Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession with intent to supply - possession - Class A.

[2013]JRC093

Royal Court

(Samedi)

16 May 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu, Kerley, Marett-Crosby, Nicolle and Milner.

The Attorney General

-v-

Brendan Alexander Lynch

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 12^th April, 2013, following guilty pleas to the following charges:

2 counts of:	Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1 and 3).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 4).

Age:  32.

Plea: Guilty.

Details of Offence:

Lynch was in town with another male and was seen to be holding a suspicious package further to which he was arrested.  At the police station a search was authorised, Lynch indicated there was "something" in the waistband of his trousers - it was a package containing two "street" ounces (54.71g) of cocaine.  A search of his flat uncovered 21.64g of cocaine; the Crown proceeded on the basis this quantity represented twenty-two "street" gram deals and accepted that twelve were intended for his personal use, the remaining ten being available for supply to "a small circle of like-minded friends".  Cash was found in the flat - nearly £1,500 in a wallet in the living room area, £2,000 around the kitchen and a little less around the bedroom, a total of £5,249 mainly in £20 notes.  Digital scales with traces of cocaine and MDMA were found under his mattress.  The drugs seized on the street had a purity of between 6-7%, those at the home address 4%.  Through reports and at sentencing, Lynch indicated he had "cut" some of the drugs.  A drugs "benefit" figure of £5,280 was calculated on the basis of sixty-six "street" grams at £80 per deal. 

Details of Mitigation:

Guilty pleas; psychological report identified medical issue which may have contributed to Lynch choosing to "self-medicate".  Letter of remorse; good references and many supportive letters from parents of disadvantaged and challenging offspring who spoke highly of his care and commitment.  Defence argued that the Crown's starting point was too high and that his role was towards the lower end of the scale for this type of dealing activity.  Claimed "social supply" to fund own habit rather than a venture for profit.  Previous local offending only minor.  Defence stated he had been working in the Island for 9 years. 

Previous Convictions:

Lynch had been convicted in Dublin in 2003 of eleven offences committed more than 2 years earlier, those offences including possession of ecstasy, for which he was ordered to undertake 150 hours of community service.  Only local convictions were motoring-related but had received a written caution at Elizabeth Harbour Terminal in 2009 for possession of amphetamine. 

Conclusions:

Count 1:	Starting point 10 years' imprisonment. 6 years' imprisonment.
Count 3:	Starting point 10 years' imprisonment.  6 years' imprisonment, concurrent.
Count 4:	12 months' imprisonment, concurrent.

Total: 6 years' imprisonment.

Forfeiture and destruction of the drugs and paraphernalia sought.

Recommendation for deportation sought.

Confiscation Order sought in the sum of £5,249.

Sentence and Observations of Court:

Conclusions granted.

Recommendation for deportation made; notwithstanding Lynch's good work record the Court was of the opinion that his continued presence in the Island would be detrimental, the rights of any other not surpassing that detriment.

Miss E. L. Hollywood, Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for two counts of possession of cocaine with intent to supply and one count of possession of cocaine.  You have no material convictions in Jersey which we should consider but it appears there is a previous conviction in Ireland for the unlawful possession of drugs, the full details of which are not known to us.  The cocaine, which is the subject of the intent to supply charges, amounted to some 64.8 grams, with a street value in excess of £5,000.  The cocaine subject to the personal possession charge is some 10 grams in weight. 

2.        The Royal Court's approach to drug trafficking cases is well settled.  There is an immediate custodial sentence for a trafficking offence which involves this quantity of drugs and we apply the case of Rimmer-v-AG [2001] JLR 373 which has been presented to us by the Crown and which your counsel has accepted is applicable. 

3.        We therefore are looking for the appropriate starting point which we fix having regard to your involvement in drug trafficking.  The Court has taken some time to consider the right starting point, we think that the Crown's starting point of 10 years' imprisonment is correct.  The reasons for taking that starting point are first of all the quantity, which is on the cusp within that bracket of 9 or 10.  Secondly, that we have taken an account of the fact that the scales, which were in your possession, had not only traces of cocaine but also traces of MDMA, and thirdly, the evidence of cash which was in your accommodation, which all point to regular drug dealing and a higher level of drug trafficking.  And for that reason we have taken the starting point of 10 years. 

