Jersey Unreported Judgments

2000/141

5 pages

ROYAL COURT

(Samedi Division)

 

20^th July, 2000

 

Before:    M.C. St.J. Birt, Deputy Bailiff and

                                                      Jurats Myles, de Veulle, Le Ruez, Rumfitt, Potter,

                                                      Le Brocq, Bullen, and Georgelin.

 

 

The Attorney General

 

-v-

 

Maria Berta Cordos Baptista Trinidade

 

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 26^th May, 2000, following a guilty plea to the counts set out below entered on 4^th February, 2000, when the hearing of the prosecution against the accused was adjourned for a 'Newton' hearing, the accused having disputed certain of the facts relied on by the Crown in relation to Count 3..   On 26^th May, 2000, the Crown accepted the accused's version of the facts.

 

2 counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to              

                  Article 77 (b) of  the Customs and Excise (General Provisions) (Jersey) Law, 1972.

                  Count 1: cocaine hydrochloride

                  Count 2: diamorphine hydrochloride..

 

1 count of  possession of a controlled drug with intent to supply to another, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law             1978

                  Count 3: diamorphine hydrochloride.

 

[On 18^th May, 2000, a co-accused, who, on 4^th February, 2000, had pleaded not guilty to 1count of importation of diamorphine hydrochloride (count 4) and to 1 count  of aiding/abetting the offence of possession with intent to supply diamorphine hydrochloride was acquitted of the said charges by the Inferior Number, en police correctionnelle, and discharged.]

 

Age:     50

 

Details of Offence:

 

Trindade was stopped and subsequently arrested by Customs Officers when she arrived at Jersey Airport from Gatwick.   An X-Ray indicated the presence of a foreign object inside Trindade's abdomen and she subsequently produce a package which she had secreted internally and she admitted that the package contained heroin and that it was for her personal use.   In the interview she claimed that she had gone specifically to London for the purchasing of heroin because it was cheaper and that she had paid £35.00 per gram and that she purchased 15 grams.   She maintained that it was for her personal use.   Subsequently she gave a statement to the effect that she had only been involved in the importation so as to assist her supplier and that upon returning to Jersey she was to hand over the drugs to her Jersey supplier and in return her drug debt of approximately £500 would be clear and she would receive a small quantity of heroin for her personal use.   She named her supplier.   When analysed, the packaging was found to contain 24.86 grams of heroin, containing 80% by weight of diamorphine which had a wholesale value of £3,729 and a street value of £7,458 in Jersey.

 

 

A personal amount being 596 milligrams of crack cocaine was also found and given a local value of £67.00.   Before the sentencing Court, Trindade instructed her Counsel to acknowledge in open court, that she had provided the information to the authorities naming her supplier and that in addition, she would be prepared to give evidence in Court against him.

 

Details of Mitigation:

 

The Crown had accepted Trindade's version of events in relation to the count on possession with intent to supply.   The Crown also accepted that Trindade was unaware that she was importing the crack cocaine.   The Crown took, as its starting point, a sentence of 10 years.   By way of mitigation, the Crown contended that she was entitled to some credit for her guilty plea, albeit not the customary one third reduction as she had been caught 'in flagrante delicto'.   Credit was also given for her background and also for her co-operation, particularly in naming her supplier.   However, it was the Crown's contention that this factor did not warrant a substantial reduction as the identity of the supplier was already known to the authorities and the supplier had left Jersey before the information was provided to the authorities.  The information was therefore viewed as having little intelligence value.   Defence Counsel contended that the starting point was too high on the facts save for one previous conviction she was of good character and had been a model prisoner when on remand.   Character references were also supplied in support of her good character and it has said she was remorseful for her involvement in the offences.   Defence Counsel contended that the giving of the information warranted a substantial reduction, as the quality of the information was not the only factor to be taken into account.   One of the major purposes in giving a discount was to encourage other persons to provide information.   The Crown had sought a recommendation for the deportation of Trindade once she completed her sentence and Defence Counsel submitted that there was an arguable case that her remaining in Jersey was not detrimental to the island.. 

 

Previous Convictions:

 

One previous possession of heroin.

 

Conclusions:               Count 1:                               1 year's imprisonment.

                      Count 2:   6 ½ years' imprisonment, concurrent;

                      Count 3:   6 ½ years' imprisonment, concurrent.

                      Recommendation for deportation.

 

Sentence & Observations of Court:

 

                      Count 1:   1 year's imprisonment.

                      Count 2:   4 years' imprisonment, concurrent;

                      Count 3:   4 years' imprisonment, concurrent.

                      TOTAL:    4 years' imprisonment.

                     

Order for forfeiture and destruction of the drugs.

 

This case fell squarely within the principles of Campbell -v- AG, but having considered the principles contained within that case and the other authorities considered the correct starting point has one of 9 years.   The guilty plea was of limited value because the drugs had been imported internally albeit not for personal use.   Defence Counsel had referred to threats to the accused so that she would undertake the importation but the Court remained of the view that people who got into debt, then acted as couriers only had themselves to blame and no allowance was therefore made for the threats.   The main mitigation was the naming of the supplier for whom she had imported the drugs.

 

The case of R. -v- A and B set out the general principles to be followed when considering what, if any, credit is to be given for information provided and credit would not be given if the information was vague, unreliable or already known to the authorities.   Although the Court approved those general principles, the fact that the information was already known to the authorities, should not deprive the accused of credit as she gave the information in good faith.   It was not suggested that the information provided was inaccurate.  An additional factor was her acknowledgement in open court of the assistance that she had provided.   The Royal Court will give a substantial reduction to persons prepared to give information so as to reward the person who does provide the information and also to encourage others to provide information.   Crown had not given sufficient weight to all of the relevant factors. On the issue of deportation, the Court considered this was a serious offence particularly as the accused had previously had a warning that she was at risk of a deportation order if she re-offended.   The Court restated the general principal that non-nationals were at risk of deportation if they committed serious offences.   By a majority, the Court decided not to make a recommendation for deportation in this case and the accused should consider herself very fortunate that they had not done so. 

