Jersey Unreported Judgments

2001/177

ROYAL COURT

(Superior Number)

 

(exercising the appellate jurisdiction conferred upon it by

 

Article 22 of the Court of Appeal (Jersey) Law, 1961.)

 

7^th August, 2001

 

 

Cesar Manuel Ribeiro MONTEIRO

-v-

The Attorney General

 

Application for leave to appeal against a total sentence of 2 years' imprisonment, with a recommendation for deportation, passed on 27th April, 2001, by the Inferior Number of the Royal Court, following a guilty plea to:

2 counts of:

Possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1961: Count 1: diamorphine; Count 2: diamorphine.

 

The application for leave to appeal placed directly before the plenary Court, without first being submitted to Single Judge for consideration and determination.

 

Advocate D. Gilbert  for the appellant

Advocate S.E. Fitz, Crown Advocate.

 

 

 

 

 

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        Cesar Manuel Ribeiro Monteiro applies for leave to appeal against the sentence imposed by the Inferior Number on 27^th April, 2001, on  two counts of possession of heroin with intent to supply.  He was sentenced to two years' imprisonment and the Court also made a recommendation for deportation. 

2.        The applicant contends that the sentence of two years' imprisonment was manifestly excessive and that the recommendation for deportation ought not to have been made in all the circumstances of the case, particularly as the applicant's fiancée and his three year old child, by her, are resident in Jersey.

3.        The facts may be briefly stated.  On the 14^th June, 2000 the applicant was arrested by the police and found to be in possession of two wraps of heroin.  He directed the police to two further wraps of heroin, secreted in a mobile phone holder.  The aggregate weight was 301mg and it had a street value of about £200.  He told the police that he had been asked by a third party to acquire the heroin.  He had divided one of the wraps into two, with the aim of keeping part of the drug for himself.  The remainder was to be given to the third party.  The applicant was charged with possession of heroin with intent to supply and with simple possession. 

4.        On 31^st December, 2000, whilst on bail in connection with those charges, the applicant was again stopped by the police and found to be in possession of a bag containing 692mg of heroin, which he said he had purchased for £200.  He told the police that half of the money had been given to him by a friend with whom he intended to share the heroin.  He was again charged with possession with intent to supply and with simple possession.  It is to be noted that the Crown later abandoned both charges of simple possession, the applicant having pleaded guilty to possession with intent to supply.

5.        The applicant has two previous convictions for possession of heroin, the first in September 1999, when he was placed on probation with the condition that received treatment from the Drug and Alcohol Service, and the second in October 2000 when he was again placed on probation and ordered to complete 70 hours' community service.  The first probation order imposed in September 1999 came to a premature end because he failed to comply with the conditions of the order and on re-presentation before the Magistrate's Court was sentenced to 1 month's imprisonment. 

6.        Miss Gilbert, who appeared for the applicant, withdrew in argument her submission that the Inferior Number was wrong to take a starting point of six years' imprisonment.  Instead, counsel argued, forcefully, that the mitigation available to the applicant warranted a greater deduction than had been accorded by the Inferior Number.  She placed some reliance on a decision of the Court of Appeal in Morgan and Schlandt-v-AG (24^th April, 2001) Jersey Unreported CofA, where Schlandt's sentence of 30 months' imprisonment for offences involving trafficking of class A drugs at the lower end of the scale was reduced to eighteen months' imprisonment.  The Crown Advocate reminded us, however, that the value of comparisons with other cases was limited.  In Wood-v-AG (15^th February, 1994) Jersey Unreported CofA, Le Quesne, JA, stated:

"The purpose of referring to earlier cases is not to analyse the exact sentence which was then passed and the precise reasons why the court arrived at it.  This would be an impossible undertaking since sentencing is a discretionary exercise in every case and the reports do not include every feature which influence the court in exercising its discretion on earlier occasions."

In the recent judgment of the Court of Appeal in Rimmer & Ors-v-AG (19^th July, 2001) Jersey Unreported CofA, the Court decided that the decision of the Court of Appeal in Schlandt was to be regarded as particular to the facts of that case. 

7.        In this case it is true that there was considerable mitigation available to the applicant.  He was extremely cooperative with the police and readily admitted the offences and pleaded guilty to the indictment.  In one sense it could be said that he wrote his own indictment in that he volunteered his intention to supply the relatively small amount of heroin which was found in his possession on both occasions. 

8.        We think, however, that the Inferior Number gave full weight to all those mitigating factors in arriving at a sentence of two years' imprisonment from a starting point of six years.  It follows, therefore, that the application for leave to appeal against the sentence of two years' imprisonment must be refused. 

9.        We turn now to the question of deportation.  The test adopted by the Inferior Number was that set out in the leading English case of R-v-Nazari (1980), 3 All ER 880, where the Court stated:

"First, the court must consider, as was said by Sachs, L.J., in R-v-Caird (1970) 54 Cr.App.R 499 at 510, whether the accused's continued presence in the United Kingdom is to its detriment.  This country has no use for criminals of other nationalities, particularly if they have committed serious crimes, or have long criminal records - that is self evident.  The more serious the crime and the longer the record, the more obvious it is that there should be an order recommending deportation.  On the other hand, a minor offence would not merit an order recommending deportation.  In the Greater London area, for example, shoplifting is an offence which is frequently committed by visitors to this country.  Normally an arrest for shoplifting, followed by conviction, even if there were more than one offence being dealt with, would not merit a recommendation for deportation.  But, a series of shoplifting offences on different occasions may justify a recommendation for deportation."

Applying that test, the Inferior Number recalled that the applicant had two previous convictions for possession of heroin and expressed itself satisfied that the applicant's continued presence in Jersey would be to the island's detriment.

10.      Counsel for the applicant has submitted that the offences were not sufficiently serious in the overall scheme of things to warrant a recommendation for deportation.  We have given anxious consideration to the submissions of counsel on this point.  There is, of course, no doubt that the statutory threshold has been passed and, furthermore, as we have found, a sentence of two years' imprisonment is the appropriate penalty for the offences to which the applicant has pleaded guilty.  On the face of it, offences which warrant the imposition of a sentence of that magnitude must be serious enough to warrant, at the lowest, some consideration of the making of a recommendation for deportation.  The damage done to the island by heroin, which is a pernicious drug, is considerable.  Those who traffic in heroin and facilitate its distribution among users, even at the lower end of the scale, do cause great damage to the community. 

11.      We have, however, asked ourselves whether the applicant's continued presence in Jersey would be to the detriment of the community.  We agree with the Crown Advocate that the risk of re-offending is highly relevant to that determination.  In the reports submitted by the probation service to the Inferior Number the applicant was assessed to be at a medium or high risk of re-offending.  There have been several unsuccessful attempts on his part to discontinue the abuse of drugs.  Despite being placed on probation he has missed appointments with the probation service and has failed to comply with the drug treatment programme which was mapped out for him.  He was ordered to perform community service in June, 2000, but by the time of his arrest for the current offences, he had failed, on two occasions, to attend and to perform that community service.  We conclude that the applicant is, indeed, at a high risk of re-offending and that his continued presence in Jersey would be to the detriment of the community.

12.      Counsel for the applicant asked us to balance with that finding the effect upon his family life, which would result from deportation and reminded us, in particular, of the provisions of Article 8 of the European Convention on Human Rights.  We have been told that the applicant brought his fiancé with him to Jersey in 1996 and that he has a three and a half year old child, who was born in the island and who is due to start school at he beginning of next year.  We can see no reason, however, why the applicant's fiancé and young child should not return with him to their native Portugal.  Indeed, counsel for the applicant conceded that there was no insurmountable object to their doing so.  Both the applicant and his fiancé have an extended family network in Portugal and no overriding reason to maintain their family existence in Jersey. 

13.      We have examined the jurisprudence of the European Court of Human Rights, referred to us by the Crown Advocate, but nothing in that jurisprudence persuades us that the recommendation for deportation is disproportionate or unreasonable.  It, therefore, follows that the application for leave to appeal  against the recommendation for deportation must equally be refused.

 

Authorities

Morgan & Schlandt-v-AG (24^th April 2001) Jersey Unreported CofA; [2001/88]

R-v-Spinks (1987) 9 Cr. App R (S) 297.

R-v-Nazari & Other (1980) 3 All ER 880.

R-v-Secretary of State for the Home Department, ex parte Dinc (1988) QBD 3^rd April 1998.

R-v-M (2001) All ER (D) 64.

R-v-Ozen; R-v-Bozat; R-v-Kovayciz (25^th July 1996) The Times.

Human Rights (Jersey) Law 2000; Article 8.

Rimmer, Lusk and Bade-v-AG (19^th July 2001) Jersey Unreported; [2001/148].

Wood-v-AG (15^th February 1994) Jersey Unreported CofA; [1994/32].

Kenward-v-AG (14^th July 2000) Jersey Unreported; [2000/137].

AG-v-Trinidade (20^th July 2000) Jersey Unreported; [2000/141].

AG-v-de Sousa (23^rd March 2001) Jersey Unreported; [2001/69].

Peter Odendaal-Attorney General's Ref 2 of 1991 CA341.

Festus Okelola (1992) 13 Cr. App. 12 (S).

Alfred Nunu (1991) 12 Cr. App. R. (S).

Abdulaziz and Ors-v-United Kingdom (1985) EHRR 471.

PP and ORS-v-United Kingdom (1996) 21 EHRR.

Moustaquim-v-Belgium (1991) 13 EHRR 802.

Boughanemi-v-France (1996) 22 EHRR 228.

Beljoudi-v-France (1992) 14 EHRR 801.

Immigration Act 1971, Section 3.