Jersey Unreported Judgments

[2007]JRC161

ROYAL COURT

(Samedi Division)

21^st August 2007

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Bullen, Le Breton, Allo, Le Cornu, Morgan and Liddiard.

The Attorney General

-v-

Roberto Pereira De Jesus

Noel Dos Santos De Jesus

Roberto Pereira De Jesus

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 15^th June, 2007, following guilty pleas to the following charges:

3 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, 2 and 3).

Age:  19.

Plea: Guilty.

Details of Offence:

The Defendants were the organisers of three distinct and separate importations of commercial quantities of Heroin.  The first importation concerned 451 grams of Heroin.  The Defendants had gone to France for a few days and upon their return on the Ferry, Roberto de Jesus had dropped the Heroin concealed within packaging and some socks off the Ferry Ramp as he departed the Ferry.  In the early hours of the next day, both Defendants were found in the restricted zone of the Harbour but they contended they were simply going for a walk on the beach.  Both were charged and pleaded guilty to an offence of being in a prohibited area.  Subsequently Customs Officers searched the area underneath the Ramp and the package was located.  Upon examination Roberto De Jesus' fingerprint was found on the wrappings of the package.  (Count 1).

The Defendants travelled to France again and stayed there for a short period of time.  Following their return to the Island it was noted that one of the Defendants were parked in the vicinity of the Harbour during the times when the Ferries returned.  A member of the public who had been travelling on one of the Ferries during this time and who had brought back a vehicle from France was carrying out certain mechanical works to the vehicle at his home when he noted a package stuck onto the shock absorber on one of the wheels.  The package was brown parcel wrapped and was held on by a magnet.  He handed the package into the Police and upon analysis it was found to contain 27.10 grams of Heroin.

On a further date the presence of the Defendants in a motor vehicle in the vicinity of the Harbour at times when the Ferries were arriving from France was noted.  A vehicle was stopped and a brown parcel wrapped package was discovered lodged between the bumper and the chassis of the vehicle.  The package had been tied on with a piece of string and a magnet was once again used.  Contained within the package was 55.66 grams of Heroin.  The members of the public had (as with Count 2) been unwittingly used to import the Heroin (Count 3).

The Defendants were arrested and a note with the registration number and make of the car which was used on the third occasion was found.  Analysis of the telephone records from the Defendants also revealed substantial contact from French telephone landlines and also a text message between the two Defendants containing the registration and make of the vehicle upon which the third importation had been made.

In interview, Roberto de Jesus made admissions in relation to all three importations.  Noel de Jesus denied any involvement but admitted he had travelled to France etc. on the various occasions and that he was in the location observed by Customs Officers on the days when the second and third importations had taken place.  Noel de Jesus maintained his innocence but following an Inferior Number trial was convicted on all three Counts.

The total quantity of heron imported was 533.76 grams.  This had a wholesale value of between £94,100 and £105,392.  By way of contrast the street value was between £106,752 and £266,880.

In considering its approach to sentencing, the Crown followed the Court's stance in the case of AG -v- Gaish.  It, therefore, had regard to the total amount of Heroin imported.  It categorised the Defendants as organisers.  The importations were sophisticated.  The Crown viewed as a serious aggravating factor the fact that the Defendants had involved innocent third parties.  The Crown took as its "starting point" one of 16 years' imprisonment.

Details of Mitigation:

The Crown viewed the guilty pleas as the most important piece of mitigation available to him.  After initial denials he was fully co-operative in interview.  He made admissions.  He entered guilty pleas on his second appearance before the Magistrate's Court.  He had the benefit of youth and good character.  As a Defendant within the terms of the Young Offenders Law the Crown's view was that no other method of dealing with him was appropriate given that the totality of his offending was so serious and this made for a custodial sentence.  A recommendation for deportation was sought.

The Defence contended that the "starting point" of 16 years was too high and that a more appropriate one was one of 15 years.  The Defence contended that it was not permissible to add 12 months for an aggravating factor as was suggested by the Crown.  In mitigation the Defence reiterated that the main feature was the guilty plea.  He was fully co-operative and made full admissions entitling him to a full one-third reduction.  He was full of remorse.  He was intending to use his time in Prison to his benefit and it was suggested that a sentence of 7 years would be appropriate.  The Crown's application for a recommendation for deportation was opposed.  It was contended that he would be deprived of his family.  He had lived half of his life in Jersey and it was contended that he, therefore, had strong ties to the Island.

Previous Convictions:

Being in a restricted zone at the Harbour.

Conclusions:

Benefit £28,810.43 - Confiscation Order of £1 sought.

Count 1:	8 years' youth detention.
Count 2:	8 years' youth detention, concurrent.
Count 3:	8 years' youth detention, concurrent.

