When Gareth Francis Cunningham pleaded guilty to a drugs offence in March, thereby breaking the orders imposed last December, the Relief Magistrate judged that the orders continue and that there be “no separate penalty” in relation to the drugs offence.
But the Crown then appealed to the Royal Court, with Cunningham’s defence lawyer agreeing, arguing that a court cannot impose “no separate penalty” when no other penalty is imposed on any other matter before the Court for sentence on the same occasion.
The Relief Magistrate conceded that to impose no separate penalty in these circumstances was “invalid”, thereby requiring Cunningham to be resentenced on appeal.
The Royal Court considered giving Cunningham an absolute discharge but, with the defendant having more than 33 previous drugs offences, it could not find the “exceptional circumstances” required.
However, the Deputy Bailiff, Robert MacRae, who was sitting with Jurats Robert Christensen and Kim Averty said: “We are pleased to hear that Mr Cunningham is complying with the probation order and the community service order imposed in December of last year, that he is looking for work and generally making progress in his life.
“We have considered the possibility of making a binding over order, which would have had a similar effect to the order that we propose to make today.
“In our view, the appropriate sentence to impose today is a conditional discharge for the period of six months. What this means, Mr Cunningham, is that if you do not reoffend for six months from today then you will hear no more about this matter, but if you do reoffend within the six months from today then you will be resentenced for this offence.”