1999/193 - AG v McCarthy [1999] UR 193 (1 November 1999)

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1 count of: possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:

Count 1: MDMA.

Age: 22 (23 on 2 November 1999)

Plea:Guilty

Defendant observed at a rave at Jersey Holiday Village, Portelet entering the gentleman’s toilets on a number of occasions. Approached by police officer who showed his warrant card. Defendant tried to escape but there were over 1,000 people present and he was unable to get away. When searched he was found to have 14 ecstasy tablets in his pocket. Gave a no comment response at interview. Wholesale value of tablets seized £140 to £196: street value £280 at £20 per tablet. Defendant had been on bail for most of his remand. Defendant produced medical evidence indicating he was a long term drug abuser who had overdosed on ecstasy on at least two previous occasions causing him to be admitted to the Accident and Emergency Department at the General Hospital. The defendant’s drug abuse had led to damage of his kidneys and he had the renal function of an 80 year old. It was accepted that the 14 tablets were for his personal use on the basis of the medical records.

Conclusions wrong in principle (Buesnel) and even if not they were excessive. Custody unnecessary and undesirable: seek individualised sentence. Very supportive family, parents in Court. Sister died of drug overdose in 1997. Drinking had led him to commit the previous offences noted above at a time when he was in bad company. Admitted long standing drug problem. Submitted that Young spoke of "exceptional circumstances" but Buesnel had moved away from that straight-jacket. The only simple possession case met with imprisonment since Buesnel was Jones. Submitted that reform was better than imprisonment and reform could be achieved by probation, SMART course and Alcohol and Drug Service random urine analysis.

No previous drug related convictions but four offences - breaking and entering, malicious damage, obstructing/refusing to obey and breaking and entering in respect of which he had been sentenced to 6 months’ Youth Detention.

Starting point of 12 months imprisonment taking into account available mitigation.

The Court could not find exceptional circumstances as in Buesnel allowing them to depart from a custodial sentence. Court unanimously concluded that it could not find circumstances not to impose a custodial sentence.

THE COMMISSIONER: This case has required the Court to examine the circumstances most carefully in the light of the judgment of the Full Court of AG -v- Buesnel (21^st August, 1996) Jersey Unreported. In that judgment the Court examined the previous authority of AG -v- Young (1980) JJ 281 which had been followed for a long time since 1980 regarding sentencing policy in relation to Class A drugs. What the Court said in Buesnel at p.4 is:

"our conclusion is that the policy laid down in 1980 in the case of AG -v- Young is too much of a straight jacket and does not allow sufficiently for the variety of circumstances which may be relevant both to the offence of possessing a Class A drug and to the offender himself. We have noted that in England the Court of Appeal has declined to lay down guidelines at all."

Accordingly, in the light of the Buesnel judgment, the Court has taken time to examine all the circumstances of the commission of this offence before arriving at its conclusion. The choice is clearly between custodial or non-custodial and if the former then how much should that custodial sentence be?

There are a number of factors in this case which I wish to mention. First of all regarding the offence itself. It was committed during a "rave" with young people and it is fair to say that the accused’s immediate reaction and during police investigation afterwards was one of non-co-operation. One has to take account of the amount of ecstasy tablets in his possession. It was 14 and we had to decide whether that was "not insignificant" (Buesnel). We accept that these tablets were for his own use and we have not speculated as to whether he might or might not have sold some to his friend but we are satisfied that, regarding the amount, it was not insignificant. So much for the offence itself.

I now turn to McCarthy’s background. He had an upbringing with supportive parents and until tragedy hit his family in 1997 there seems to this Court little reason why he should have taken to the drugs’ scene as he did. Clearly he was drinking too much. Then taking cannabis and now charged with ecstasy. In other words, there has been an escalation over a period of time.

Looking at the defendant’s character, he is a first offender as regards drugs but he is clearly not a first offender, viz his previous offences. In the case of Buesnel, he was indeed a first offender and he sold two drugs. In Buesnel’s case he sought help. The accused in our opinion did not. If we look at the background to his drug-taking and his previous offences, we see that his previous offences started in 1993 and went on until 1995. Unhappily his sister died in 1997. However, by that time he had started on the present drug habit which has led to his appearance in Court today.

The record of his involvement is clearly set out in a letter from Dr. Vincent to Ogier & Le Masurier dated 3^rd May, 1999, after his arrest in March. He was admitted to the General Hospital in November, 1995, after ecstasy and diazepam abuse. Six diazepams were taken. In October, 1998, he was admitted to the Accident and Emergency Department with an overdose but no details were available. On 29^th November, 1998, he was once more admitted to the Accident and Emergency Department having ingested 17 ecstasy tablets, half a bottle of vodka and 4 joints of cannabis. He was discharged on 1^st December, 1998. In Dr. Vincent’s letter at paragraph three he states that, at his request, the defendant’s parents were not informed of his admission and he was referred to the Community Drug Team.

We have no note or indication of whether he went to the Community Drug Team and whether they had success. If he did go to them they did not seem to have succeeded because of the present offence.

There is then a letter from Dr. Menson dated 22^nd July, 1996. The doctor indicates to Dr. Le Gresley that the defendant assured him that he was now keenly into sporting activities and recognises that "he cannot do both". The doctor said "we had a frank and sensible discussion about drugs and the medical versus popular peer opinions on the danger of drugs. I think the message got through".

Sadly, it did not. Having looked at all those things long and anxiously and after giving careful consideration to the principles laid down in Buesnel the Court unanimously concluded that we cannot find circumstances in which not to impose a custodial sentence. When we come to the length of that sentence we are satisfied that the Crown has not asked for an unreasonable amount. McCarthy will therefore be imprisoned for nine months and the Court orders the forfeiture and destruction of the drugs.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey: Noter-Up: May 1996-1997): pp.2-5.

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	Jersey Unreported Judgments
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Jersey Unreported Judgments