Jersey Unreported Judgments

[2011]JRC108

ROYAL COURT

(Samedi Division)

1^st June 2011

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Le Cornu, Morgan, Fisher, Nicolle, Crill and Le Brocq.

The Attorney General

-v-

Ashley Anaise Hamon

Lee Michael Boustouler

Sentencing by the Superior Number of the Royal Court to which the accused were remanded by the Inferior Number on 15^th April, 2011, following guilty pleas to the following charges:

Ashley Anaise Hamon

First Indictment

1 count of:	Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 4).
1 count of:	Obstructing a police officer in the execution of his duty, contrary to Article 19(7)(a) of the Misuse of Drugs (Jersey) Law 1978 (Count 5).

Second Indictment

1 count of:

Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).

Age:  35.

Plea: Guilty.

Details of Offence:

First Indictment: Count 1:

During June 2010 Boustouler entered a shop and removed food to the value of £8.15 leaving the store without paying.

Initial offending involving Hamon and Boustouler

During February 2010 police officers executed a warrant at the defendants' home.  Hamon put controlled drugs in her mouth and despite being told to spit it out refused to cooperate (Count 5).  Eventually Hamon spat out a chewed up plastic wrap containing remnants of brown powder later analysed as heroin, the remnants of which weighed 367 milligrams and contained 34 per cent by weight of diamorphine with a total street value of £350.  The police expert concluded the original piece of plastic was of a sufficient size to contain 1 gram of heroin. 

Items seized from the address included cut plastic bags consistent with the preparation of wraps for the supply of controlled drugs, weighing scales and five mobile telephones, all which suggested that there had been drug related activity at the address.  Examination of the mobile phones seized showed the defendants were sourcing drugs for their own personal use and jointly concerned in the onward supply of drugs during January and February 2010, (Counts 2 and 4). 

Breach of Probation Order

Boustouler, having pleaded guilty to the offence of larceny in June 2011, was in breach of a Royal Court Probation Order imposed in April 2010.  The breached offences comprised:-

1.     Obstruction of a police officer;

2.     Possession of Oxcoydone;

3.     Possession of a small amount of cannabis; and

4.     Larceny of a charity box.

Second Indictment

After her initial arrest Hamon continued to source drugs from Pereira which she sold without Boustouler's help.  During the three days preceding their arrest on 3^rd August, various text messages were sent by Hamon to Pereira which contained requests to be supplied with a wholesale amount of controlled drugs. 

Pereira was arrested at his home address with Hamon who he drove there in his car.  During a search of their persons, Pereira was found in possession of a small black bag containing 2.7 grams of heroin with a street value of £2,600 and wholesale value of between £500 and £700.  Hamon was in possession of £160 cash, a syringe and a spoon.  A search of Pereira's flat revealed a safe containing over £4,000 cash and a large silver coloured combat knife.  A subsequent search of Hamon's address revealed drug paraphernalia. 

Both Hamon and Pereira entered not guilty pleas and a trial was set for March 2011.  Hamon subsequently pleaded guilty however the trial dates were changed to April then may due to Pereira dismissing his Advocate and his counsel need time to prepare.  During April Pereira failed to return from an authorised trip out of the jurisdiction and failed to appear for his trial.  His arrest was ordered and he remains at large. 

Details of Mitigation:

Hamon entered guilty pleas, forthcoming after Boustouler gave a prosecution statement and confirmed he would evidence at her trial.  No previous drug convictions.  Hamon had not offended since 2008.  Vulnerability of Hamon due to earlier childhood events which resulted in her being prescribed valium which was the start of her addiction. 

Previous Convictions:

14 previous convictions comprising 60 offences majority of which are offences of dishonesty.  No previous drug related convictions. 

Conclusions:

First Indictment

Count 2:	5 years' imprisonment.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	3 months' imprisonment, concurrent.

Second Indictment

Count 1:

5 years' imprisonment, concurrent to the First Indictment.

Total:  5 years' imprisonment. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Conclusions granted. 

Lee Michael Boustouler

First Indictment

1 count of:	Larceny (Count 1).
1 count of:	Being concerned in the supply of a controlled drug contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  34.

Plea: Guilty.

Details of Offence:

See Hamon above. 

Details of Mitigation:

Was cooperative from an early stage and entered a guilty plea.  Had suffered delay; had been remanded on bail with strict conditions for over a year pending the trial of his co-accused.  Reports showed that Boustouler had made progress in staying away from heroin and turning his life around and was applying for various jobs with an offer of temporary work. 

Boustouler was exceptionally entitled to mitigation arising from his cooperation in providing a statement to the police and being willing to give that evidence at trial which was instrumental in securing the guilty pleas ultimately entered by Hamon. 

Previous Convictions:

9 previous convictions comprising 27 offences, 13 of which are for drug offences between 2000 and 2010.  Most were possession offences with 1 conviction for possession of heroin with intent to supply in 2007 which received 2 years' imprisonment. 

Conclusions:

First Indictment

Count 1:	18 months' Probation Order plus a 6 month Treatment Order.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' imprisonment.

Breach of Probation Order dated 16^th April, 2010: 18 months' Probation Order, concurrent with Count 1. 

Total:  240 hours' Community Service Order plus an 18 month Probation Order together with a 6 month Treatment Order. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

First Indictment

Count 1:	18 months' Probation Order plus a 12 month Treatment Order.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' imprisonment.

Breach of Probation Order dated 16^th April, 2010: 18 months' Probation Order, concurrent. 

Total:  240 hours' Community Service Order plus an 18 month Probation Order together with a 12 month Treatment Order. 

Forfeiture and destruction of drugs ordered. 

Ms E. L. Hollywood, Crown Advocate.

Advocate S. A. Pearmain for Hamon.

Advocate J. W. R.  Bell for Boustouler.

JUDGMENT

THE commissioner:

1.        The Court is concerned with two sets of offences involving the supply of heroin.  Taking the first set of offences these relate to a period between January and February 2010 when the defendants were living together, sourcing and distributing heroin to fund their own habit.  On 10^th February, 2010, the police searched their home.  Hamon, on seeing the police officers, put something in her mouth.  Eventually she spat out a chewed up plastic wrap found to contain 367 milligrams of heroin, enough to make up seven deal bags, with a maximum street value of £350.  The plastic wrap was of a sufficient size to contain one gram of heroin and it was clear to the police that she had consumed some of the contents.  A number of articles used in drug related activity were seized.  Analysis of the five mobile phones show the defendants not only sourcing drugs for their personal use, but their involvement in its onward supply.  Under this First Indictment the defendant Boustouler is also to be sentenced for the larceny of food valued at £8.15 from Marks and Spencer. 

2.        Following her arrest, the defendant Hamon continued to source heroin without Boustouler's help from the defendant Pereira with whom she stands indicted under the Second Indictment.  Pereira absconded from the Island in April 2011 whilst on bail and a warrant has been issued for his arrest.  On 3^rd August, 2010, she was arrested in a car with Pereira outside his premises and he was found to be in possession of a small bag contained 2.7 grams of heroin, sufficient to make fifty-two bag deals with a maximum street value of £2,600.  Analysis of text messages make it clear that Pereira was in the course of supplying this heroin to Hamon. 

3.        Hamon was not cooperative with the police and pleaded not guilty to the substantive charges against her.  On 23^rd December, 2010, Boustouler, who had pleaded guilty to the substantive charges against him under the First Indictment, provided the Prosecution with a statement confirming Hamon's involvement and his willingness to give evidence against her at trial.  As a consequence of this, on 21^st January, 2011, Hamon changed her pleas to guilty in relation to the First indictment, and on 11^th February, guilty to the Second Indictment. 

4.        Hamon has fourteen previous convictions comprising sixty offences, the majority being offences of dishonesty committed to fund her drug addiction, but no previous drug related convictions.  Boustouler has nine previous convictions comprising twenty-seven offences, thirteen of which are for drug offences. 

