Superior Number Sentencing – drugs – possession with intent
to supply – Class A.
[2015]JRC066
Royal Court
(Samedi)
30 March 2015
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Before :
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J. A. Clyde-Smith, Esq., Commissioner, and
Jurats Kerley, Nicolle, Crill, Liston and Grime.
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The Attorney General
-v-
Thomas Oliver Howard
Sentencing by the
Superior Number of the Royal Court, to which the accused was remanded by the
Inferior Number on the February, 2015, following a guilty plea to the following
charge:
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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 1).
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Age: 22.
Plea: Guilty.
Details of Offence:
On 24th January, 2013,
the defendant was sentenced to 312 hours’ community service and 2
years’ probation for one count of conspiracy to import 246 g of
heroin.
On 31st August, 2014, the
defendant was stopped as he entered Jersey Live. His outer clothing was searched and
nothing of interest was found. He
was transported to Police Headquarters where a strip search was carried
out. He told the officers that he
had something in his boxer shorts and produced a bag containing 45 ecstasy
tablets with an average of 100 mg MDMA.
The street value was between £900 and £1,125 and more likely
to be at the upper end as the drugs would have been sold at Jersey Live.
In interview, the defendant was
partially cooperative. He admitted
that he had taken the tablets into Jersey Live and that they were not for his
own use, but refused to say where or from whom he had received the drugs.
Details of Mitigation:
The Crown
Guilty plea, partial cooperation,
difficult background, father to two small children (the mother of the elder
child had committed suicide in 2012 and the defendant had found her body),
emotionally vulnerable due to anniversary of partner’s death.
The Defence
Agreed to take the drugs into
Jersey Live only a matter of hours before the offence, very distressed and
remorseful, residual youth, uncertainty over who would care for elder daughter,
urged a tailored community based sentence.
Previous Convictions:
11 convictions, the most serious
of which was the 2013 conviction for conspiracy to import heroin.
Conclusions:
The defendant had completed all of
his community service before the offence was committed. The Crown therefore treated the breach
as an aggravating feature and did not seek an additional penalty.
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Count 1:
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Starting point 7½ years. 3½ years’ imprisonment.
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Discharge of Probation Order
imposed by the Royal Court on 24th January, 2013.
Forfeiture and destruction of
drugs sought.
Sentence and Observations of Court:
The Jurats were split,
but by a majority they felt custody could be avoided. He has exhausted the mercy of the Court,
but would be given a last chance as an act of mercy for his elder daughter.
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Count 1:
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Starting point 7 years’
imprisonment. 456 hours’
Community Service Order, equivalent to 3 years’ imprisonment, together
with a 2 year Probation Order with the condition that any work to be
undertaken as recommended by the Probation Department.
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2 years given in which
to complete the Community Service Order.
Discharge of Probation
Order imposed by the Royal Court on 24th January, 2013,
ordered.
Forfeiture and
destruction of drugs ordered.
E. L. Hollywood, Crown Advocate.
Advocate L. V. Marks for the Defendant.
JUDGMENT
THE commissioner:
1.
The
defendant stands to be sentenced for the possession of 45 ecstasy tablets with
intent to supply, with a street value of between £900 and
£1,125. He had taken the
tablets into Jersey Live concealed in his underpants. The Crown has accepted that he took the
tablets into the festival at the request of another, who he did not name, to be
handed over to the owner once inside.
In return he would be reimbursed the cost of the ticket and would be
given two tablets which he would have taken.
2.
The
defendant is aged 22. For the first
10 years of his life he enjoyed a close relationship with his father who, in
2004 when the defendant was 10, was sentenced to 13 years custody for drugs
offences. After the father’s
release in January 2012, the father relapsed into heroin use, attending a
detoxification unit in Harrowgate at a cost of some £4,000. In order to pay this debt the father
asked the defendant, who was then aged 19, to assist in the importation of
heroin into the Island. The
defendant and his father were arrested and sentenced on 24th
January, 2013, and on that occasion the Court felt able to spare the defendant
a custodial sentence.
3.
Although
the current offence was committed within the 2 year probationary period that
was imposed in 2013, the defendant has completed all of his community service
and the various courses that were recommended by the Probation Department.
4.
