Jersey Unreported Judgments

 2002/96

ROYAL COURT

(Samedi Division)

 

13^th May 2002

 

 

Laurence Antony Durkin

-v-

The Attorney General

Magistrate's Court Appeal

Appeal against a total sentence of 3 months' imprisonment, passed on 15^th April, 2002, following a Guilty plea to

 

2 counts of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:
Count 1:	Cannabis:
Count 2:	Heroin.

 

[At the appeal hearing the Court gave the appellant leave to appeal against his conviction on count 2].

 

Appeal against sentence on count 1, dismissed.

Appeal against conviction on count 2, allowed.

 

Advocate C. M. M. Yates, on behalf of the Attorney General.

Advocate Mrs S.A. Pearmain, for the appellant.

 

 

 

JUDGMENT

THE BAILIFF:

1.        This appellant pleaded guilty in the Magistrate's Court to 2 charges of unlawful possession of controlled drugs on the 18^th January, 2002, when a warrant was executed.  The first charge related to a small piece of cannabis resin, and a roach end.  The States Analyst reported that the cannabis weighed 85 milligrams and the roach end contained a substance derived from cannabis.

2.        The second charge related to a piece of stained foil and a foil tube which on analysis showed traces of diamorphine.  The appellant was sentenced on charge 1 to 1 month's imprisonment; and on charge 2 to 3 months' imprisonment, concurrent, making a total of 3 months' imprisonment.

3.        He appeals against those sentences on the ground that they are manifestly excessive.  The Magistrate was told by defence counsel that the cannabis was worth less than £1 and that the traces of heroin were worth £4 - £5.  The information given to the Magistrate was in fact in part incorrect.  The small quantity of heroin which the appellant admitted smoking the previous evening was probably worth about £5, but the traces which were found the following day were valueless.  The Court drew the attention of Mrs Pearmain, who appeared for the appellant, to a passage from Archbold (2002 Edition) at paragraph 26/67 which is drawn from a decision of the House of Lords in R-v-Boyesen (1982) AC 768.

4.        Having considered that passage, counsel for the appellant sought leave to appeal out of time against conviction on charge 2, notwithstanding the fact that a guilty plea was entered in the Court below.  We grant leave on the basis that the plea was entered under a misapprehension as to the law. 

5.        Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 makes it an offence to be in possession of a controlled drug.  The question here is whether a trace of heroin is sufficient to found a conviction for possession of a Class A drug?  This is a question of fact for the common sense of the tribunal.  If the trace is visible, tangible and measurable it is capable of constituting something of which it is possible to have possession, but if the trace does not fulfil those criteria it seems to us difficult to say that the accused person is in possession of a controlled drug  The reality, in this case, is that the accused had been in possession of heroin the previous day, but when arrested by the police on the 18^th January, he was in possession only of a stained tube and foil indicating his illicit activity the night before.

6.        He was not, in our judgment, in possession of a controlled drug on that day.  We emphasise that this decision is based upon the particular facts of this case.  Had the charge been differently framed so as to encompass a more extended period of time, or even a different date, then on the facts as we understand them the appellant would have been properly convicted.  The appellant is, therefore, fortunate because we agree with Advocate Yates who appeared for the Attorney General, that in relation to the appeal against sentence, having regard to the appellant's record and all the surrounding circumstances, it could not be said that the sentence of 3 months' imprisonment for possession of heroin was in any way manifestly excessive. 

7.        The result is that we dismiss the appeal against sentence on charge 1, that is to say for possession of cannabis but we allow the appeal against conviction on charge 2, and accordingly quash the conviction.  The appellant having served the sentence which was imposed in relation to charge 1, is therefore now at liberty.

 

Authorities

A.G.-v- Durkin (30^th October, 1998) Jersey Unreported; [1998/217].

A.G.-v-Rawlinson (2^nd February 2001) Jersey Unreported [2001/30].

A.G.-v-Lusk (12 April 2001) Jersey Unreported [2001/86].

A.G.-v-Munks (18 May 2001) Jersey Unreported [2001/111].

Archbold (2002 Edition): paras 26/67.

R-v-Boyesen (1982) AC 768.