Jersey Unreported Judgments

[2006]JRC122

ROYAL COURT

(Samedi Division)

5^th September 2006

The Attorney General

-v-

Fabio Andre Fernandes Martins

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 9th June, 2006, following a guilty plea to the following charges:

Age:  23

Plea: Guilty

Details of Offence:

The Defendant's car was stopped by Customs Officers along with his father's car upon their simultaneous arrival from a ferry crossing from France.  The Defendant, his car and a second occupant of the vehicle were searched with a negative result.  However when the father's car was examined a void above the petrol tank containing a plastic wrapped package was exposed.  The package was found to contain 36.37 grams of a powder tested to be heroin containing 21 per cent by weight of diamorphine.  The father and other occupant of his vehicle were arrested on suspicion of the above offence.  When the Defendant was subsequently asked if he had any knowledge of the retrieved package, he stated he was aware of the package, that it contained heroin and that he had put it there and his father did not know of its presence.

Details of Mitigation:

Guilty plea, co-operation with investigating officers, residual youth, remorse and references.

Previous Convictions:

1 drug offence (fine), one theft and minor miscellaneous motoring offences (community service).

Conclusions:

Sentence and Observations of Court:

Conclusions granted.

C. M. M. Yates, Crown Advocate.

Advocate M. J. Haines for Martins.

JUDGMENT

THE BAILIFF:

1.        The Defendant has pleaded guilty to the importation of 36 grams of heroin into the island.  There is no doubt that this is a commercial quantity.  The Defendant asserts that it was for his personal use, or for the use of himself and his girlfriend.  That may be so although we note that he appears not to have been in employment for the last 8 months.  What is clear is that when a person imports such a quantity of heroin there is always a risk that some of it will find its way, by one means or another, onto the streets or into the possession of others.

2.        The Defendant is not a mere courier.  He deliberately went to Portugal to buy this heroin, and he organised its importation, including putting the drug in his father's car in St Malo and causing his father to be arrested for questioning. 

3.        Applying the guideline case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373, the Crown Advocate has taken a starting point of 9 years imprisonment.  That was not seriously contested by Defence Counsel and we agree that this is the appropriate starting point on the authorities.

4.        In mitigation, Martins is still a young man.  He was 22 at the time of the offence.  He has pleaded guilty to the Indictment and admitted his involvement in the offence, co-operating with the investigating officers.  He has expressed some remorse.  He has provided, through his Counsel, a number of references from relatives and friends who express their confidence in him.  It is sad that a young man of Martins' age should have become addicted to heroin and have committed a serious offence of this kind.  Having said that, we take into account all the mitigating circumstances and in our judgment the Crown Advocate has made the appropriate allowance for them.  The conclusions are granted and you are accordingly sentenced to 4½ years' imprisonment.

5.        We turn now to the question of deportation.  The Court has considered the guidelines set out in R-v-Nazari [1980] 3 All ER 880.  The test to be applied by the Court has two elements; the first is whether the continued presence of the Defendant in the island would be detrimental to the public good; the second is whether, if the answer to the first question is in the affirmative, the deportation would be disproportionate, having regard to the right to family life contained in Article 8 of the European Convention on Human Rights. 

6.        As we have stated, the Defendant is a heroin addict, although, the Court has been told that he has de-toxed whilst on remand in prison.  He is said in the reports to be at medium risk of re-offending.  The indisputable fact is that he has not worked for the last 8 months since becoming a heroin addict.  The Court has no doubt that the first limb of the test is satisfied and that the continued presence, in Jersey, of the Defendant is detrimental to the interests of the community.  To live in Jersey is a privilege and if the privilege is abused it is liable to be withdrawn. 

7.        Turning to the second limb of the test, the Court has considered carefully the interests of the Defendant's girlfriend and of his parents.  The girlfriend is a Portuguese speaker and could, if she wished, accompany the Defendant if he is deported to Portugal.  The Defendant's parents have lived in the island for 8 years and the Defendant is their only child.  We accept that the parents will be affected if the Defendant is deported. 

8.        Our conclusion is, by a majority, that the effect upon the family life of the Defendant would not be disproportionate, having regard to the interests of other young people in Jersey and indeed to the interests of the community as a whole.  We will therefore recommend to the Lieutenant Governor that at the conclusion of his sentence the Defendant be deported to Portugal.

Authorities

Rimmer, Lusk and Bade-v-AG [2001] JLR 373.

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