Jersey Unreported Judgments

[2004]JRC128

ROYAL COURT

(Samedi Division)

16^th July 2004

The Attorney General

-v-

Tomiz Ali;

Vitor Goncalves Da Costa;

Filipa Margarida Goncalve De Freitas

Tomiz Ali

1 count of:	Supplying a controlled drug contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978. 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 5: diamorphine. Count 8: cannabis resin.
1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978. Count 6: diamorphine.

[On 11^th June 2004, the Crown accepted Not Guilty pleas to Counts 1, 2, 4 and 7].

Age:     51.

Plea:    Guilty.

Details of Offence:

 Police detained Ali and Da Costa as they left the latter's home address.  They were both searched and £150.00 and £850.00 was found respectively in their possession.  Da Costa claimed the £850.00 to be his but soon admitted that it actually belonged to Ali.

When Ali was searched, 416 mg of heroin containing 34% diamorphine was seized from his shoe.  Also seized were documents including bank details and a receipt from Barclays Bank showing an earlier deposit of £820.00, together with two keys.  Ali denied having any fixed abode.

On searching the home of Da Costa and De Freitas, police found seven wraps of heroin in the latter's handbag which she stated were given to her by Ali to look after.  This 477 mg of heroin contained 32% diamorphine.  Also found were polythene freezer bags and a set of electronic scales.

The police determined that Ali's keys gave access to Room 15, Lucerne Guest House and a search was carried out.  Consequently four bags of heroin were found - a total of 1.43 grams containing 31% by weight of diamorphine - along with 317 mg of cannabis resin, and a total of £1,155.00 cash.

During interview De Freitas claimed that Ali asked her to look after some heroin which she kept in her purse so Da Costa could not find it (Count 11).  She was also given £950.00 cash to look after (Count 13) which Ali told her was from the sale of heroin and was to pay his dealer.

Da Costa admitted to being a heroin addict and to agreeing to carry £850.00 cash to the bank for Ali, knowing it to be the proceeds of trafficking (Count 9).  He denied any knowledge of the drugs found on De Freitas.  He further volunteered that on 24^th March, 2004, he consumed £200.00 worth of heroin.  (Count 10).

During interview Ali first said that he had returned to Jersey after a one year absence to recoup a £2,000.00 debt.  He stated that he had retrieved the money owed to him during the week and subsequently paid £820.00 into a female friend's account in the U.K.  Although Ali claimed that he had a heroin habit and he usually consumed 2 bags of heroin a day, a urine test revealed Ali's body contained only cannabis resin toxins.

In a second interview Ali denied supplying either Da Costa or De Freitas with heroin, but did admit to giving Da Costa the money, asking him to pay it into the bank so as not to arouse suspicion.

During his final interview Ali was told that drugs had been discovered in his room at the Lucerne, and he eventually admitted that he had been supplying heroin, and all the monies seized were the result of that trafficking.  He also made full admissions to Counts 5, 6, 8 and 3.

Details of Mitigation:

Guilty pleas, no previous drug related convictions.

Previous Convictions:

Seven previous convictions including being drunk and disorderly, 2 offences of violence and various driving related offences - driving whilst disqualified, whilst uninsured and whilst drunk, also failing to surrender to custody at appointed time.

Conclusions:

Count 3:	4 years' imprisonment.
Count 5:	1 year's imprisonment.
Count 6:	4 years' imprisonment.
Count 8:	3 months' imprisonment, concurrent

Sentence and Observations of Court:

The Court concluded that Ali was an experienced drug dealer who had been evasive during interview and had lied to the police.  Crown's conclusions granted.

 

Vitor Goncalves Da Costa

1 count of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978. Count 9: diamorphine.
1 count of:	Assisting another to retain benefit of drug trafficking, contrary to Article 17 of the Drug Trafficking Offences (Jersey) Law 1988. Count :10.

Age:     22.

Plea:    Guilty.

Details of Offence:

See Ali above.

Details of Mitigation:

Guilty pleas, he wrote his own indictment, had the benefit of youth and had no previous convictions.

Conclusions:

Count 9:	9 months' imprisonment.
Count 10:	9 months' imprisonment, concurrent.

Sentence and Observations of Court:

In relation to De Freitas and Da Costa, the Court accepted that they had been manipulated and thus ordered, on the basis of the available mitigation, a total period of 150 hours (concurrent) Community Service (equivalent of 9 months' imprisonment) on each count for both defendants.

Filipa Margarida Goncalve de Freitas

1 count of:	Possession of a controlled drug, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978. Count 11: diamorphine.
1 count of:	Assisting another to retain benefit of drug trafficking, contrary to Article 17 of the Drug Trafficking Offences (Jersey) Law 1988. Count 13.

[On 11^th June 2004, the Crown did not proceed with Count 12].

Age:     22.

Plea:    Guilty.

Details of Offence:

See Ali (above).

Details of Mitigation:

Guilty pleas, co-operative with police and wrote her own indictment.  Benefit of youth, no previous convictions and had made efforts to remain drug free.  She was pregnant with Da Costa's child, due in October of the year of sentencing (2004).

Conclusions:

 

Count 11:	18 months' imprisonment.
Count 13:	9 months' imprisonment, concurrent.

Sentence and Observations of Court:

In relation to De Freitas and Da Costa, the Court accepted that they had been manipulated and thus ordered, on the basis of the available mitigation, a total period of 150 hours (concurrent) Community Service (equivalent of 9 months' imprisonment) on each count for both defendants.

C.M.M. Yates, Esq., Crown Advocate.

Advocate Mrs S.A. Pearmain for T. Ali.

Advocate C.M. Fogarty for V.G. Da Costa.

Advocate A.J.D. Winchester for F.M.G. de Freitas.

JUDGMENT

THE BAILIFF:

1.        These defendants have all pleaded guilty to offences involving heroin, but we will deal with each separately. 

2.        Ali is a mature man of 51 who was clearly engaged in trafficking in a Class A drug.  He has admitted being in possession with intent to supply or supplying 1.9 grams of heroin.  He was evasive with the police and lied to them until presented with evidence of his trafficking activities.

3.        The report of the Alcohol and Drugs Service draws the conclusion that Ali is an experienced drug dealer who manipulated his youthful and gullible co-accused.  In our judgment that is a reasonable inference to be drawn from all the circumstances.  The Probation Report assesses Ali as being a man who has not really accepted responsibility for his offending. 

4.        Applying the guideline case of Rimmer & Ors -v- A.G. [2001]JLR373 we agree with the Crown Advocate that the appropriate starting point is one of 7 years' imprisonment. 

5.        In mitigation, Ali has pleaded guilty to the indictment.  He has a record of convictions but he has not previously been convicted of a drugs related offence.  Ali, the conclusions of the Crown Advocate are granted and on Count 3 you will be sentenced to 4 years' imprisonment; on Count 5 to 1 year's imprisonment, concurrent; Count 6 to 4 years' imprisonment, concurrent, and Count 8 to 3 months' imprisonment, concurrent making a total of 4 years' imprisonment.

6.        De Freitas is to be sentenced for possession with intent to supply of 477 milligrams of heroin.  She was minding the drug for Ali, but has admitted that she expected to be paid something for this service.  She was prepared to involve herself in this unsavoury trade even though she knew that her boyfriend Da Costa was addicted to heroin.

7.        In mitigation, she was immediately co-operative with the police and pointed out to them where the drug was to be found.  She is aged 22 and is entitled to credit for her youth.  She has pleaded guilty to the indictment and is a first offender.  We accept the assessment of Mr Gafoor that she is a gullible young woman who was maniplulated by an experienced drug dealer.  She is pregnant and is due to give birth to her child by her co-accused Da Costa at the end of October, 2004.

8.        De Freitas you have been extremely foolish and you have allowed yourself to be drawn into serious offending.  The Court hopes you have learned your lesson and that you will never again involve yourself with drugs or in criminal behaviour.  We are going to order you to perform community service, and on each of the offences to which you have pleaded guilty, you will perform 150 hours community service, concurrently, which is the equivalent to imprisonment for 9 months.

9.        Da Costa, we are prepared to accept that you too were manipulated by an experienced drug dealer, and that in the unusual circumstances of this case we can give you the benefit of your youth and your previous good record in not sending you to prison. 

10.      We have read the references passed up in your support and we accept your statement that you wish to put behind you your use of heroin and other drugs.  On the offences to which you have pleaded guilty we order you to perform 150 hours community service and we state that that is the equivalent of 9 months' imprisonment.  We also order the forfeiture and destruction of the drugs.

Authorities

Rimmer & Ors. -v- AG  [2001]JLR373

A.G. -v- Welsh (3rd February, 2000) Jersey Unreported; [2000/21].

A.G. -v- Culkin (7^th December, 2001) Jersey Unreported; [2001/242].

R -v- Monfries [2003] EWCA Crim 3348.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp.123-4.

A.G. -v- de la Haye & Kearney (15^th December, 1995) Jersey Unreported; [1995/248].

A.G. -v- Buesnel [1996]JLR265.