4.        From there we have come to consider the personal mitigation.  We give you a full discount for your guilty plea.  We have taken account of the good work record that you have, especially with the disadvantaged, and we have taken account of everything which is in the references and in the remorse which you have expressed.  And of course, we have had regard to the social enquiry report, your medical condition and your own addiction. 

5.        Now your counsel has urged on us that we can have regard to the nature of social supply and it is right that I indicate again what was said by the Court in the case of AG-v-McKenzie and Richards [2011] JLR 689:-

"48.   The gravamen of the offence is that drugs have been or are intended to be supplied to others, risking damage to their health and the structure of their lives.  That they are willing participators in accepting that risk is neither here nor there as far as the offence is concerned.  The drug trafficker who deals commercially preys on their vulnerability for monetary gain.  The drug trafficker who supplies at cost with the hope of a reciprocal favour at some future date, or simply as a gift, similarly preys on their vulnerability albeit for a different purpose - not for money but for other benefits he perceives for himself.  As far as the gravamen of the offence is concerned, there is no difference. 

...

50. Nonetheless, of course there is a difference between the supply of the drugs for profit and the supply of drugs as a "social supply".  The extent of that difference will be a matter for the sentencing court to appreciate in considering the mitigation which has been advanced.  If the social supply amounts to recovering the cost of the drugs so that the supplier in effect has his drugs for nothing or at a discounted price, it may be that the mitigation will not carry much weight." 

6.        So we have considered the question at some length as to this issue of social supply but the evidence before us suggests that the supply is to enable you to fund your own drug habit.  For that reason we have not made any significant allowance in terms of mitigation for the fact that you were engaged in relation to Count 3 as a "social supply" and in any event that does not appear to have been the case with Count 1.  Having regard to all those factors the Court thinks the Crown's conclusions were correct.

7.        You are therefore sentenced on Count 1; 6 years' imprisonment, on Count 3; 6 years' imprisonment and on Count 4; 12 months' imprisonment.  They all run concurrently, making a total of 6 years' imprisonment. 

8.        We now come to the question of deportation and the case which is the leading case for us to apply in this jurisdiction is that of Camacho-v-AG [2007] JLR 462.  There is a two-part test.  First of all we have to decide whether or not your continued presence in the Island is detrimental.  There is an important message of deterrence in connection with offences of this kind.  Those who are contemplating committing them should appreciate they are abusing the privilege that living in this Island involves and the Court has got no doubt at all that the first part of the test in Camacho is passed.  The fact that you have a good work record has been taken into account but the Court's view is that this threshold will nearly always be passed with drug trafficking offences involving Class A drugs in this kind of quantity.  We have then gone on to consider the second part of the Camacho test which is the Convention Rights of others and the only person whose rights have been raised with us here is your Polish partner, who we understand to have been in the Island for some 6 years, and in a letter of reference to the Court she has indicated she would leave the Island if necessary to support you, although it will cause her some difficulties if she does.  We have given very careful consideration to this but we do not think that these interests outweigh the detriment which we have established in the first part of the Camacho test, and indeed, in the case of Camacho we have noted that there, the defendant had been living in the Island for 12 years and he had a partner and a 2 year old son and nonetheless, the recommendation for deportation was upheld in the Court of Appeal. 

9.        So having regard to all these circumstances we add that we are going to make a recommendation for deportation, in this case, at the conclusion of your sentence. 

10.      We also order the forfeiture and destruction of the drugs and the paraphernalia. 

Authorities

Rimmer-v-AG [2001] JLR 373.

AG-v-McKenzie and Richards [2011] JLR 689.

Camacho-v-AG [2007] JLR 462.

AG-v-McKibbin & Ors [2009] JRC 005.

European Convention of Human Rights.