5.        In her social enquiry report Hamon minimises her involvement in these offences, although she has, by letter given to us today, now accepted full responsibility.  She is assessed at a high risk of re-offending and has not consented to community service.  As a consequence the probation department are unable to make any firm recommendation.  In his social enquiry report the probation department tell us that there has been a "sea-change" in Boustouler's behaviour over the last year in which he has engaged consistently with the staff at the Alcohol and Drugs Service and the Probation Service to coherently address his drug misuse.  Mindful of the seriousness of the offence of supplying heroin, they respectfully urge the Court to depart from its normal sentencing policy and allow him to continue on his current path of recovery and change and to continue to make progress away from his previous life which was unproductive, self destructive and almost wholly driven by his drug dependence.  The Crown feel able to endorse that recommendation. 

6.        The Rimmer guidelines establish a starting point of between 7 and 9 years for trafficking offences of between 1 and 20 grams of heroin and the Crown submit that 8 years is the appropriate starting point in this case for both defendants. 

7.        For Hamon, applying consecutive sentences to the two sets of offences would have resulted in too high a sentence and the Crown therefore moves for slightly higher concurrent sentences to take into account the offending as a whole.  Thus it moves for a sentence of 5 years' imprisonment in total. 

8.        In terms of mitigation, dealing firstly with Hamon, she has pleaded guilty but that was only forthcoming, in our view, after Boustouler had confirmed he was prepared to give evidence against her.  We have considered very carefully the mitigation put forward by Advocate Pearmain on her behalf; the letters both from her and from her family and we note the presence of the family in Court and their support.  We have also taken into account the circumstances of her background and how she came to be addicted to drugs.  We note the very positive steps she has taken in prison to be drug free and engage positively in her work and activities there and we commend her for this. 

9.        Turning to Boustouler, he of course has pleaded guilty, has been cooperative from the outset and we have also listened at all of the mitigation put forward on his behalf by Mr Bell.  There have been lengthy delays in sentencing through no fault of his, during which he has, however, made the very positive progress outlined earlier by the probation department.  He has also exceptionally confirmed his willingness to give evidence against Hamon and was instrumental in bringing about her guilty pleas.  Drug trafficking relies on fear and intimidation and it has long been the policy of the Court to reward those who are prepared to assist in this way. 

10.      We intend to follow the conclusions recommended by the Crown in respect of both defendants with small amendments.  We do not think there is any discrepancy in the treatment of the two offenders.  It is the policy of the Court, as we said, to reward exceptional cooperation of the kind given by Boustouler and in doing so his sentence will obviously be demonstrably lower than hers.  Furthermore Hamon, having been arrested on first set of offences, then went on to deal in heroin; this is an aggravating factor which, in our view, justifies the sentence against her. 

11.      Taking Hamon first, under the First Indictment; Count 2 you are sentenced to 5 years' imprisonment, Count 4; 18 months' imprisonment, concurrent and Count 5; 3 months' imprisonment, concurrent.  Under the Second Indictment Count 1 you are sentenced to 5 years' imprisonment, concurrent, which is a total of 5 years. 

12.      Mr Boustouler, on Count 1 you are sentenced to 18 months' probation and a 12 month Treatment Order, on Count 2; 240 hours' community service, which is the equivalent of 18 months' imprisonment and an 18 month Probation Order for the breach of the probation which is to be served concurrently.  In terms of the Probation Order, in addition to the normal conditions that are imposed on anybody undertaking probation, you will firstly abstain from all illegal and non-prescribed opiates which will be confirmed by random and routine drugs tests and this for the full duration of the 18 month Probation Order; secondly, you will attend weekly appointments with the probation officer and the drugs and alcohol counsellor for the first 3 months; thirdly, you will attend the "Offending is not the only choice" programme; fourthly, you will comply with the treatment goals agreed with the Alcohol and Drug Service; and fifthly, you will attend any other courses and programmes which may be determined by the probation officer. 

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

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Rimmer, Lusk & Bade-v-AG [2001] JLR 373.

AG-v-La Pavoux & Baumgartner [2003] JRC 075.

AG-v-Durkin & Ors [2004] JRC 163.

AG-v-Hume & Ors [2006] JRC 076.

AG-v-Dos Santos & Ferro [2011] JRC 020.