 

 

                                               J.C. Gollop, Esq., Crown Advocate

                                          Advocate R. Tremoceiro for the accused.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.         In order to pay off a debt incurred to her dealer because of her addiction to heroin this defendant imported 24.86 grams of heroin concealed internally.   Fortunately she was caught by customs officers at Jersey Airport when she returned to the Island.   It is a case which falls squarely within the principles laid down in the leading case of the Campbell, Molloy & MacKenzie -v- A.G. (1995) JLR 136 C. of A.  We have considered the principles set out in that case and the other cases to which we have been referred.   We think that a correct starting point in this case is one of 9 years.

 

2.         Mr. Tremoceiro has put forward a number of points of mitigation.   He refers to the guilty plea.   We have to say that that is limited in its effect because the drugs were concealed internally but we take into account that she did admit, albeit not initially, that the drugs were not for her personal use.   Mr. Tremoceiro has also referred to her previous character.   She has only one previous conviction, although that is for possession of heroin.   Otherwise, she has no other convictions.   We have received very good references which show that she is hard working and has spent some 21 years in Jersey during which time she has only committed the one previous offence and this present offence.   We have also been referred to her attempts to cure herself of her heroin addiction in prison and to the fact that she is a model prisoner.   We are satisfied that she is remorseful, and Mr. Tremoceiro also referred us to her state of health.  

 

3.         Counsel, in addition, referred to the fact there had been some threats to the defendant in order to persuade her to undertake this trip.  We remain of the view, which this Court has expressed on previous occasions, that if people get themselves into debt through the purchase of drugs,  they have only themselves to blame for having embarked on the process in the first place and we will make no allowance for the fact that they are subsequently threatened and commit offences under those threats. 

 

4.         We turn finally to the main mitigation urged upon us by Mr. Tremoceiro.   The defendant in this case named the supplier for whom she had undertaken this trip.   The Crown has said that this information was of limited value because the information was already known to Customs and we were referred to the case of  R. -v- A&B (1999) 1 Cr.App. R.(S) p. 52 ,which makes it clear that credit will not be given:

 

"If information is unreliable, vague, lacking in practical utility or already known to the authorities..."

 

Whilst we accept the general principles described in that case we think that the fact that information was already known to the authorities should not result in there being no discount.   The defendant, after all, was not to know their state of knowledge.  When she gave her information she was giving it in good faith.   No one has suggested in this case that the information given was not completely reliable.

 

5.         There is an additional factor in this case in that the defendant is willing to have her assistance acknowledged in open court.   This Court has made it clear on a number of occasions that it will give a substantial discount where defendants provide information which is accurate and of assistance, and particularly where they acknowledge that assistance in open court.   One of the reasons for the policy is not only to reward the provision of information so that other people may be caught but to encourage others to come forward and provide information in the knowledge that their sentence will be much lower than it would have otherwise  have been.

 

6.         We think in the circumstances that the Crown has not given sufficient weight to all these factors in the allowance which it has made from the starting point.

 

7.         Stand up, please.  The sentence of the Court will be: on count 1, 12 months' imprisonment; count 2, 4 years' imprisonment; count 3, 4 years' imprisonment.   All of those to be concurrent making a total sentence of 4 years' imprisonment.   We order the forfeiture and destruction of the drugs.

 

8.         We turn finally to the question of deportation.   The Crown has invited us to make a recommendation for the defendant to be deported.   The Court has considered this very carefully.   This was a serious offence and the defendant received a warning on the last occasion from the Immigration Service that she might be at risk of deportation if she re-offended.   We wish to emphasise that non-nationals are at risk of deportation if they commit serious offences but we have been urged in this case not to make a recommendation.   In essence, Mr. Tremoceiro has put forward the same matters as he did in mitigation.   He has relied particularly on the fact that she has been here 21 years and that she led a blameless life for 17 of those years.   She is hard working.   There are the very good references to which we have been referred and he urges that, given her age and her determination to conquer her drug problem, there is a low chance of re-offending.   As I have said, the Court has considered this very carefully and is divided.   Nevertheless by a majority we will not make a recommendation in this case.   Mrs. Trinidade, you may consider yourself, to be extremely fortunate to have escaped without a recommendation for deportation.   Should you appear before this Court, or indeed any other Court, for any offence,  you can consider it extremely likely that such a Court will make a recommendation for deportation.

 

Authorities

A.G. -v- de Sousa (2^nd July, 1997) Jersey Unreported.

A.G. -v- Akehurst (29^th July, 1996) Jersey Unreported.

A.G. -v- Chadwick (30^th October, 1995) Jersey Unreported.

Neild -v- A.G. (28^th September, 1994) Jersey Unreported. C.of A.

R. -v- Nazari [1980] 3 All ER. 880.

Campbell, Molley & MacKenzie -v- A.G. (1995) JLR 136 C.of A.

A.G. -v- Necombe & Wall (25^th November, 1996) Jersey Unreported.

Archbold (2000 Ed'n): pp. 552-3.

A & B [1999] 1 Cr App R (S) 52.

A.G. -v- Breese (1^st May, 1997) Jersey Unreported.

A.G. -v- Bartlett & Maudsley (20^th March, 1996) Jersey Unreported.

A.G. -v- Kenwood (6^th March, 2000) Jersey Unreported.

A.G. -v- Jones & Ray (6^th June, 1996) Jersey Unreported.