AG v Teixeira 12-Nov-2020 [2020] JRC 239 (12 November 2020)

JUDGMENT THE COMMISSIONER: 1. The defendant, who is on remand in custody, applies for the Newton hearing fixed for 14 th January, 2021, to be vacated and for the matter to proceed to his sentencing and this on the grounds that the facts in dispute between the Crown and the defendant are no longer material to sentence.

2. There are four counts on the Indictment, and we are concerned with Count 1, in which the defendant is charged with possession of cocaine, a Class A drug, with intent to supply to another. We are not concerned with the remaining three counts which are possession offences.

3. The facts briefly are that in the early hours of 15 th December, 2019, the police were informed by a member of the public that the defendant had been seen " snorting a line of coke off the counter" at a nearby takeaway shop. The defendant was detained and following a search, he was found to be in possession of 6 zip-lock bags containing white powder, later confirmed to be cocaine, with a total weight of 4.93 grams and a weight per bag of approximately 82 milligrams.

4. When pleading guilty to Count 1, the defendant filed a basis of plea signed by him on 6 th August, 2020, in which he said this: "The Defendant purchased the cocaine on the evening of the 14 December 2019. He was subsequently arrested and found to be in possession of 6 zip-lock plastic bags, each containing on average 0.82 mg of cocaine. The cocaine was to be used by the Defendant and shared with friends," 5. On 14 th August 2020, the Crown asked for clarification of the following points: (i) when the defendant referred to " shared with friends " did he mean that he would sell the cocaine to friends? and (ii) if so, was he intending the sell the cocaine at Jersey street prices?

6. The defendant responded by signing and filing a second basis of plea dated 20 th August 2020, in which had been amended as follows: "The Defendant purchased the cocaine on the evening of the 14 December 2019. He was subsequently arrested and found to be in possession of 6 zip-lock bags, each containing an average 0.82 mg of cocaine. Around 2/3rd of the cocaine was to be sold by the Defendant to friends at the Jersey street price. Around 1/3rd was for the Defendant's own use." 7. Advocate Haines, for the defendant, took the view that with this amended basis of plea there was no material difference between the Crown and defendant for the purpose of sentencing, and asked for the matter to be brought back before the Court to fix a sentencing date. Not having a substantive response from the Crown, Advocate Haines has brought the matter back before the Court.

8. The Crown does not accept the revised basis of plea. Following the arrest of the defendant his home was searched and various drug paraphernalia found, including two similar zip-lock bags which contained white powder residue and one bag of creatine powder; the cocaine found on the defendant had been mixed with creatine. The issue in dispute is put this way by the Crown in the Crown's revised case summary: "The issue in dispute is whether the Defendant purchased the six wraps of cocaine from persons unknown during the course of the evening, or went out having prepared the wraps himself. The Crown view is that this would make a material difference to sentence, as the nature of the supply (on the Defendant's account) is that it was unplanned and the result of him bumping into a 'friend of a friend". The difference is essentially whether he left his property fully intending to sell drugs, or acquired these drugs during the course of the night." 9. The guideline case for sentencing is Rimmer v AG [2001] 148. This weight of drugs comes within the first band of 1 - 20 grams, which attracts a starting point of between 7 and 9 years. The issue is whether the difference between the Crown and the defendant is material to sentence, as per Article 78(2)(b) of the Criminal Procedure (Jersey) Law 2018 .

10. Crown Advocate Pedley submitted that on the Crown's version of the facts, the starting point would be 7½ years, whereas on the defendant's version of the facts, it would be 7 years. Whilst the weight of drugs is the same in both versions, if the Crown version is correct he said it shows a greater role or involvement of the defendant in drug trafficking. He also submitted that this greater role would affect mitigation available to the defendant, a point I doubt as Rimmer is clear that the role and involvement of a Defendant is taken into account in arriving at the starting point, which is then adjusted to take into account mitigation.

11. Advocate Haines submitted that in substance, there is no real difference between the two versions. The defendant, who the Crown accept is a drug user, has pleaded guilty to possession of this cocaine with intent to supply others. He will say that he went out that night at about 5.00pm with cash, in order to buy cocaine for onward supply. What is the difference, Advocate Haines asked, between that and the defendant going out with cocaine that he had previously acquired?

12. I am persuaded by Advocate Haines' submissions. The defendant had either acquired this cocaine before he went out or after he went out, but in both cases, it was acquired with the intention of supplying it to others at Jersey street prices. The only difference on the defence version is that he said approximately one third of the cocaine found in his possession was for his personal use. This constitutes extraneous mitigation outside the knowledge of the Crown which may lessen the sentence.

13. I am not persuaded that there is any real difference in terms of the defendant's role and involvement in drug trafficking in having acquired this cocaine for the admitted purpose of onward supply, either before or after he went out that night.

14. The case is at the lower end of the sentencing band of 7 - 9 years and in my view, the differences between the Crown and the defendant are not sufficiently material to the sentence that will be imposed upon the defendant to justify a Newton hearing.

15. It follows that: (i) the Newton hearing on 14 th January 2021 should be vacated, and (ii) the defendant should be brought back before the Court at the first opportunity so that a sentencing date can be fixed at which he will be sentenced on his basis of plea. Authorities Rimmer v AG 2001/148. Criminal Procedure (Jersey) Law 2018 Page Last Updated: 08 Feb 2021 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII