Jersey Unreported Judgments

2001/90

ROYAL COURT

(Samedi Division)

 

27th April 2001

 

The Attorney General

-v-

Cesar Manuel Ribeiro Monteiro

 

 

2 counts of:	Possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978: Count 1: diamorphine. Count 3: diamorphine.
2 counts of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 2: diamorphine. Count 4: diamorphine.

[Counts 2 and 4 were withdrawn by the Crown].

 

Age: 31           

 

Plea:    Guilty.  

 

Details of Offence:

Count 1:  The defendant was asked by a third party to buy two wraps weighing 301 mg. for £100 as a favour.  He did this  and kept ¼ for his own use.

Count 3:  This offence was committed whilst on bail for count 1.  Monteiro and a friend each paid £100 in order to buy £200 worth of heroin.  Monteiro was the purchaser and was to give £100 worth to his friend; he did not make any profit.  This was in breach of a Magistrate's Court probation order for possession of heroin.

 

Details of Mitigation:

Only small amounts involved; the defendant had been detoxified whilst in custody; he was co-operative and had made full and frank admissions.

 

Previous Convictions:

The defendant had two previous convictions for possessing heroin.

 

Conclusions:

 

Count 1:	2 years' imprisonment. (starting point: 6 years; reduction for mitigation: 4 years)
Count 3:	2½ years' imprisonment, concurrent. (3½ year reduction for mitigation - less as offence committed whilst on bail and in breach of probation order.).
TOTAL:	2½ years' imprisonment.

 

The Crown recommended deportation and said that the case could be distinguished from de Sousa as Monteiro was 31 years old with a wife and child in Portugal and a Jersey born child of a new relationship who was currently staying with friends in Portugal.

 

Sentence and Observations of Court:

 

Count 1:	2 years' imprisonment.
Count 3:	2 years' imprisonment, concurrent.
TOTAL:	2 years' imprisonment.  Deportation recommended at end of sentence.

 

S.E. Fitz, Crown Advocate.

Advocate D. Gilbert for the accused.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        The defendant has a heroin dependency.  In June of last year he was found in possession of heroin which he intended to supply to a friend.  He had gone to purchase the drugs at the request of his friend but he did plan to make a small profit out of the transaction in that a proportion of the drugs would be kept free for himself.

2.        In December he was again found in possession of heroin with intent to supply.  On this occasion it was a joint purchase; a friend of his had contributed £100; he also contributed £100 and he had gone to purchase the drugs; he was then going to account for one half to his friend.  It was an offence of fetching and carrying as it was described by the Court of Appeal in the recent case of Morgan and Schlandt (24th April, 2001) Jersey Unreported CofA.

3.        The second offence was committed whilst he was on bail and was in breach of a probation order which had been imposed by the Magistrate's Court in October for possession of heroin.

4.        We wish to comment first on the procedures followed in the Magistrate's Court..  As we have said, the accused was placed on probation in October, 2000, for an offence of possession of heroin; this offence had been committed in February, 2000.  In other words it had taken some 6 months to process through the Magistrate's Court.  The Crown Advocate was unable to give us an explanation as to how this had occurred.  Clearly we do not know the full facts but on the face of it, it is wholly unacceptable and we wish the Crown Advocate to make enquiries as to how it occurred.  The problem was then compounded because, the defendant having been arrested in June for the June offence and having appeared before the Magistrate's Court and pleaded guilty, that matter was for some reason not dealt with in October when the Magistrate's Court dealt with the February offence, nor had it been dealt with by the time the defendant committed the further offence in December, again some five or six months after he had first appeared before the Magistrate's Court.

5.        We are aware that Mr. Le Marquand, the Magistrate, is taking steps to try and address some of the problems of delay in the Magistrate's Court but we have to say that, on the face of it, there can be no justification for the delays in this case and the failure to deal with cases when other charges were before the Court.

6.        In mitigation, Miss Gilbert has referred to the guilty plea; the fact that the defendant was extremely co-operative and made admissions which helped to prove the prosecution case; and we take all that into account.  She also referred to the very recent decision of the Court of Appeal in Schlandt and sought to argue that that case suggested the conclusions were too high in this case.  However, we take the view that the offence in June was more serious than the offences for which Schlandt was convicted because there was an element of profit in the free heroin.  It was not dissimilar to the common case where a person sells in order to pay for some of their own heroin.

7.        The second offence in December was very similar to Schlandt's but it was committed whilst the defendant was on bail and in breach of probation.  Furthermore, there was the general distinction that this defendant has two previous convictions for heroin offences whereas Schlandt had none.  We take the view that the fact that the second offence was committed whilst on bail and in breach of probation means that it should attract the same sentence as the June offence, notwithstanding that the June offence was marginally more serious.

8.        In all the circumstances we think that the right sentence is one of 2 years' imprisonment, concurrent on each count. We also order the forfeiture and destruction of the drugs.

9.        We turn next to the question of deportation, because the Crown has asked us to consider recommending deportation.  We have been referred to the leading case of R -v- Nazari (1980) 3 All ER 880 and in particular the passage at p.885 which says:

 

"First, the court must consider, as was said by Sachs LJ 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."

10.      The defendant has two previous convictions for possession of heroin.  He is now before this Court for two counts of possession of heroin with intent to supply.  We are satisfied that his continued presence in Jersey would be to Jersey's detriment.      

11.      We turn next to consider his personal circumstances as indicated in the case of Nazari and in particular the effect that recommending deportation might have on innocent persons not before the Court.

12.      This defendant came to Jersey in 1996 when he was 27.  He had been brought up in Portugal.  He is separated from his wife.  There is a child of the marriage.  Both his wife and his child live in Portugal.  He has a fiancée in Jersey, and they have a three year old daughter who was Jersey born.  For the last few months, however, the daughter has been in Portugal with friends because of the defendant's remand in custody.  However, it is intended that the child should come back to Jersey to start her education.

13.      We have considered all these matters carefully but in our view they do not outweigh the point on detriment and in the circumstances we make a recommendation that the defendant should be deported at the conclusion of his sentence.  Stand up, please, the sentence is one of 2 years' imprisonment, concurrent on each count.  We further make a recommendation for deportation. 

 

 

Authorities

Morgan and Schlandt -v- A.G. (24th April, 2001) Jersey Unreported CofA.

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

AG-v-de Sousa (23rd March, 2001) Jersey Unreported.