Jersey Unreported Judgments

[2007]JCA145

COURT OF APPEAL

19^th July 2007

Before     :

The Hon Michael Beloff., Q.C., President; Dame Heather Steel; and G. C. Vos, Esq., Q.C.

Pedro Nuno Goncalves Camacho

-v-

The Attorney General

Application for leave to appeal against the sentence of 6 ½ years and the recommendation for deportation passed by the Superior Number of the Royal Court on 29^th January and 20^th February 2007, on guilty pleas to the following:

1 count of:	Supplying a controlled drug, contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).
3 counts of:	Larceny.  (Counts 2, 4 and 16).
2 counts of:	Obtaining money by false pretences.  (Counts 3 and 15).
1 count of:	Obtaining goods by false pretences.  (Count 5).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2 (1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948.  (Count 6).
1 count of:	Forgery of paper money.  (Count 7).
1 count of:	Possession of forged paper money.  (Count 8).
1 count of:	Uttering forged paper money.  (Count 9).
2 counts of:	Forgery.  (Counts 10 and 12).
1 count of:	Breaking and entry and larceny.  (Count 11).
2 counts of:	Attempted larceny.  (Counts 13 and 14).

S. E. Fitz, Crown Advocate.

Advocate R. J. MacRae - Amicus Curiae for Camacho.

JUDGMENT

PRESIDENT:

Introduction

This is the judgment of the Court.

1.        On the 17^th November 2006 in the Royal Court the Applicant, Pedro Nuno Goncalves Camacho, who is now 29 years of age, having been born in Madeira and lived in Jersey for twelve years, pleaded guilty to fifteen counts of a sixteen count indictment. A plea of not guilty to count 8 was accepted.

2.        On 29^th January 2007 the Applicant was sentenced to a total of 6½ years' imprisonment.  The Court determined in accordance with Article 3 and Article 7 of the Drug Trafficking Offences (Jersey) Law 1988 that the Applicant had benefited from drug trafficking in the sum of £50,400 in accordance with his admission and ordered the Applicant to pay £1 being the amount determined to be recovered.

3.        The sentence of six and a half years' imprisonment was made up as follows

Count 1	Supply of heroin: 5 years' imprisonment from a starting point of 10 years
Count 2	Larceny of a cheque: 6 months' imprisonment concurrent
Count 3	Obtaining money by false pretences: 6 months' imprisonment concurrent
Count 4	Larceny of a blank cheque: 6 months' imprisonment concurrent
Count 5	Obtaining goods by false pretences: 6 months' imprisonment concurrent
Count 6	Using a motor vehicle uninsured: 6 months' imprisonment concurrent
Count 7	Forgery of paper money: 6 months' imprisonment concurrent
Count 9	Uttering forged paper money: 6 months' imprisonment concurrent
Count 10	Forgery: 9 months' imprisonment concurrent
Count 11	Breaking and entering and larceny: 12 months' imprisonment consecutive
Count 12	Forgery: 9 months' imprisonment concurrent
Count 13	Attempted larceny: 6 months' imprisonment concurrent
Count 14	Attempted larceny: 6 months' imprisonment concurrent
Count 15	Attempting to obtain money by false pretences: 6 months' imprisonment concurrent
Count 16	Larceny: 6 months' imprisonment concurrent

Applications

4.        At the request of the Defence the issue of a recommendation for deportation was adjourned so that medical evidence could be obtained regarding the Applicant's partner's cardiac condition.

5.        On 20^th February 2007 Advocate Fitz on behalf of the Crown invited the Court to recommend the deportation of the Applicant under Section 3(6) of the Immigration Act as extended to Jersey by the Immigration (Jersey) Order 1993 upon completion of his sentence.  On this occasion the Applicant was represented by Advocate Haines.  Notice of the intention to make such a recommendation was served on the Applicant on 11^th January 2007 pursuant to Section 6(2) of the Immigration Act.

6.        The Court recommended that the Applicant be deported at the end of his sentence.

7.        The Applicant, represented by amicus curiae Advocate Robert MacRae, appointed by the Court, applies for leave to appeal against his sentence in respect of the five year sentence of imprisonment imposed on Count 1 for the supply of heroin and against the recommendation that he be deported at the end of his sentence.  We will deal with these two matters separately.

8.        The grounds on which this application is made are:

(i)        That the five year sentence was manifestly excessive because the appropriate starting point should have been nine years in accordance with the guidelines set out in Rimmer, Lusk and Bade v Attorney General [2001] JLR 373 so that 50.4 grams should have been at the bottom of the nine to eleven year band, therefore nine years ("the first point").  The court is referred to AG v Richard Doyle [2007] JRC 097 and AG v Roberto Andrade [2006] JRC 110 in support of the Applicant's submission that his sentence is manifestly excessive and gives rise to a feeling of injustice ("the second point").

