The Attorney General v Shaun Dylwin Price

JurisdictionJersey
CourtRoyal Court
JudgeBirt,Dulake,Sir Michael Birt,Jurats Ramsden
Date24 October 2019

[2019] JRC 211

ROYAL COURT

(Poursuite Criminelle)

Before:

Sir Michael Birt, Esq., Commissioner, and Jurats Ramsden and Dulake.

The Attorney General
and
Shaun Dylwin Price

Advocate M. J. Haines for the Appellant

Advocate C. R. Baglin for the Crown

Authorities

Campbell and Others v Attorney General [1995] JLR 136.

R v Newton [1982] 77 Cr. App. R 13

Archbold 2019 edition.

Blackstone's Criminal Practice 2019.

Magistrate's Court Appeal against sentence.

THE COMMISSIONER:
1

This is an appeal against a sentence of 8 months' imprisonment imposed on the Appellant by the Relief Magistrate, Advocate David Le Cornu on 27 th September, 2019 on one charge of possession of cannabis with intent to supply.

2

The factual background to the offence was as follows:

3

A search warrant was executed by police officers at the Appellant's home address at 7:15am on 4 th April, 2019. There, the police found three bars of cannabis together with four wraps of cannabis in silver foil and a further small amount of cannabis. The total amount found was approximately 312 grams.

4

The police also found three pairs of scales, two cutters and a chopping board. Two of the scales and one of the cutters were subsequently analysed and found to have traces of cannabis, showing that they have been used for cutting up and weighing cannabis.

5

The Appellant was arrested and interviewed. He admitted to using 5 to 10 spliffs of cannabis a day but answered, “no comment” to questions concerning the scales and chopping board. Later that day police inspected his mobile phone and found text messages suggestive of dealing, such as, “Can I get 5 tonight please?” When further interviewed the Appellant replied, “no comment” to questions about these text messages.

6

As already mentioned the matter came before the Magistrate's Court for sentencing on 27 th September. After the Centenier had outlined the facts Advocate Haines began his mitigation by saying that the Appellant's basis of plea was as set out in paragraph 15 of the Social Enquiry Report from the Probation Service.

7

Paragraph 15, recorded the Appellant as saying that he was minding the cannabis for another person, whom he declined to name. He said his role was to divide the bars into smaller amounts ready for sale, but he himself did not sell any of the cannabis. The wraps which he had prepared were to be collected by another unnamed person and presumably sold by that person. He said that as a reward for his services he received sufficient free cannabis to continue his own drug habit, which he said was some 5 to 10 joints a day at that time.

8

When Advocate Haines made the assertion about the basis of plea Advocate Baglin objected. He pointed out that no written basis of plea had been put forward by the defence, that he had not seen the Social Enquiry Report in accordance with normal practice in the Magistrate's Court and that what was being said was inconsistent with the text messages which suggested that the Appellant had been selling wraps of 5 grams for cash.

9

Faced with this argument, the Magistrate raised the question of whether there was any need for a Newton Hearing, but neither advocate submitted that it was necessary and the matter proceeded without one.

10

In his mitigation before the Magistrate, Advocate Haines pointed out the following matters:-

  • (i) Although the Appellant had some historical convictions, largely committed whilst his marriage was breaking up, there had been no convictions since 1997, i.e. over 20 years earlier.

  • (ii) The Appellant was aged 54 and had an excellent work record with a reference from his current employer keeping his job open, if he was not sent to prison.

  • (iii) The Appellant had suffered a series of recent bereavements. His parents died in November and December 2015, respectively, his ex-wife died in 2017 and his sister died in November 2018. These all preceded the offending and he had increased his use of cannabis as a way of coping with these bereavements.

  • (iv) Most significantly, Advocate Haines pointed out that the Appellant's partner of 10 years had died unexpectedly in May 2019 which was of course after the offending. The Appellant had been about to move in to live with the partner and her two children, a boy of 22 and a girl, aged 13. He did in fact move into the home following his partner's death in order to look after her children and provide financial, emotional and practical support for them. He was very much a step father figure to them. If the Appellant was sentenced to a prison term, the partner's children would have to move as the boy did not earn enough to support the continued living in the family home.

  • (v) Following the offence the Appellant had self-referred to the Drug and Alcohol Service although, due to an administrative error on their part, the necessary work had not started.

11

In summary, Advocate Haines submitted to the Magistrate that, in view of the effect on the partner's children if a prison sentence were imposed and the other mitigation available, there were exceptional circumstances which justified a non-custodial sentence. He proposed that the Magistrate follow the suggestion in the Social Enquiry Report of a six months' probation order coupled with a community service order.

12

Having retired to consider his conclusion the Magistrate imposed a sentence of 8 months' imprisonment. He said, he did not find exceptional circumstances. He also specifically rejected the Appellant's explanation about minding the cannabis for somebody else. The Magistrate said this,

“I find that there are no exceptional circumstances in this case. The matters mentioned by Mr Haines and in particular the bereavements might have explained possession of a personal amount, but not a commercial amount of this nature. If you were making no gain from minding and cutting up the cannabis, then I don't understand why you do it and I am afraid I reject your explanation. I have no alternative but to sentenced you to imprisonment, and you will go to prison for eight months” .

13

We turn now to summarise Advocate Haines's contentions on appeal.

14

First, he says the Magistrate sentenced on the wrong factual basis. Given that there was a dispute between the prosecution and the defence as to whether the Appellant was a retail dealer or a minder, the Magistrate should either have ordered a Newton Hearing or should have sentenced on the Appellant's version of the facts. But the Magistrate did neither. He rejected the Appellant's version and sentenced on the prosecution version of events. Advocate Haines submitted that this was an error on the Magistrate's part.

15

Secondly, he...

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2 cases
  • Benjamin Robert Hagin v HM Attorney General
    • Jersey
    • Court of Appeal
    • 30 November 2020
    ...Bhojwani [2010] JRC 116 Campbell v AG [1995] JLR 136 AG v Gilbraith and Rawlinson [2017] JRC 155 Harrison v AG [2004] JLR 111 AG v Price [2019] JRC 211 AG v Rae and Spinola [2017] JRC 080 Rae v AG [2017] JCA 197 McDonough v AG [1994] JLR N7a Court of Appeal (Jersey) Law 1961 Drugs — applica......
  • Almas Uddin v The Attorney General
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    • Royal Court
    • 21 October 2020
    ...behalf. Advocate M. P. Boothman (as Amicus curiae) Ms L. B. Hallam, Crown Advocate. Authorities Graham v AG [2013] (1) JLR 91. AG v Price [2019] JRC 211 AG v Capuano [2013] JRC 084. AG v Howard [2016] JRC 027. AG v Bree and Binnie [2016] JRC 203A Magistrate's Court Appeal against sentence T......

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