It would
seem that before this offence he had argued with his partner and the day of the
offence was the anniversary of the death of his previous partner (the mother of
his eldest child). He told the Probation
Department that on that day he was “all
over the place” and “not
thinking straight”.
5.
The social
enquiry report says this at paragraph 52:-
“On the basis of what is
known it is difficult to understand the decision Mr Howard took to commit this
offence. He was aware how fortunate
he was not to have received custody for the previous serious drug offence. It had appeared he had taken full
advantage of the Court’s leniency in that he had gained stability and was
making a success of his life. He
had gained stable accommodation, stable employment and had engaged well in the
thinking skills course undertaken with this service. The indications were that he was not
embroiling himself in offending behaviour and was looking to continuing a
positive life with his long term partner and his two young children.”
6.
Following
the guideline case of Bonnar v AG [2001] JLR 626 the starting point for
this quantity of drugs is 7-9 years.
The Crown say the defendant was actively involved in the supply of
dangerous drugs to the public, mainly young persons, and the starting point
should be 7½ years. Allowing
for mitigation the Crown seeks a sentence of 3½ years.
7.
In terms
of mitigation the defendant has pleaded guilty although he was not fully
cooperative with the police in that he refused to say where he had acquired the
drugs and, in the Crown’s view, he misled the police by failing to
disclose he had a laptop which contained encrypted files which it has not
proved possible to access. He is
the father of two young children.
Whilst on bail he and the older child have lived with his maternal
grandmother and spending three nights a week with his partner and their younger
child.
8.
The
Superior Number in Fowler-v-AG [2007] JRC 044 said this in relation to
family hardship:-
“9 Hardship to a family, including
children, is often an inevitable consequence of sending an offender to prison
and yet that is not a reason, by itself, for not imposing a prison
sentence. Society requires that
serious offences be punished adequately and the offender should think of the
consequences before he, or she, commits the offence. However, as Thomas, in Principles of
Sentencing, makes clear on page 212:
“Family hardship may be a
ground for mitigation of the sentence where the particular circumstances of the
family are such that the degree of hardship is exceptional, and considerably
more severe than the deprivation suffered by a family in normal circumstances,
as a result of the imprisonment.””
The prospects now for the care of the oldest
child (who has already lost her mother) if the defendant were to be imprisoned
is very uncertain. She may well be
taken into care.
9.
Advocate
Marks has put forward a very strong case in mitigation and asked the Court to
exercise mercy for the sake, in particular, of the oldest child. This is a very serious offence, taking a
Class A drug into Jersey live, which is mainly attended by young people. The defendant was given a chance as
recently as 2013 when he was involved, as we have said, in a serious drugs
case, regrettably, very much at the instance of his father. It has to be said that much of the
mitigation placed before us today was before the Court then. For the defendant, as the father now of
two young children, to have consented to undertake this offence is grossly
irresponsible. He should have
thought of his two children before agreeing to take these drugs into Jersey
Live, and I am sure he feels ashamed of the actions that he took.
10. The jurats were unable to agree at first as to
whether imprisonment could be avoided, but after much discussion and by a
majority, they have agreed to do so as an act of mercy and for the sake, in
particular, of the older child.
11. We need to say this though to you that you have
exhausted the mercy of this Court.
If you come again before us you cannot expect your children and, in
particular your oldest child, to rescue you from the consequences of your
actions. I hope you
understand.
12. We have agreed a starting point of 7 years in
this case and you are going to be sentenced therefore to 456 hours’ community
service, which is the equivalent of 3 years’ imprisonment and you will
have 2 years in which to complete that community service. We are also going to place you on
probation for 2 years on condition that you undertake the psychological work
recommended by Dr Emsley and such other work for which you may be assessed as
being suitable by the Probation Department.
13. If you do not comply with the community service
or do not complete it or in any way breach the terms of your probation and you
come back before us, then you will almost certainly go to prison.
14. We discharge the previous Probation Order.
15. We also order the forfeiture and destruction of
the drugs.
Authorities
Bonnar
v AG [2001] JLR 626.
Fowler-v-AG
[2007] JRC 044.
AG
v Riley [2014] JRC 248.
AG
v Lusk [2015] JRC 015.
AG
v O’Shea [2010] JRC 040.
AG
v Howard and Howard [2013] JRC 018.