(ii)       That the recommendation for deportation was manifestly excessive and the discretion of the Court wrongly exercised in that the Court failed properly to apply the second stage of the guidelines set out in R v Nazari [1980] 2 Cr App. R (S) 84 being (a) to consider whether the offender's continued presence would be detrimental to the country and, if satisfied that is the case, (b) to take into consideration the effect a deportation order would have on innocent persons such as the offender's family.  [That proposition, anachronistic in the light of later developments in the law, was modified to an assertion that a recommendation for deportation would unjustifiably interfere with the right to respect for family life of the Applicant and his family pursuant to article 8 of the European Convention on Human Rights ["ECHR"].]

The Sentence

9.        On 18^th and 19^th April 2006 the Applicant was interviewed concerning matters which gave rise to the various counts in the indictment and his home was searched.  He made the following admissions.

10.      Count 1.     He stated that he had a £200 a day heroin habit which he funded by "selling as well".  He said he had been selling 10 bags of heroin a day for six months, a bag being a £50 bag i.e. 0.05 of a gram.  Over a six month period it was estimated that he would have sold 1680 £50 bags realising £84,000.  However, the Applicant told his Advocates and Probation Officer that he used 4 of those 10 bags a day himself and only sold six bags which would total £50,400 realised.  Count 1 is based solely on the Applicant's admission.

11.      Counts 2 and 3 concern the larceny of a cheque from Mr Michael Horton who is in receipt of invalidity benefit.  When a payment of £131.34 did not arrive, Mr Horton discovered it had been cashed.  The applicant, using his own identification had stolen and cashed that cheque.

12.      Counts 4 and 5 concern the larceny of a blank cheque and the dishonest obtaining of £290 by the presentation of the cheque at Jim's Store and Café.  The Applicant stole the cheque in December 2005 which belonged to Good Moves Limited while he was decorating at premises where he had formerly been employed.  The cheque was cashed on 31^st December 2005.

13.      Count 6 relates to an offence committed on 23^rd March 2006 when the Applicant parked a vehicle registered to him in Georgetown Park Estate in St. Clement.  The vehicle did not display an insurance disc and no insurance has been produced for the vehicle.

14.      Counts 7 and 9 came to light when the Applicant's premises were searched on 18^th April 2006 and a quantity of copied notes were found.  These included three £20 notes and a £1 note.  The Applicant in interview admitted that he scanned money into his computer and printed it off and that he had given £100 in forged notes to a "smack head" to whom he owed money.

15.      Counts 10, 11 and 12.  When the Applicant's premises were searched, two cheques were found which belonged to Mr D Woodley of 2 Morel Cottages in the Parish of St Lawrence.  Some time between 31^st March 2006 and 5^th August 2006 the Applicant broke into Mr Woodley's home and stole an MBNA credit card, three MBNA cheques and 300 euros in cash.  The two recovered cheques were made out to the Applicant's girlfriend in the sums of £600 and £400, the Applicant having forged Mr Woodley's signature.

16.      Counts 13 and 14.  On 5^th April 2006 the Applicant attempted to extract £400 from Mr Woodley's account at a cash machine at the Coop Georgetown but entered the wrong PIN number.  On the same day he attempted to withdraw £100 in the same way from a National Westminster Bank cash machine but failed for the same reason.

17.      Count 15.  On 10^th April 2006 the Applicant attempted to obtain £200 by writing out the third cheque, stolen from Mr Woodley, to his girlfriend and presenting it for payment into his girlfriend's account.  The payment was stopped before the money could be drawn out.

18.      Count 16 concerns an offence committed on 27^th June 2006 when the Applicant was on bail and was stopped by a store detective at BHS having put a T-shirt into his bag and left the store.  The Applicant attempted to run but was prevented from doing so.

19.      This Application relates only to the five year sentence of imprisonment for the offence of supplying heroin to persons unknown between the 1^st October 2005 and 19^th April 2006, and the recommendation for deportation.  The Applicant has a number of previous convictions.  The Royal Court had the benefit of a Social Enquiry Report and a Report from the Director of the Alcohol and Drug Service, St Saviour, Jersey.

20.      In mitigation Advocate Grace addressed the Court on the basis that the Applicant was a low level supplier to a small number of regular heroin users, supplying to cover the cost of his own addiction.  A starting point of 8 - 9 years was suggested and the Court was invited to take into account the fact that no financial irregularities, deal lists, drugs or drug paraphernalia were found and that the Applicant had written his own indictment.  The Court was also invited to take into account his guilty plea and capacity to reform.  An appropriate sentence was suggested of 4½ years' imprisonment.

21.      The Crown had invited the Royal Court to adopt a starting point of 10 years for street dealing (the preferable phrase used by the Royal Court was "retail dealing").  This was in accordance with the guidelines set out in Rimmer being 20 - 50 grams 8 - 10 years, and 50 - 100 grams 9 - 11 years.  The Court considered that starting point correct and we agree.

22.      The Crown had asked for a 50% discount to include 1/3 for his plea plus an additional discount for writing his own indictment.  We endorse that approach, as did the Royal Court and are satisfied that 5 years' imprisonment was entirely appropriate in all the circumstances of this case.  It is the overall sentence, which was no doubt informed by the totality principle, which has to be considered: it could not be adjudged excessive on that basis.

We now explain our reasoning.

