In the case of Ware v AG, 2DS 2022/02, judgment of 31 March 2022 , the Appeal Division (HH JOA Storey QC, HH Montgomerie), gave the latest guidance on cases involving the importation (production) of very small quantities of drugs for personal use.
The facts of the case were as follows. Mr Ware was a heroin addict who imported 2.68g of heroin and a trace amount of cocaine, all of which the prosecution accepted as being for his personal use. The drugs were secreted internally in 32 bags. Mr Ware had a number of children and step-children. The Deemster stated that the “very small quantity” exceptional, which leads to sentences equivalent to possession, did not apply. Having no relevant record, the starting point was the lowest in the guidelines (5 years), there was 1/3 credit for his plea, bring the sentence to 40 months, then 25% credit for his personal mitigation, taking the sentence to 30 months.
The Appeal Division held that the issue of whether an importation is a very small quantity is “fact sensitive” (para 28). i.e. it is not simply dependent on the weight. The Appeal Division confirmed that the 2.5g asserted as the weight of cocaine supplied in Madden v AG, 2DS 2021/27 (HH JOA Storey QC, HH Montgomerie), was not a small quantity, again based on the facts of the case, not just the weight. In this case, the Deemster was entitled to take account of the number of wraps in assessing whether the exception applied. In citing authority regarding the risk of drugs being stolen despite a defendant’s intentions, the ease with which pre-wrapped drugs could be distributed appears to be an important factor in disapplying the exception (para 28).
The Appeal Division went further and analysed the authorities in small quantity cases outside the exception. The Appeal Division reviewed Guernsey and Manx case law. They held that in so far as In re Watterson 2008 MLR 144, SGD states that a discount is appropriate for other small quantity imports, it was wrongly decided (para 31).
The Appeal Division held that Article 8 of the European Convention of Human Rights applied. Whilst the Deemster had referred to it, His Honour had not stated the discount attributed to it. Further, the 25% discount should have been applied to the starting point, not the term after reduction for plea. 25% was appropriate taking into account Article 8. Therefore, the discount for personal mitigation was 15 months, reducing the sentence to 25 months.