Attorney General v Antunes, Saraiva and Viveiros

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Birt, Deputy Bailiff
• Judgment Date: 24 April 2003
• Date: 24 April 2003

ROYAL COURT

Birt, Deputy Bailiff

J. Bell for the first defendant;

D. Cadin for the second defendant;

M. St.J. O'Connell, Crown Advocate, for the Attorney General;

The third defendant did not appear and was not represented.

Cases cited:

(1) Campbell (A.T.) v. Att. Gen., 1995 JLR 136, distinguished.

(2) Clarkin v. Att. Gen., 1991 JLR 213, distinguished.

(3) Fogg v. Att. Gen., 1991 JLR 31, distinguished.

(4) Kerr v. H.M. Advocate (1986, A), 1986 S.C.C.R. 81, followed.

(5) McDonough v. Att. Gen., 1994 JLR N-7, applied.

(6) R. v. Hughes (1985), 81 Cr. App. R. 344, not followed.

(7) Rimmer v. Att. Gen., 2001 JLR 373, distinguished.

Legislation construed:

Misuse of Drugs (Jersey) Law 1978, art. 5: The relevant terms of this article are set out at para. 19.

Criminal Lawdrugsbeing concerned in supplying drugssentenceguidelines for supply or possession with intent to supply inapplicable as Misuse of Drugs (Jersey) Law 1978, art. 5(c) covers conduct of widely varying seriousnesssentence generally lower but may exceed that of actual supplier if accused's involvement greater

Criminal Lawdrugsbeing concerned in supplying drugsnature of offencecompleted supply of drug unnecessary as accused under art. 5(c) concerned "in supplying of" controlled drug, not "in supply of"specific identified supply unnecessary if accused's acts sufficient proximate to dealer's general supplying, e.g. organizing equipment used to prepare drugs for sale

The first and second defendants were charged with being concerned in the supplying of a controlled drug contrary to the Misuse of Drugs (Jersey) Law 1978, art. 5(c). The third defendant was charged with possession of heroin with intent to supply.

The third defendant, a drug-dealer, stored equipment at the second defendant's flat which he used to bag up heroin for sale. The first defendant agreed to drive the third defendant to collect heroin which was to be bagged up and sold. They collected the second defendant and the necessary equipment from her flat. Only the third defendant knew how much heroin there was and how much was to be bagged. When he went to retrieve the heroin, the first defendant informed the second defendant that he had been promised heroin in return for the use of his car. The police then arrested the first and second defendants. The third defendant was arrested on his return. He had 142.76g. of heroin concealed on his person. The defendants pleaded guilty to the counts against them.

The Attorney General submitted that (a) the court was to sentence all three defendants in accordance with the principles laid down in Rimmer v. Att. Gen., i.e. on the basis of the amount of heroin involved; and (b) as 142g. of heroin fell within the 100-250g. band set out in Rimmer, a starting point of 11 years' imprisonment was appropriate for each defendant.

The first and second defendants submitted in reply that (a) in McDonough v. Att. Gen., the Court of Appeal expressly stated that sentencing guidelines for offences of possession with intent to supply had no application to cases under art. 5(c) because it applied to varying levels of culpability; and (b) in any event, an 11-year starting point was manifestly excessive.

The second defendant further submitted that (a) the prosecution had to prove her participation in a specific, envisaged (but not necessarily completed) supply of a controlled drug and her knowledge of the nature of the enterprise; and (b) as she knew only that the first defendant was to receive heroin in exchange for the use of his car, she should be sentenced on that basis, notwithstanding that, at the time of her participation in the relevant acts, she had envisaged the first defendant bagging up an unknown and indefinite amount of heroin for sale.

Held, rejecting the Attorney General's submission:

(1) The Court of Appeal's decision in McDonough that the guidelines for offences of supply or possession with intent to supply did not apply to an art. 5(c) offence had not been expressly or impliedly overruled in Rimmer, and it therefore remained the authoritative guideline case for offences of being concerned in the supply of controlled drugs. Although a sentence similar to that appropriate for actual supply was justified when the accused's involvement matched or exceeded that of the actual supplier, the application of the Rimmer guidelines would result in excessive sentences when the accused's involvement was of a more peripheral nature, e.g. in this case, the consequence of applying the Rimmer guidelines to the quantity of drugs involved was identical starting points, proposed by the Crown, of 11 years' imprisonment for each defendant, despite their different levels of culpability. Even the lowest available starting point for the quantity of drugs involved, i.e. 10 years, would have been excessive ( paras. 14-18).

(2) It was not a necessary element of the offence of being concerned in the supplying of a controlled drug that

(a) the supply was completed, as the offence created by the Misuse of Drugs (Jersey) Law 1978, art. 5(c) was being concerned "in the supplying of" a controlled drug to another, and not being concerned "in the supply of" a controlled drug to another. Moreover, it would deprive the provision of practical effect if no offence was committed when, e.g. the supply was interrupted by the police;

(b) a specific supply was identified, if the accused could be linked generally with drug-dealing; it was sufficient if, with the requisite knowledge and by means of sufficiently proximate acts, the accused was concerned in the general supplying of the dealer. The court was therefore not obliged, as a matter of law, to sentence the second defendant on the basis that she was concerned only in the supply of a small amount to the first defendant. By collecting together the drug preparation equipment, she had aided the third defendant's drug-dealing in a way sufficiently proximate to the supplying to amount to being "concerned" in it. The court would, however, consider her state of mind, i.e. whether she knew the quantity of drugs involved, when sentencing ( paras. 24-27).

1 BIRT, DEPUTY BAILIFF: I have been asked to rule on certain points of law in connection with the proposed sentencing of the first two defendants. Viveiros has taken no part in this hearing as the issues raised do not concern him.

2 In order to appreciate the legal points, it is necessary to outline the circumstances of the offences. However, it is only the sentencing court, comprising the Jurats, which may make definitive findings of fact. Accordingly, any view which I express as to the facts must be regarded as provisional; any final determination of the facts rests entirely with the Jurats.

The factual background

3 At about 1.10 p.m. on October 8th, 2002, police officers approached a Ford Fiesta car (which belonged to Antunes) in a car park on Noirmont Common. Antunes was in the driving seat and Saraiva in the back. Shortly afterwards, the police arrested Viveiros who was walking down a track about 100 yards from the car. He was found to be in possession of 142.76g. of heroin in a black plastic package bound with tape. It was hidden in his boxer shorts.

4 From interview with Saraiva the following facts emerged. Viveiros had lived with her at her flat for about a month before the day in question. He was a regular dealer in drugs and she was aware of this. Indeed, he used some scales, a roll of bags and a piece of glass, which were stored at the flat, to cut up heroin and put it in individual bags for sale (known as "bagging up"). She had caught a glimpse some time earlier of the package in question and suspected that it contained heroin, although she did not know the amount. She and Antunes had accompanied Viveiros in...