23.      The guidelines in Rimmer which apply to heroin sold in powder form are as follows:

[1-20 gms 7-9 years imprisonment]

20 - 50 gms 8-10 years imprisonment.

50 - 100 gms 9-11 years imprisonment.

[100 - 250 gms 10 - 13 years imprisonment]

[etc.](Para 33).

24.      In Rimmer this court stated

"we emphasise these bands represent only guidelines and they are not to be treated as if embodied in a statute.  The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of drugs and their role in the involvement as principle factors, together with other less relevant factors as indicated above. The margins of these bands are also not to be treated as set in stone. There may be exceptional cases in which a particular count and starting point may be above or below the band otherwise appropriate." (para 34)

The reference in [para 34] to other less relevant factors included street value [para 32] where the actual phrase used is "other less significant factors".

25.      It is clear that, as has been repeatedly said on both sides throughout the hearing, that the 50.4 gms [which is, on his own averment, what the Applicant supplied - a modification of his first estimate in formal interview and which, accordingly we must assume to be no less than the actual figure] is "on the cusp" of the Rimmer Bands. The maximum at the top of the second band is 10 years the minimum at the bottom of the third band is 9 years.

26.      As to the first point it is difficult to see why the Royal Court was in error in selecting 10 years as distinct from 9; that was manifestly within the area of reasonable judgement applying the Rimmer guidelines. The fact that the Applicant not merely pleaded guilty, but wrote his own indictment and other matters relied upon below went to mitigation rather than the starting point.   Role is, of course, important: but this Applicant had for a number of months supplied heroin - for profit - whether to strangers or (as he asserts) to friends seems to us immaterial.  His role may not have been on the top of the so-called food chain but it was not insignificant.

27.      As to the second point we would make two general observations. Firstly, as was said by Lord Bingham of Cornhill in O'Brien v The Independent Assessor [2007] 2 WLR 544 there is a limit to the reach of the principle that one defendant's sentence should be reduced because it is out of line with sentences other handed down to similar circumstanced defendants lesser.  As he said at paragraph 26:

"It is convenient to touch first on this disparity argument. In some cases (of which R v Fawcett (1983) 5 Cr App R (S) 158 is an example) an appeal against sentence has succeeded because right-thinking members of the public, learning of a lenient sentence imposed on a co-defendant, would think something had gone wrong with the administration of justice on also learning of a disproportionately severe sentence passed on the appellant. In some of the cases such an appellant is said to have a justified sense of grievance. If the matter is viewed through his eyes alone, that may sometimes be so. But the appellate courts of all three United Kingdom jurisdictions have shown themselves to be, in varying degrees, resistant to disparity arguments of this kind, and the reason is not hard to discern.  For while the perception of the sentenced defendant is important, a criminal sentence is imposed in the interests of the public and for its protection. The "right" sentence in a given case is that shown by statute, authority and other guidance to be best fitted to serve those ends. Thus a court will, and generally should, be very slow to impose what it regards as anything other than the right sentence simply because it or another court has imposed a "wrong" sentence on a co-defendant. The more usual approach is that very recently articulated by the Court of Appeal (Criminal Division) in R v Tate [2006] EWCA Crim 2373 at [20]:

"The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a sentence on the appellant that would in our judgment be less than the facts of the case merit".

Secondly it is very rare that the principle can usefully be applied at all in circumstances other than those of co-defendants, since axiomatically cases depend very much on their own facts.  Apposite are the observations of Beloff JA in Kenward v AG [2000] JLR at p.255, which were endorsed in Rimmer. 

"At this juncture we would like to make an observation about the utility of the reference by Counsel in this area to other decided cases.  Guideline cases of an Appellate Court are always of assistance, that indeed is their purpose.  But a guideline case such as Campbell itself constantly refers to the principle, manifestly correct, that guidelines have always to be adapted to the facts of any particular case.  It is therefore of limited utility to refer to decisions, particularly those of Courts sitting at first instance, which are (or should be) applying those guidelines to the cases before them.  Not only do such cases turn substantially on their own facts; the facts themselves available and taken into account by the Court may not always appear on the face of the judgments; and a read across from one set of facts to another is often a vain exercise.  Moreover, in the Royal Court of Jersey (and Guernsey), unlike Courts in England and Wales, the Crown has no right to appeal against lenient sentences.  We therefore express the hope that for the better conduct of court business, in future Counsel will be sparing and selective in what they cite, and make use of earlier cases (other than guideline cases) only where they can be said to illuminate, preferably expressly, a proper general approach to a common form factual situation."

We are constrained to draw attention to them yet again.  It is no doubt for a sentencing court to explain the reasons why it has passed a sentence both in fairness to the defendant and to assist (if need be) an Appellate Court.  But it would impose new and unjustified burdens on a sentencing court to have to explain why such sentence differed from those imposed by it in other cases, and ex hypothesi it could not do so in respect of cases not yet before it.  Here the Deputy Bailiff presided over all 3 cases now being compared.  Far from inferring error from that commonality of Presiding Judge (and assuming that the Jurats were of one mind) we draw the opposite inference: namely that the differences in sentence must have sprung from a different assessment of different facts by a tribunal whose general approach was similar.

28.      The Applicant refers AG v Doyle who was sentenced for a total for 5½ years imprisonment for possession of 105.6gms of cocaine and 462 tablets of ecstasy with intent to supply, and possession and supply of [in excess] of 14gms of cocaine and 138 ecstasy tablets. The Applicant's contention was that as the offending in the case of Doyle was significantly more serious than his own, he ought to receive a lesser sentence than Doyle.  But in Doyle the starting point was 11 years; and the mitigation (much of which was unavailable to the Applicant) was viewed as considerable: residual youth, previous good character, remorse, and positive references.   Further his offending was not accompanied by a variety of other offences.

29.      In AG v Andrade, Andrade was sentenced to a total of 3½ years imprisonment for being mainly concerned in the supply of approximately 35gms of heroin over a period of 141 days, and for possession of five "fifty" bags of heroin. The Applicant contends that the offending in the case of Andrade was on a par with his own and he ought to receive a sentence similar to that of Andrade.   But Andrade's supply was less.   Further there were again differences in available mitigation: he had no previous drug related convictions, residual youth, was a model prisoner and motivated to change (where as in the case of the Applicant Mr Gafoor, Director, Alcohol and Drug Services could only say "Mr Camacho uses treatment as a stop-gap when heroin is unavailable".  Again Mr Andrade's drug related offending was not accompanied by a series of other offences.

30.      It emerged clearly in the submissions of the Amicus that reference to these other cases was not the consequence of Counsel's own researches but rather of the Applicants own perception of an inequality of treatment from what he had learned about the cases of fellow prisoners while in La Moye.  We cannot accept that such a perception, however genuine, founded on an imperfect understanding both of the facts and of the judicial process, can justify interference by this Court with an otherwise unimpeachable sentence.

Deportation

31.      We now turn to the question of deportation. 

32.       The governing law is to be found in Jersey Order in Council 22/1993 - ("the Jersey Order") which provides, so far a material as follows:

"1.      This Order may be cited as the Immigration (Jersey) Order 1993 and shall come into force on 1st August 1993.

2.        In this Order "Jersey" means the Bailiwick of Jersey.

3.        (1) Sections 1 to 9, 11, 24 to 29, 32, 33 and 37 of the 1971 Act and Schedules 2 to 4 to that Act shall extend, with the modifications specified in Part 1 of Schedule 1 to this Order, to Jersey.

34.      The 1971 Act provides, as amended by the Jersey Order as follows:

3.(5).   A person who is not (a British citizen) shall be liable to deportation from the [Bailiwick of Jersey] -

.................................

(b)       if the [Lieutenant-Governor] deems his deportation to be conducive to the public good; or

................................

3.(6).   Without prejudice to the operation of subsection (5) above, a person who is not (a British citizen) shall also be liable to deportation from the (Bailiwick of Jersey) if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

Procedure for, and further provisions as to deportation

5.        (1)        Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the [Lieutenant-Governor] may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the [Bailiwick of Jersey]; and a deportation order against a person shall invalidate any leave to enter or remain in the [Bailiwick of Jersey] given him before the order is made or while it is in force.

6.        (1)        Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence.

.....................

(5)       Where a court recommends or purports to recommend a person for deportation, the validity of the recommendation shall not be called in question except on an appeal against the recommendation or against the conviction on which it is made; but -

(a)       <***> the recommendation shall be treated as a sentence for the purpose of any enactment providing an appeal against sentence;

(b)       <***>

(6)       A deportation order shall not be made on the recommendation of a court so long as an appeal or further appeal is pending against the recommendation or against the conviction on which it was made; and for this purpose an appeal or further appeal shall be treated as pending (where one is competent but has not been brought) until the expiration of the time for bring that appeal.***"

33.      Although the Applicant is a Portuguese national (i.e. a national of a member state of the EU) the power to deport him by the Jersey authorities does not depend (as it would if his deportation from England were under consideration) on community law instruments i.e. Directive 2004/38/EC [repealing Directive 64/221/EEC], which confers on citizens of the EU and their families enhanced rights  to reside within the territory of Member States, and limits the power of deportation (expulsion) on public policy grounds.

34.      In Pereira Roque v Lieutenant Governor [1998] JLR 246, the European Court of Justice ("ECJ") considered that neither ex Article 48 (3) (now Article 39) nor the provision of Directive 64/221 EEC determined the grounds on which the Jersey authorities may make a deportation order against a national of a member states ex Article 227(5)(c) of the Treaty and Article 4 of Protocol No.3 to the United Kingdom Act of Accession which imposed the duty of the insular authorities to refrain from discrimination could not be read as an indirect means of applying in Jersey provisions of EC Law such as the rules on free movement of workers.  The latter Article provided that the EC Treaty shall "apply to the Channel Islands ... rely to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of the new member states signed on 22nd January 1972".

35.      However, the ECJ added that (page 281)

"Question 2

In its second question, the national court essentially asks whether art. 4 of Protocol No.3 is to be interpreted as limiting the reasons for which a national of a Member State other than the United Kingdom may be deported from Jersey to those justified on grounds of public policy, public security or public health.

