Guernsey Legal Resources

This appellant has been granted leave to appeal by a single judge. He is represented by Advocate Eeles to whom we extend legal aid to cover her preparation and work up to and including today.

2 The appellant appeared for sentencing before the Deputy Bailiff and 10 Jurats on September 3rd, 2007, when he pleaded guilty to a single count of possession on December 20th, 2006 of a Class A drug, Fentanyl, with the intention to supply to another. The Fentanyl, the subject of the charge, comprised 18 patches in the form of a gel of a strength of 100 mg.

3 The appellant, who was described in the social enquiry report as having “a protracted and chronic history of substance misuse,” has a long criminal record. For this offence, he was sentenced to 4½ years’ imprisonment to date back to January 30th, 2007, the date he was remanded in custody.

4 This is the first time that the Royal Court has had to deal with sentencing in respect of Fentanyl and it is for that reason that the single judge has quite properly granted leave to appeal to this court, whilst

5 Before the Jurats started to hear the case, the Deputy Bailiff sensibly raised with counsel the approach to sentencing for Fentanyl patches and Miss Brehaut who has, during her time as an advocate, represented a great many drug offenders, was representing the appellant. In her mitigation, which she had been good enough to provide to the Royal Court in advance, she had suggested that 18 patches containing this quantity of Fentanyl was clearly towards the very bottom end of the scale and therefore did not attract a starting point anywhere near those listed in Richards (2).

6 The report of Dr. Mortimer is mentioned in this preliminary hearing but was not put before the Jurats. We have looked at that report, as clearly it was in the Deputy Bailiff’s mind when deciding how to approach sentencing, and it is clear that Fentanyl is used clinically in place of morphine. Its qualities were summed up usefully by Crown Advocate Russell when she presented the facts to the Jurats in the following terms:

“The drug Fentanyl is a controlled drug of Class A and more specifically a narcotic analgesic, which is only available on prescription through legitimate healthcare sources. It is an exceptionally strong painkiller used for the management of pain during surgery and for persons with chronic to severe pain who are already physically tolerant of opiates. The drug is also used for the management of opiate withdrawal. Fentanyl is available in both liquid form and in patches made of clear plastic, which are applied to the skin; the patches come in varying strengths, the highest dosage being 100 mg.

Patches are referred to within the drug fraternity as ‘sticks’ or ‘stickies.’

In the local drug-using community Fentanyl patches are used in addition to and in place of heroin. An overdose of Fentanyl can result in sudden death through respiratory failure, cardiac arrest, cardio-vascular collapse or severe anaphylactic reaction.”

7 In the preliminary hearing before the Deputy Bailiff, Advocate Russell admitted that one could not precisely compare these patches with the Class A drugs with which the court is normally dealing when applying the Richards guidelines. Advocate Russell proffered her conclusion that the court was dealing with 18 of these patches of a fairly high strength and that the Court might actually be looking in any event, at the lower end of the Richards guidelines, which are the same for powder as they are for tablets. This suggestion was taken up by the Deputy Bailiff, who acknowledged that Miss Brehaut was arguing this should be dealt with far more

8 The possibility of further expert evidence was canvassed. The Deputy Bailiff, however, gave his indication that he was prepared to advise the Jurats to deal with this consignment as being in the lower end of the bands for Class A drugs, despite the submissions from Advocate Russell that this particular drug was very powerful and it was suggested, at least 80 times stronger than morphine itself.

9 Miss Brehaut, having heard what the Deputy Bailiff had to say, took instructions and appeared in the afternoon to accept the basis of the approach that the Deputy Bailiff was indicating he would adopt when discussing the matter with the Jurats and to mitigate on that basis.

10 The trial proceeded and, as is apparent, the offence charged was possession with intent to supply to others, which was conceded on behalf of the appellant. Evidence of the extent of the appellant’s supplying activity was gleaned from a number of his mobile phone text messages which referred to “stickies,” which is, as has been indicated, the colloquial name for Fentanyl patches.

11 The appellant is now represented by Advocate Eeles who seeks to go beyond the way in which Advocate Brehaut dealt with this matter at trial. She wishes to re-open the sentencing approach to Fentanyl and suggests that the Richards guidelines should have no application here. She also seeks to compare the way in which this case was disposed of with the disposal of a case involving the importation of methadone which had recently been dealt with by the Royal Court in Law Officers v. Richards (1) in 2007.

12 Her submissions were considered by the Bailiff sitting as a single judge and in an expanded note of why leave was being granted, he made a number of requests of the Crown to provide this court with further information concerning Fentanyl.

13 Miss Eeles, before this court, has two complaints about the sentence. First, she says that Fentanyl falls outside the Richards (2) guidelines and, secondly, that the starting point of seven years was manifestly excessive. Crown Advocate Russell has put in a helpful skeleton, dealing with many of the issues raised by the Bailiff and annexing a report from the States Pharmacist. She also has made some enquiries in Jersey and appends a number of alarming reports of people dying there as a result of overdosing

14 From her submissions, it seems clear that the main thrust of her argument is that the amount of Fentanyl contained in the 18 patches discovered in the possession of the appellant weighed only 0.3g. Indeed, the guidelines in Richards for Class A drugs are silent on amounts of less than 1g. but this omission may be for no other reason than the fact that amounts of known Class A drugs weighing less than 1g. have up to the present time been regarded as not justifying a charge for drug trafficking (which engages the jurisdiction of the Royal Court, rather than simple possession which would be dealt with in the Magistrate’s Court) if, indeed, it is in ordinary circumstances of sufficient quantity to form the basis of a charge. In Mrs. Russell’s submissions there are also included, first, a statement from WPS Sylvester concerning the experience of the Guernsey Police with Fentanyl abuse and, secondly, an extract from the legislation of New South Wales (based, we may reasonably assume, on expert research) which equates 0.0025g. of Fentanyl with 1g. of heroin.

15 The material produced by Crown Advocate Russell and her submissions thereon have been a great help and in an ideal world would have been before the sentencing court. However, this material reinforces the correctness of the approach adopted by the Jurats under the guidance of the Deputy Bailiff, namely that this offence should in principle be treated no less severely than any other offence of possession of a small quantity of a Class A drug with intent to supply. Although in Richards (2) this court shied away from value as a significant factor in sentencing, it is clear from the statement of Sgt. Sylvester that there is a market value for these patches and that the value of what was seized from the appellant is not insignificant. In view of the high risk of overdose if this drug is misused, the court is not impressed with arguments that this consignment is of a trifling amount, which should fall outside Richards.

16 In this court’s view, trafficking in this particular drug—which, it would appear, only enters the illicit market when those who are prescribed the drug for genuine medical reasons choose to make money out of selling it—is as serious as, if not more serious than trafficking in other Class A drugs of similar quantity. We are concerned solely with the facts of this case and the issue as to whether the sentence imposed on this appellant is too high in the circumstances. It is to be hoped that with a tightening in the practices of those who prescribe these medications the opportunities for those of a like mind to this appellant to establish an illicit trade in what appear to be originally prescription drugs may lessen.