Jersey Unreported Judgments

[2007]JRC062

ROYAL COURT

(Samedi Division)

12^th March 2007

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Tibbo, Allo, Clapham, King and Newcombe.

The Attorney General

-v-

Mario Dias de Figueiredo

And

Janeth Gomes Rodrigues

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 19th January, 2007, following a guilty plea to the following charges:

Mario Dias de Figueiredo

2 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 (2) (b) of the Customs and Excise (Jersey) Law, 1999.  (Counts 1 and 2).

Age:  22

Plea: Guilty.

Details of Offence:

Defendants took ferry from Jersey to St.Malo and drove to Portugal, purchasing heroin and cocaine and returning on the ferry to Jersey.  Rodrigues 4-5 months' pregnant.  The drugs were hidden in a toy dog on the rear parcel shelf of the car.  Total weight of heroin 26.88 grams (wholesale value between £5,376 and £8,064); total weight of cocaine 509 milligrams (valued between £30 and £40).  Once drugs had been discovered, Rodrigues made limited admissions but responded "no comment" to many of the questions put to her.  De Figueiredo totally co-operated.  He said he had persuaded Rodrigues to take out a £2,000 bank loan to fund the trip and to purchase drugs.  Rodrigues later admitted the facts of the offence to the Probation Officer.  Apart from modest (not drug-related) there was no real cogent motive to commit the offence, saving knowing the drugs could be bought more cheaply in Portugal than in Jersey.

Details of Mitigation:

Guilty plea, co-operation at interview, youth.  Remorse.  Openly acknowledged in Court he had given assistance to the authorities.

Previous Convictions:

No relevant convictions..

Conclusions:

Count 1:	2½ years' imprisonment.
Count 2:	18 months' imprisonment, concurrent.

Total:  2½ years' imprisonment.

Invitation to recommend deportation.

Forfeiture and destruction of the drugs sought.

Benefit - £1,500; £1 Confiscation Order.

Sentence and Observations of Court:

Valler did not apply where second drug was insubstantial amount.  Starting point 8 years' imprisonment.

Count 1:	2½ years' imprisonment.
Count 2:	18 months' imprisonment, concurrent.

Total: 2½ years' imprisonment.

No recommendation for deportation.

Janeth Gomes Rodrigues

2 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61 (2) (b) of the Customs and Excise (Jersey) Law, 1999.  (Counts 1 and 2).

Age:  19

Plea: Guilty.

Details of Offence:

See de Figueiredo above.

Details of Mitigation:

Guilty plea, youth, good character, references, had given birth to son whilst in prison on remand.

Previous Convictions:

None.

Conclusions:

Count 1:	5 years' youth detention.
Count 2:	2½ years' youth detention, concurrent.

Total:  5 years' youth detention.

No invitation to recommend deportation.

Forfeiture and destruction of the drugs sought.

Benefit £1,640 - £1 Confiscation Order.

Sentence and Observations of Court:

Valler did not apply where second drug was insubstantial amount.  Starting point 8 years' imprisonment.

Count 1:	3½  years' youth detention.
Count 2:	18 months' youth detention, concurrent.

Total: 3½ years' youth detention.

No recommendation for deportation.

S. Sharpe, Crown Advocate.

Advocate R. Tremoceiro for Figueiredo.

Advocate P. S. Landick for Rodrigues.

JUDGMENT

THE BAILIFF:

1.        The Court has found this, in some respects, to be a difficult case.  However, the facts are straightforward.  The Defendants travelled to Portugal in order to purchase heroin and bring it back to Jersey.  The amount was 26.88 grams valued at between £5,000 and £8,000.  The Defendants also imported 500 milligrams of cocaine, but we think that that quantity is too insignificant, relatively speaking, to affect the starting point on the principles set out in AG v Valler.  This was a planned importation.  Rodrigues borrowed money and travelled with de Figueiredo to Portugal where de Figueiredo negotiated and acquired the drugs.  They were detained at the port on their return to Jersey.  Their intention was to sell part of the heroin and to keep some for themselves.

2.        We think that the appropriate starting point in this case is one of 8 years' imprisonment.  We take first de Figueiredo, who is 22 and is a first offender, apart from minor motoring convictions.  Importantly, he has co-operated with the Police to the extent of giving information about other offences and expressed willingness to give evidence against others who have been arrested.  The Court has always regarded a willingness to give information to the Police, and to allow the fact that that information has been given to be made public, as a significant mitigating factor.  The Crown Advocate has taken that factor into consideration and we think that the Crown's conclusions are correct and take proper account of all the mitigating circumstances.

3.        De Figueiredo, on Count 1 you are therefore sentenced to 2½ years' imprisonment and on Count 2 to 18 months' imprisonment, concurrent, making a total of 2½ years' imprisonment.

4.        We turn to the question of deportation to which we have given anxious consideration.  The principles, which we apply, were set out in the English case of R v Nazari [1980] 3 All ER 880,.which we have adopted in this Court on many occasions.  There is a two stage test.  We have to ask ourselves, first, whether the presence of the Defendant in the Island is detrimental to the public interest and, secondly, assuming that the answer to the first question is in the affirmative, whether there are human rights' considerations, affecting largely the interests of other innocent people, which outweigh the desirability of deporting the Defendant from the Island.  We have no hesitation in concluding that the first stage of that test is satisfied.  The Defendant has committed a serious offence of importing heroin, has been involved in that abuse of illegal drugs for some four years, and we do not consider that his presence in the Island is beneficial, and indeed, we are satisfied that his continued presence in Jersey is detrimental to the community.  The first limb of the test is therefore satisfied.  So far as the second limb is concerned, we have considered carefully the letters which have been placed before the Court from members of the Defendant's family.  We have considered the interests of the parents of the Defendant, who have lived in the Island for fourteen years and the interests of his girlfriend.  On balance, and by a majority, we find that the second limb is not satisfied and that there are considerations militating against deportation and we will not therefore make a recommendation for deportation.

5.        We turn to Miss Rodrigues who is aged 19 and is a first offender.  She was pregnant when the importation took place and she gave birth to a baby some 10 days ago.  Because of her age the provisions of the Criminal Justice (Young Offenders) (Jersey) Law 1994 apply, preventing the Court from imposing a custodial sentence unless the Court is satisfied that no other sentence is appropriate.

6.        We consider that the importation of this quantity of heroin into the Island is so serious an offence that a non-custodial sentence cannot be justified.  We want also to state quite clearly that it is not a mitigating factor that the Defendant was pregnant when the offence was committed.  We have taken account of the youth of the Defendant, as well as her guilty plea, and the remorse which she has expressed in arriving at our decision.

7.        Rodrigues, you have behaved not only criminally but also very foolishly and you have placed at risk your relationship with your young baby.  We are going to sentence you to a custodial sentence as we must, having regard to the offences that you have committed, but we are going to give as much weight as we can to the mitigating circumstances that exist.  The sentence of the Court is that you will serve 3½ years' youth detention on Count 1, 18 months' youth detention on Count 2, concurrent, making a total of 3½ years' youth detention.

8.        We have to say to you that when you have served your sentence you will be liable to be supervised by a Probation Officer or some other official for a period of time.

9.        Finally, we order the forfeiture and destruction of the drugs.

Authorities

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

AG v Valler [2002] JLR N14.

Criminal Justice (Young Offenders) (Jersey) Law 1994.