AG v Carroll 08-Dec-2020 [2020] JRC 254 (08 December 2020)

JUDGMENT THE COMMISSIONER: 1. The defendant stands to be sentenced for one count of possession of MDMA, or ecstasy as it is known, a Class A drug which when overdosed can lead to death, with intent to supply. He is also to be sentenced to three lesser counts of possession of cannabis and ecstasy.

2. On 8 th June, 2019, the police executed a drugs warrant in relation to the defendant's address and in the defendant's bedroom they found a zipped lunch bag in a dirty laundry basket which was found to contain 35.31 grams of MDMA or ecstasy, £1,126 cash mainly in £20 notes and around 100 small resealable deal bags. Other smaller quantities of drugs were also found in his bedroom. The MDMA found had a street value of between £2,800 and £3,500.

3. The defendant pleaded guilty on indictment on the following basis namely that he would have sold half the MDMA to a circle of friends and the rest was for his personal use. He said he would consume 3 to 4 grams each weekend. He said he had obtained the MDMA or ecstasy " on-tick " and so had not paid for it yet. The cash he said found in the bag was saved from his wages which he intended to put towards the purchase of the MDMA. He would have sold to his friends at cost making no profit for himself nor covering his own purchase. That basis of plea was not accepted by the Crown, but at a hearing last week the Court declined to order a Newton Hearing on the basis that under the guidelines in Rimmer v AG [2001] JLR 373 which overlap, the starting point was likely to be similar and the defendant is therefore to be sentenced on his basis of plea as to the quantity of the MDMA he intended to supply namely 17½ grams. The defendant has pleaded guilty under a new Count 4 to straightforward possession of the remaining 17½ grams.

4. The Rimmer guidelines indicate a starting point of 7 to 9 years for 1 to 20 grams of MDMA powder; 17.5 grams is at the higher end of this weight bracket and taking into account the Crown's assessment of the defendant's role and involvement, the Crown move for a starting point of 9 years. The Crown found it implausible that the £1,126 was savings from his wages bearing in mind his known financial position and is much more likely, it felt, to be the proceeds of sales already made, the defendant having admitted to being a supplier to his friends for some time.

5. The defendant has a number of previous convictions, mostly for public order offences, but none for drugs and his last conviction was in 2014 when he would have been about 20. He was assessed at a moderate risk of reconviction. Taking into account the mitigation, including the delay from 8 th June, 2019, when he was arrested, to 12 th May, 2020, when he was first charged the Crown seek a sentence of 5 years and 6 months' imprisonment.

6. In terms of the starting point, in our view having looked at the Rimmer guidelines and made our own assessment of the defendant's role and involvement we accept Advocate Bell's submission that the appropriate starting point here is one of 8 years.

7. In terms of mitigation the defendant has, as we have said pleaded guilty, but at the heart of the illegal drug trafficking industry lies drug misuse which blights the lives of so many, often young lives. It must in our view be in the interests of society that those who develop a sustained and heavy habit of drug misuse are encouraged to free themselves from that habit and are rewarded when they do so. In this case we have a young man of 26 who, as confirmed in the Social Enquiry Report, has transformed his life in the long period of delay between the ecstasy being found and his being charged, in that:- (i) He has moved back to live with his father; (ii) He has become a reliable student and worker passing his exams and fully qualifying as an electrician. He has worked in a voluntary capacity in the construction of the Nightingale Hospital, putting in 170 hours over a two week period. (iii) As well as moving back with his father he has removed himself from the like-minded circle of friends and social situations in which he used to supply. (iv) He made a decision in June, 2019 to stop using illegal drugs completely and is supported in this by his parents and his girlfriend and friends who do not use drugs. He also took steps to reduce his alcohol intake before he was put into custody. (v) He has the support of his family, many of whom are in Court, and we have received very impressive references, one in particular from his last employer. (vi) In prison the defendant has engaged with the substance misuse therapist who has confirmed that he has demonstrated an ability to reflect on his problematical behaviour and to take steps to address it and has shown a good understanding of risky situation which may occur when intoxicated.

8. All of these factors combined with the long delay (for which there was no adequate explanation), the fact that the defendant has already served the equivalent of 6 months' imprisonment and the fact that work is immediately available to him allows us to make a very substantial reduction in the sentence applicable in this case to one of around 3 years 2 months. That in turn allows us to consider the alternative to imprisonment of Community Service and for all the reasons which we have just set out we are going to take the exceptional step of imposing Community Service for what is a serious offence.

9. On Count 1 you are sentenced to 480 hours of Community Service, which is the equivalent of 3 years and 2 months imprisonment. On Count 2 you are sentenced to 50 hours' Community Service which is the equivalent of 1 month's imprisonment, concurrent. On Count 3 there is no separate penalty. On Count 4 you are sentenced to 312 hours' Community Service which is the equivalent of 2 years' imprisonment, concurrent. That makes a total sentence of 480 hours' Community Service or 3 years' 2 months imprisonment, and you will have to do that Community Service over a period of 2 years. We also make a Probation Order for one year.

10. We were very impressed by your letter Mr Carroll and you said this in your last paragraph:- "This was my first and will be my last drug conviction. I fully understand the seriousness of my charges and I'm aware that a prison sentence is likely but I just wanted to reassure you that there is absolutely no chance of me ever reoffending" We trust that that is the case.

11. We find that the defendant has benefitted from drug trafficking in the amount of £4,140 and we make a Confiscation Order in the sum of £1,126.

12. We order the forfeiture and destruction of the drugs. Postscript 13. By way of explanation of paragraph 8 of the judgment, the Court approached the matter in this way, firstly it deducted one third from the starting point of 8 years for the defendant's guilty plea bringing the sentence down to 5 years and 4 months. From that the Court then deducted just over 2 years for the delay and the general mitigation as outlined above, arriving at a sentence of approximately 3 years and 2 months, which in turn brought the possibility of Community Service into play. Authorities Rimmer v AG [2001] JLR 373 . AG v MacKenzie and Richards [2011] JRC 173A Page Last Updated: 04 Jan 2021 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII