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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/243 - AG v Brian Whyte [1998] UR 243 (2 December 1998)
URL: http://www.bailii.org/je/cases/UR/1998/243.html
Cite as: [1998] UR 243

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ROYAL COURT

(Samedi Division)

 

2 December 1998

Before: F C Hamon, Esq., Deputy Bailiff, and Jurats

Myles, Le Ruez, Herbert, Potter, Quérée,

Le Brocq and Le Breton.

AG

-v-

Brian Whyte

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 6 November 1998, following a guilty plea to:

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

Count 1: diamorphine;

1 count of possession of a controlled drug, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

Count 2: diamorphine;

and following an admitted breach of a 1 year probation order, with 120 hours community service and a £370.20 compensation order in favour of HMs Customs and Excise, made in the Magistrates Court on 23 December 1997, following guilty pleas to:

1 count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Art6icle 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972:

Count 1: diamorphine;

1 count of obstructing Customs Officers in the performance of their duty, contrary to Article 5(a) of the Customs and Excise (General Provisions) (Jersey) Law, 1972;

1 count of causing malicious damage (count 3).

Age: 34

Details of Offence:

1 & 2 - 2.738 grams heroin (20-22% by weight) value of £821. Small but commercial quantity acquired from supplier. Already split into smaller wraps for dealing. 3(I) and (ii) - 551 milligrams heroin imported for personal use in balloon which was swallowed. Unco-operative when questioned by Customs Officers. 3(iii) - damage to detention centre whilst in custody (value £370.20).

Details of Mitigation: User/dealer. Small quantity. Guilty plea.

Conclusions:

Indictment: count 1: 4½ years imprisonment

count 2: 4½ years imprisonment, concurrent

Breach of probation: count 1: 3 months imprisonment

count 2: 1 month imprisonment

count 3: 2 weeks imprisonment, all concurrent, but consecutive to sentences imposed on indictment.

TOTAL: 4 years, 9 months imprisonment.

Sentence and Observations of the Court:

Conclusions granted. Quotes Campbell. User should know of evil effects. Magistrate should not have dealt with original importation but should have sent it to Royal Court. Critical of report by Bill Saunders: "unhelpful".

T J Le Cocq, Crown Advocate

Advocate C G P Lakeman for the accused

JUDGMENT

THE DEPUTY BAILIFF: The police executed a warrant at an address in Raleigh Avenue on Saturday 16 May 1998. Two packages of heroin were found; the first contained 2.05g; 20% by weight, which was originally in 10 individual wraps and the second 0.688g of heroin, 22% by weight, in 14 individual wraps. This total of 2.738g of Heroin was seized with a street value of some £821. The wraps were in 24 individual wraps; 14 of which were underweight which is indicative of a dealer attempting to maximise his profit.

Now, Whyte is clearly a heroin addict and he is in breach of a 1 year probation order imposed by the Magistrates Court on 23 December 1997. That order was made for importing a small amount of heroin into Jersey for personal use. He apparently concealed it in a balloon which he swallowed when confronted by Customs Officers. We must express surprise that the Magistrate felt able to deal with this serious matter at all. In our view it should have been sent to this Court and we hope that this message will be understood by the lower Court.

In Campbell and Others -v- the Attorney General (1995) JLR 136 and 145 the Court of Appeal set the guidelines for sentencing - drug trafficking offences; and said this:-

"We accordingly state that it is seldom that the starting point for any offence of trafficking in a Class A Drug on a commercial basis can be less than a term of 7 years."

It is because drug trafficking is peculiarly heinous and antisocial that drug traffickers in this Court will receive condign punishment. Mr Whyte says that he intended to sell only to known heroin users. The dealer who supplied him would have had no concern at all in that regard but Mr Whyte has stated that he is currently motivated to stop using drugs himself. The harm that he causes to others is clearly of little concern to him. He has pleaded guilty, it is true. Mr Lakeman has urged that we might take a starting point of 6 years as opposed to the 7 years suggested by the Crown Advocate and then apply what he acknowledges to be the proper allowances made by the Crown.

We have thought long and hard about this but the Court has before it a man who was given the most generous concession by the Magistrate as recently as December on the basis that he was going to reform. The Court regards any attempt to traffic as a matter which will cause great damage, and which is totally abhorrent to the society in which we live.

We must say, in passing, that we found the report by Mr Saunders to be singularly unhelpful. Mr Lakeman has said everything that he could but, after consideration, we are going to follow the conclusions of the Crown, and therefore you are sentenced on counts 1 and 2 of the main indictment to four and a half years imprisonment on each count concurrent; and with regard to the breach of probation order, we discharge that order and substitute the following sentences:

count 1:3 months imprisonment

count 1:1 month imprisonment

count 3:2 weeks imprisonment

Those will be concurrent with each other but consecutive with the sentences of imprisonment on the main indictment; and therefore you are sentenced in total to 4 years and 9 months imprisonment.

 

Authorities

Campbell, MacKenzie, Molloy -v- A.G. (1995) JLR 136 CofA

A.G. -v- Molloy (3 November 1994) Jersey Unreported

A.G. -v- Cain (9 September 1996) Jersey Unreported

Whelan: Aspects of Sentencing in the Superior Court of Jersey: Noter up: May ’96-’97: pp.1-2


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