Jersey Unreported Judgments

[2004]JRC036

ROYAL COURT

(Samedi Division)

 

23^rd February 2004

 

 

The Attorney General

-v-

Jonathan Michael Hasson

 

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded by the Inferior Number on 9th January, 2004, following a guilty plea to:

 

1 count of:

Possession of a controlled drug with intention to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978. Count 2: heroin.

 

[On 9^th January, 2004, count 1 of the indictment fell away].

 

Admitted breach of a 230 hour Community Service Order and of a 12 months' Probation Order made by the Royal Court on 5^th September, 2003: See: [2003]JRC153 and made up as follows: Community Service Order:  Count 1 (driving whilst disqualified: 50 hours; Count 2: driving uninsured: 50 hours, concurrent; Count 3: possession of heroin: 180 hours, consecutive; Count 4: possession of cannabis: 5 hours concurrent:  Total 230 hours Community Service Order.  The 12 months' Probation Order made for breach of a Magistrates' Court binding over order and Community Service Order made up as follows: Counts 1 - 3 (possession of drugs): 1 year's Probation Order; Count 4: [driving uninsured]: £100 fine or 1 week's imprisonment in default of payment; Count 5: (driving uninsured) 1 year's Probation Order.

Age:     27.

 

Plea:    Guilty.

 

Details of Offence:

A warrant was executed at the Defendant's flat, which he shared with his girlfriend and her young son.  A sniffer dog located approximately 35 grams of heroin in his bedside drawers.  The heroin had a purity of 7% by weight diamorphine.  During subsequent interview the defendant admitted that he was minding the heroin and that he had been told that it was of an inferior quality.  He said that he had taken possession of the drugs the previous night and had since tried to smoke and inject them.

The police expert gave a street value for the drugs of between £10,269 and £15,403 (despite the low concentration) and a wholesale value of between £5,134.50 and £6,846.

The offending put the defendant in breach of a prior Probation and Community Service Order dated 5^th September, 2003 (in turn in relation inter alia to drugs offences).

 

Details of Mitigation:

 Guilty plea, co-operation, remorse.

Defence counsel also argued that a reduction in the starting point should be made due to the low purity of the seized drugs.

 

Previous Convictions:

13 previous convictions comprising 26 offences (including five drug related offences).

 

Conclusions:

 

Count 2:

6 years' imprisonment.  (Starting point : 9 years' imprisonment).

Breach of Community Service Order and Probation Order:  Orders discharged; 12 months' total sentence, concurrent with sentence passed on present indictment.

 

Sentence and Observations of Court:

Conclusions granted save that the penalty on Count 3 of the breach reduced to 9 months concurrent.  6 years' imprisonment in total.  Destruction of drugs ordered.

The court declined to depart from Rimmer and did not make any reduction in the starting point in relation to the low purity of the heroin.

 

 

 

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

Advocate M.J. Haines for the Defendant.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        On the 5^th September, you were given a chance by this Court when it imposed probation and community service instead of sending you to prison.  The Court said on that occasion that if you committed further offences it seemed inevitable that you would go to prison.  Only 8 weeks later you were found in possession of 34 grams of heroin with intent to supply.

2.        The Court is willing to proceed on your version that you were minding these for a dealer to whom you owed money, but it is quite clear that there is no alternative to prison in view of your failure to take advantage of the opportunity given to you in September.

3.        The first task for us is to assess the starting point.  In accordance with the Rimmer [2001]JLR373 guidelines, you fall within the 20 -50 grams bracket where the starting point varies from 8 to 10 years.  The Crown has suggested 9 years and we agree with that, subject to consideration of the point of purity to which I will turn.

4.        Mr Haines has addressed us at considerable length on a number of matters but one of the matters he has raised is the question of purity.  The purity of this heroin was 7%.  In the case of Rimmer the Court considered this aspect and said at paragraph 28:

"....the degree of purity of a consignment of illegal drugs should generally not be taken into account.....

30.      On the other hand, we do not consider that there should be a reduction in the starting point where the degree of purity is below the average.  Usually, neither the carrier (as we have already noted) nor indeed the dealer have any regard to the degree of purity, and it would not be appropriate to make a reduction in such circumstances".

5.        We note too that in the case of A.G. -v- Welsh (3^rd February, 2000) Jersey Unreported [2002/21] the Superior Number refused to make a reduction where the purity was 8%; but it is right to say that in neither of these two Jersey cases was the Court referred to the English cases to which Mr Haines has referred us today.

6.        He relies on R -v- Afzal and Arshad 13 Cr. App. R(S)145 where the fact that the heroin was only of 1% purity was taken into account by the court so as to reduce sentence.  That case in turn referred to another case called R-v-French (1^st February 1990) in which a reduction was made where the purity was 3%.  Mr Haines also referred to the expert evidence given in Afzal by Dr Newton that 10% purity is really the weakest marketable quality of heroin. 

7.        The fact is that in French the court said that its decision to reduce the sentence because of purity should not be taken as a precedent unless there was a purity of 3% or less; and that particular comment was in endorsed by the court in Afzal. 

8.        So even if we were to feel able to agree with the sentiments expressed in those two cases, they are not applicable in this case where the purity is 7%.  In any event, we feel that we must proceed in accordance with the dicta in Rimmer.  We agree with Mr Haines that the court probably was not saying that low purity could never be taken into account, but it was clearly stating a firm general rule.  We think it is a sensible rule and therefore we do not propose to make any reduction in the starting point because the purity was 7%.  We do not think it makes any difference that in this particular case the defendant knew that this heroin was of poor quality and that therefore its market value may have been less than would otherwise have been the case.  We think the starting point should remain at 9 years, notwithstanding the low purity.

9.        In mitigation the main point in the defendant's favour is the guilty plea.  It has to be said that there is not in reality a great deal else.  He has a very poor record, including a number of previous drug offences.  Mr Haines took us through the record and explained some of the details but at the end of the day the record is there.

10.      Mr Haines also referred to residual youth - if one can call it that at this age, his previous good employment and his personal mitigation including his many attempts to conquer his heroin addiction.  All these can add very little and in our judgment a total deduction of 3 years is adequate to reflect the total available mitigation.

11.      The sentence of the Court on the count on the indictment is one of 6 years' imprisonment.  In relation to the offences for which you were placed on community service, we grant the conclusions in respect of counts 1, 2 and 4, that is 3 months, 3 months and 1 week respectively, all concurrent.  In relation to the possession of heroin (count 3), Mr Haines has argued that a greater allowance should be made to take into account the considerable period spent on remand prior to your being given community service in September and we think an allowance can be made for that and we vary that sentence to 9 months' imprisonment, concurrent.  Normally all these sentences would be consecutive to the sentence imposed today.  It could be said that you are quite fortunate that the Crown has moved for concurrent sentences.  We do not intend to vary it and therefore we impose concurrent sentences on those 4 counts.  We order the forfeiture and destruction of the drugs.

Authorities

Rimmer Lusk & Bade -v- A.G. [2001]JLR373.

A.G. -v- Welsh (3rd February, 2000) Jersey Unreported; [2000/21].

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp. 66-73; 161-166.

A.G. -v- Hasson [2003]JRC153.

R -v- Afzal & Arshad 13 Cr. App. R(S)145.