The reservation contained in art. 48(3) of the Treaty concerning, inter alia, the right of residence in the territory of Member States comprises limitations justified on grounds of public policy, public security or public health.  Council Directive 64/221/EEC of February 25^th, 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (O.J., Special Edition 1963-1964, at 117) plays down more detailed provisions on the application of those grounds.

By virtue of art. 227(5)(c) of the Treaty and Protocol No.3, the provisions of freedom of movement for workers do no apply in the territories of the Channel Islands. Moreover, as has already been stated, art. 4 of Protocol No.3 cannot be interpreted in such a way as to be used as an indirect means of extending their application to those territories.  It follows that neither art. 48(3) of the Treaty nor the provisions of Directive 64/221 determine the grounds on which the Jersey authorities may make a deportation order against a national of another Member State. 

The fact remains, however, that the rule on equal treatment laid down by art. 4 of Protocol No. 3 prohibits the Jersey authorities, even if difference of treatment between citizens of the United Kingdom and nationals of other Member States is allowed, from basing the exercise of their powers on factors which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States (see, on that point, Adoui v. Belgium (1) ([1982] E.C.R. at 1707)).  Such an arbitrary distinction would be applied if a deportation order were made against a national of another Member State on the basis of an assessment of conduct which, when attributable to the nationals of the first state, does not give rise to repressive measures or other genuine and effective measures intended to combat such conduct (see, on that point, Adoui v Belgium).

In the case of Jersey, that comparison must be made between the deportation order at issue in the main proceedings and the measures to which the same type of conduct gives rise when attributable to a citizen of the United Kingdom. 

The answer to the second question must therefore be that art. 4 of Protocol No.3 is not to be interpreted as limiting the reasons for which a national of a Member State other than the United Kingdom may be deported from Jersey to those justified on grounds of public policy, public security or public health, laid down by art. 48(3) of the Treaty and set out in detail by Directive 64/221.  Article 4 of Protocol No.3 does, however, prohibit the Jersey authorities from making a deportation order against a national of another Member State by reason of conduct which, when attributable to  citizens to the United Kingdom, does not give rise on the part of the Jersey authorities to repressive measures or other genuine and effective measures intended to combat such conduct."

36.      The restriction, such as it is, there identified on the grounds on which the Jersey authorities can deport an EU citizen, are not engaged in the present case, [Nor in reality (as distinct from in principle) are they likely to be engaged in any case where deportation is likely to be considered for criminal misconduct (see generally Richard Plender, Jersey Law Review October 1998, page 220) "The Rights of European Citizens in Jersey"].

37.      More potentially significant is the ECHR which has now been domesticated in Jersey by reason of the Human Rights (Jersey) Law 2000, and whose impact on deportation has excited an illuminating editorial in the Jersey and Guernsey Law Review June 2007 [Deportation and Human Rights], of which, as will appear, we have made conspicuous use. 

38.      Prior to the coming into effect in Jersey of the ECHR, the Court's practice was informed by the decision of the English Court of Appeal in Nazari.

39.      In Nazari the English Court of Appeal laid down guidelines for courts considering a recommendation for deportation.  The court stated that there were two questions for consideration, viz "(1) was the continued presence of the offender in the UK to the detriment of the country, and (2) what effect would the order recommending deportation have upon others not before the court and who were innocent persons?"  Lawton LJ added, "This Court and all other Courts would have no wish to break up families or impose hardship on innocent people".

40.      The Courts in both Bailiwicks have applied Nazari on many occasions.  In Mendes v AG [2003] JCA 106, Birt, Deputy Bailiff stated, "The test to be applied on deportation is the well established test in R v Nazari [1980]3All ER 880" at para 6.  In Ahmed v AG [2005] JCA 121 the Jersey Court of Appeal stated "The appropriate principles of R v Nazari were carefully considered and applied by the Royal Court and in all the circumstances of this case the recommendation for deportation cannot be faulted and was in our judgment properly made".  See also Monteiro v AG 2001/177 unreported, AG v Rodrigues [2006] JRC 009, and Mendonça v AG [2006] JRC 132. 

41.      The first limb of the Nazari test has seldom given rise to difficulty.  The continued presence of the offender being "to the public detriment" and other formulations such as "Not in the public interest" or "not conducive to the public good" have been applied in England broadly in line with the dictum of Judge LJ in N (Kenya) v Secretary of State of the Home Department [2004]EWCA Civ 1094 that "[t]he "public good" and the "public interest" are wide-ranging but undefined concepts.  In my judgment ... broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged.  They include an element of deterrence ... so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation."

42.      In the Bailiwicks similar principles are applied.  In Jersey, the courts have sometimes expressed it in terms of abuse of privilege.  In AG v Dubiel [2006] JRC 118 at para 7.  See also AG v Martin [2006] JRC 122 para 6.

43.      The second limb of the Nazari test is a balancing exercise where interests of the community in deporting the offender have been weighed against the interests of others not before the court.  The inhibition against breaking up families has not been interpreted literally, and indeed recommendations for deportation have often been made where its implementation might have led to the break-up of a family.  See, e.g. Ahmed v AG and Mendonça v AG.  The same approach has been followed in England.  See R v Oddendaal [1992] 13 Cr App R (S) 341.

44.      Several points should be made about Nazari.

First the Court was prepared to weigh in the scales of the interest of the offender's family, but not of the offender himself.

Secondly the Court expressly stated that it would not take account (because it would not properly be informed) of the particular social, economic or political conditions of the country to which the offender would be deported.

Thirdly the Court did not consider at all the extent to which it might be inhibited about recommending for deportation someone, in respect of whom circumstances might have changed before any actual order- no doubt because in that instance they quashed rather than upheld the recommendation.

45.      In Carmona v R [2006] EWCA Crim 508 the English Court of Appeal reviewed the effects of the ECHR and its incorporation into domestic law by the Human Rights Act 1999 upon judicial recommendations for deportation.  The Court found that three convention rights could potentially be engaged, namely the right to life (art. 2), the prohibition against torture (art. 3), and the right to respect of private and family life (art. 8).  [The right to liberty and security of person (art. 5) might also be relevant if the offender was ordered to be detained pending deportation.]  The Court noted that Nazari precluded the sentencing court from considering the offender's rights under articles 2 and 3 of the ECHR and found that it was "irrational" to require the court to consider the rights of the family under Article 8 but not the rights of the offender himself.  Stanley Burnton J also drew attention to the creation, since Nazari was decided, of the Asylum and Immigration Tribunal which now heard appeals from decisions of the Home Secretary to order deportation.  Furthermore, the Court noted that the judge who had imposed a long custodial sentence would have to gaze into the future to consider the effect of deportation upon the offender's family at the time of release, when circumstances might have changed considerably.  

46.      Accordingly, the English Court of Appeal stated in conclusion, at para 22:

"In our judgment, ... there is now no need for a sentencing court to consider the Convention rights of an offender whose offence justifies a recommendation for deportation.  It is moreover undesirable that the sentencing court should undertake an assessment for which it is not qualified or equipped, and which will in any event be undertaken by the Home Secretary and the Tribunal.  His Convention rights will be considered if the Home Secretary makes a deportation order against which the offender appeals to the Tribunal.  In the case of non-EU citizens, sentencing courts should consider only whether the offence committed by the offender, in the light of the information before the court, justifies the conclusion that his continued presence in this country is contrary to the public interest.  Different considerations will arise in relation to EU citizens once Directive 2004/38/EC is in force."

47.      In O'Dette and O'Dette v Law Officers Court of Appeal (Criminal Appeals 361, 362) - 28^th March 2007 the Royal Court of Guernsey, in delivering sentence, expressly adopted those dicta in Carmona, and had considered only whether the offences merited a recommendation for deportation.  On appeal the Crown supported that stance.  The facts in O'Dette were that the appellants had imported into Guernsey heroin, cocaine, and a substance which they believed erroneously to be ecstasy.  They were US citizens aged 49 and 51 whose connections with their native country were however slender.  Indeed they had lived in England for most of their lives having been brought to Liverpool by their mother at a very young age.  One appellant had married a British citizen in England and there was a child now aged 25 of that marriage.  He also had two other children from a long-term relationship with another British citizen.  All the children lived in England.  A deportation order would have required the appellants to return to the USA and to apply for leave to enter the UK where they had lived for practical purposes all their lives.  Counsel for the Crown conceded that it was very unlikely that the Lieutenant Governor would have ordered deportation.

48.      The Guernsey Court of Appeal declined to follow Carmona. They said at paragraph 72:

"We have decided not to follow Carmona and we have declined to do so for the following reasons

1.        The Lieutenant-Governor in this jurisdiction is in a very different position to that of the Home Secretary in the United Kingdom.  He has few of the resources available to the latter in making relevant enquiries since the latter has a large number of agencies, officials and advisors to whom he can refer.

2.        A recommendation to deport is not to be equated with a mere suggestion that the Lieutenant-Governor should consider deportation.  A recommendation imports the conclusion that the Court believes the deportation is the proper course for the Lieutenant-Governor to adopt.  Such a recommendation made by a Court in this jurisdiction might put the Lieutenant-Governor in a potentially invidious position viz a viz the public, if, in the event, he refused to accept the recommendation.

3.        If a recommendation to deport is made by a Court in this jurisdiction there should be a reasonable expectation that it will be acted upon.

4.        There is no appeal from the decision of the Lieutenant-Governor to deport in this jurisdiction, unlike the position in the United Kingdom, Section 8(2)(j) of the Nationality Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides for an appellate mechanism for any decision of the Home Secretary to a specialist and independent asylum and immigration Tribunal.  In the absence of any appellate mechanism from the Lieutenant-Governor's decision, an offender's only recourse in this jurisdiction would be to challenge the Order by way of judicial review."

49.      With great respect to the Guernsey Court of Appeal we can accept their conclusion without endorsing all of their reasons. Their last reason seems to us to be the most significant: i.e. that absent a right of appeal against an actual order (but the presence of an ability to appeal against a recommendation) it is only fair to someone whose modus vivendi is at risk to give him the fullest procedural protection (contrast the position in England, where there can be an appeal from the decision of the Home Secretary).  We also accept that the Lieutenant General has less resources of time and staff to carry out investigations of the kind that can more easily be made by the Home Secretary.  We would, however, add that in this context it is very important that a Court enjoys the ability to illuminate the issue by the forensic process, with the assistance of Counsel (in particular for the potential deportee) placing the fullest material before the Court.  The Executive does not have the advantage of this forensic process.  

50.      Where we part company with Guernsey Court of Appeal is in the suggestion that the Court's recommendation can create a presumption or even a legitimate expectation that it will be followed by the Lieutenant Governor.

51.      Obviously without a recommendation, the Lieutenant General cannot make an order unless he engages the powers under clause 3(5)(b) of the 1971 Act as amended by the Jersey Order.  But as the author of the editorial to which we have referred accurately states "the Lieutenant General retains an unfettered discretion" (subject only, we would add, to public law principles), and to application of his own directions i.e. in their present formulation.

"While each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation.  The Lieutenant-Governor will take into account all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.  The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

The Jersey law is modelled upon the English legislation and gives the executive, not the judiciary, the last word.  In our view, the Lieutenant Governor is entitled, if he thinks fit, having taken the Court's recommendation into account, to depart from it because circumstances may have changed since it was made, but also because he differently evaluates the various competing factors.  We are told that (prudently) he gives anyone liable to such order an opportunity to make timely representations.

52.      We  disagree with equal respect with the English Court of Appeal if they are to be taken as suggesting that because there is no interference with the rights guaranteed by Article 8 until an order is actually made, a Court is not required to take it into account in making its recommendation (para 17).  The premise may be sound, but the conclusion does not follow from it.  A recommendation for deportation which did not take account of the fact that, prior to its potential implementation, the evaluation exercise demanded by the Convention was engaged would, in our view, both lack utility and realism, not least if the practice, even if not the law, suggested that such recommendation would be followed. Any recommendation would, of course, have to make it clear that it was based on the facts as they were, or could fairly be predicted to be, before the Royal Court, and would be subject to reconsideration in the light of any intervening change of circumstance.

53.      However the Court in Carmona was surely correct to say that all potentially material articles are engaged (Article 2 right to life, Article 3 prohibition against torture), and most usually, (and material to the present application) Article 8 which provides inter alia,

"Right to Respect for Private and Family Life

1.        Everyone has the right to respect for his private and family life, ...

2.        There shall be no inference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

54.      In our view it is the family rights of the offender as well as those of his family which must be considered even if ex hypothesi, less weight is given in the balancing exercise of those of the former i.e. the offender.  As to whether this is justification for severing a family, the Article 8(2) factors must be considered, always informed by the doctrine of proportionality.

55.      How then does this analysis bear upon the case of the Applicant?  The Royal Court had to consider first whether the Applicant's continued presence in Jersey would be detrimental to the community, and if so satisfied, go on to consider the impact of deportation on his family.  The following matters were taken into consideration:

(i)        The nature of the offences, in particular the offence of the supply of a Class A drug over a period of six months between October 2005 and April 2006 which the Applicant admitted gave rise to a drug trafficking benefit in excess of £50,000.  His Advocate described him to the Court as a low level supplier.  He supplied to a small number of regular heroin users who he supplied to cover the cost of his own addiction.  The Crown referred the Court to the passage in the judgment in Nazari at p.41 which set out part of the judgment of Sachs LJ in R v Caird 54 Cr. App. R 499 in relation to whether the accused's continued presence in the UK was to its detriment

"the more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation."

(ii)       In the present case the serious offence of the supply of a Class A drug has also to be put into the context of the fourteen other offences committed in order to fund the Applicant's drug habit and which included an offence of breaking and entering and larceny amongst other offences of dishonesty, the last offence of dishonesty being committed at a time when he was on bail.  The seriousness of these offences is aggravated by being interrelated to the principal offence.

(iii)      Also to be taken into account was the Applicant's previous criminal record from which it appears that since February 2001, when he was convicted of larceny, he has been convicted of offences of fraud in August 2002, and six offences of possession of controlled drugs in February 2004.  Since 2000 there have been five Court appearances for miscellaneous driving offences. The antecedent record demonstrates a persistent offender whose offences, apart from the supply of Class A drugs, are relatively minor.

56.      The Crown Advocate submitted that the continued presence of the Applicant would most certainly be to the Island's detriment.  She indicated that:

"the Court had often stated that Jersey has no use for those who sell drugs on our streets and who commit crimes of dishonesty to support a drug habit."

57.      The Learned Deputy Bailiff in sentencing the Applicant and having referred to the case Breen & Others v AG 2002/167 went on to say:

"We are in no doubt that the defendant's continued presence in Jersey would be detrimental."

58.      The reasons he gave to support that conclusion were:

(i)        the Applicant's involvement in the supply of heroin, a Class A drug, over a period of six months;

(ii)       the fact that the Applicant committed a number of offences of dishonesty in order to feed his heroin addiction;

(iii)      the fact that the Applicant has previous convictions both for dishonesty and possession, albeit not supplying, controlled drugs; and

(iv)      the fact that the Applicant was assessed as being at medium risk of re-offending by the Probation Report.

59.      We agree with that reasoning and endorse that conclusion.

60.      We go on to consider the balancing exercise in relation to the effect that deportation would have on the Applicant, his partner and child.  This is again a fact specific exercise and we urge resistance to any temptation to try to compare cases of others liable to deportation who may (or may not) have been treated differently from a particular applicant. 

61.      The Applicant was born in Madeira on 26^th June 1978, the eldest of a family of four boys, and came to Jersey about ten years ago.  His parents remain in Madeira but he has not seen them for over five years.  He has had various employments and at the time of his conviction was said to be self employed working primarily as a tiler for friends and associates.  His employment record is good.

62.      Initially a cousin who lives in Jersey had offered him accommodation and employment and the Applicant intended to continue to live in Jersey.  For a period of about four years from approximately 2003 he has been in a relationship with his partner Raquel Gomes and they have a son Dylan Gomes born on 9^th July 2005.  Miss Gomes is of Portuguese parents but does not speak much Portuguese.  She was born in Jersey and her parents live in Jersey.  She has never been to Madeira and her only experience of Portugal has been one family holiday.  All her close family live in Jersey and she works as a nursery officer.  The child Dylan is learning English only. 

63.      The Applicant's submission is that the inability of his partner and child to speak and write Portuguese would cause them extreme difficulty in the context of a move to Madeira or Portugal.  In a letter dated 21^st June 2007 Miss Gomes stated that if the Applicant were deported, "things would be very difficult ... I have never been to Madeira and don't intend to go there." 

64.      The Royal Court was also invited to consider the medical condition of Miss Gomes who was described as suffering a heart condition, but on 20^th February 2007 the Court had been told that Miss Gomes did not wish to use that as a reason to put before the Court.

65.      When he sentenced the Applicant, the Learned Deputy Bailiff set out the domestic circumstances relied on by the Applicant and said

"It is clear from what we have been told that the relationship is under strain as a result of these recent events, but the girlfriend says that she is willing to give the relationship a chance on his release.  It is clear that if he is deported this will impact upon his relationship with his son unless, at the time of his release she follows the defendant to Madeira." 

66.      The Royal Court concluded that the serious offending and the need to prevent detriment to the Island:

"outweighs the hardship which would be caused to the girlfriend and to her child as well as to the defendant in this case."

67.      This Court has certain further updated information.

68.      The present situation is that the applicant is visited by Miss Gomes with Dylan at least twice a week whilst he is in custody and the relationship between father and son is said to be very close.  Miss Gomes lives with her mother in Jersey. She would not, we are informed, go to Portugal or leave Jersey with the Applicant if he was deported.

69.      The Court of Appeal has also been provided with medical reports which indicate a pre-existing cardiac pulmonary valvar stenosis-congenital-moderate for which Miss Gomes received treatment at Southampton University Hospital on 30^th January 2007.  A letter dated 9^th March from Dr Keeton, Consultant Cardiologist at Southampton indicates (happily) that Miss Gomes is well and free from symptoms, that she is now safe to embark on a further pregnancy, and that an outpatient review is suggested in two years' time.

70.      We have considered all the submissions with care. We are grateful to both Advocate MacRae as amicus and Advocate Fitz for their help, and we are satisfied in the light of all the information now before this Court that the Deputy Bailiff correctly balanced the competing interests in this case on the basis of the law as he applied it.  In our view, his decision must stand whether viewed through the prism of Article 8 of ECHR (as we prefer and determine as the correct approach for the future) or on traditional Nazari grounds.

71.      We accordingly refuse the applications for leave to appeal.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

Immigration Act.

Immigration (Jersey) Order of 1993.

Rimmer, Lusk and Bade v Attorney General [2001] JLR 373.

AG v Doyle [2007] JRC 097.

AG v Andrade [2006] JRC 110.

R v Nazari [1980] 2 Cr App. R (S) 84.

O'Brien v The Independent Assessor 2007 2 WLR 544.

Kenward v AG [2000] JLR 251.

Pereira Roque v Lieutenant Governor [1998] JLR 246.

Human Rights (Jersey) Law 2000.

Mendes v AG [2003] JCA 106.

Ahmed v AG [2005] JCA 121.

Monteiro v AG 2001/177.

AG v Rodrigues [2006] JRC 009.

Mendonça v AG [2006] JRC 132.

N (Kenya) v Secretary of State of the Home Department [2004]EWCA Civ 1094.

AG v Dubiel [2006] JRC 118.

AG v Martin [2006] JRC 122.

R v Oddendaal [1992] 13 Cr App R (S) 341.

Carmona v R 2006 EWCA Crim 508.

Human Rights Act 1999.

O'Dette and O'Dette v Law Officers Court of Appeal (Criminal Appeals 361, 362).

R v Caird 54 Cr. App. R 499.

Breen & Others v AG 2002/167.

Jersey Law Review October 1998, p 220.