture and destruction of the drugs. 

Authorities

AG v Diogo [2014] JRC 153.

Campbell v AG [1995] JLR 136.

AG v L’Enfant [2013] JRC 169.

Vipond v AG [2004] JCA 086.

Welsh v AG [2002] JLR N 16.

Welsh-v-AG 2002/72.

AG v Fage and Romeril [2014] JRC 114.

AG v Crabtree [2013] JRC 196.

AG v Moody [2012] JRC 183.

AG v Sanguy [2012] JRC 170A.