Total: 8 years' youth detention.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

The Court reviewed the facts which were that the two Defendants had been concerned in the importation on three occasions of a total of 533 grams of heroin which at street level had a value of between £106,000 and £266,000.  Roberto de Jesus had acknowledged that he was looking to get a profit of £200,000.  They had travelled to France where they had acquired the drugs and then arranged for their importation.  The first importation occurred when the packaging and their drugs were dropped off the Ferry Ramp.  The second and third importations were sophisticated and involved the attaching of the packages containing the drugs on the cars of innocent persons.  Two such persons were arrested and interviewed in custody etc.  The court agreed with the Crown that such importation involved a sinister factor.  The Court also agreed with the Crown that it should look at the total amount of the Heroin imported in accordance with AG -v- Gaish.  The highest band in Rimmer was 400 grams and over which equated to a 14 years and upward "starting point".  The Crown had taken a "starting point" of 15 years and added 1 year for the aggravating factor.  The Court did not consider this appropriate.  The Court took a "starting point" of 15 years.  In view of the Defendants' age, under Article 4 of the Young Offenders Law the Court had no hesitation in concluding that the totality of their offending was so serious that non- custodial sentences could not be imposed.

In mitigation, Roberto de Jesus had his guilty plea, letters of reference, youth and good character.  The Court concluded that an 8 year sentence was appropriate.

The Court then considered the issue of deportations and applied the test in R -v- Nazari.  Irrespective of their ages, the Defendants had been involved in three importations, two of which had been of a sophisticated sinister nature and they had undertaken concentrated efforts to import commercial quantities of Heroin into Jersey.  The Court was, therefore, of the view that their continued presence in Jersey would be detrimental to the Community.  This was consistent with the well established policy.  The Court then considered the second test and the affect on the offenders and the rights of the members of the family.  The Court reviewed the personal circumstances of each Defendant and in particular noted that despite the sentence imposed upon Noel De Jesus' brother, the Court viewed with concern that Noel de Jesus was then prepared to become involved in such serious offences.  The Court by a majority concluded that they needed to protect innocent members of the community and to deter others and this overrode the family needs and thus the Court made the appropriate recommendation for the deportation of both Defendants at the conclusion of their sentences.

Noel Dos Santos De Jesus

Sentencing by the Superior Number of the Royal Court after conviction by the Inferior Number on 12^th June, 2007, on charges of:

3 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, 2 and 3).

Age:  20.

Plea: Not guilty.

Details of Offence:

See Roberto Pereira de Jesus above.

Details of Mitigation:

The Crown contended that given his not guilty pleas he did not have the benefit of the substantial mitigation which was generally afforded to someone who had entered guilty pleas.  He did not have the benefit of remorse given his continued denials of involvement in the offences.   The mitigation that was available to him was limited to his age and his good character.  Once again the Crown's view was that the terms of the Young Offenders Law applied and that the totality of the offending was so serious that a non-custodial sentence could not be justified.  A recommendation for deportation was sought.

The Defence contended that a "starting point" no higher than 14 years should be applied.  It sought to suggest that his role had been less than his co-accused and sought to re-evaluate the factual basis for his convictions.  It contended that there was no evidence that he would have benefited financially from his involvement in the offences which he continued to deny.  In terms of his mitigation he was a young man and had good character.  He was also using his time usefully whilst in Prison.  He came from a close family.  Various references were handed up.  A sentence of not more than 10 year was suggested.  He opposed the recommendation for deportation.  It was reiterated that he was from a close family with members of his family in Jersey.  At the time of his release his parents would have been in Jersey for over 25 years.  Deportation would be disproportionate.  It was contended that no recommendation had been made for his brother who had, prior to his arrest, been convicted of a drug importing offence.  It would, therefore, be inconsistent to make a recommendation for one brother and not the other.

Previous Convictions:

Three offences of speeding, malicious damage and being in a prohibitive area of the Harbour.

Conclusions:

Count 1:	12 years' youth detention.
Count 2:	12 years' youth detention, concurrent.
Count 3:	12 years' youth detention, concurrent.

Total: 12 years' youth detention.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	10 years' youth detention.
Count 2:	10 years' youth detention, concurrent.
Count 3:	10 years' youth detention, concurrent.

Total: 10 years' youth detention.

See Roberto Pereira de Jesus above.

Noel de Jesus had in mitigation his letters of reference, youth and good character.  He had pleaded not guilty and continued to deny involvement.  The Court, however, felt he had played a lesser role and felt, therefore able to reduce the Crown's conclusions

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

J. C. Gollop, Esq., Crown Advocate.

Advocate M. L. Preston for R. P. De Jesus.

Advocate M. J. Haines for N. D. S. De Jesus.

JUDGMENT

THE commissioner:

1.        These Defendants, who are not related, set about the importation, on three separate occasions, of some 533 grams of heroin with a street value of between £106,000 and £266,000.  Roberto De Jesus informed the Alcohol and Drugs Services that he anticipated making a profit of £200,000.  They organised the importation, travelling to France to procure the drugs and arrange the importation. 

2.        The first importation, which they carried out themselves, was botched in that they failed to retrieve the package dropped from the ferry ramp by Roberto De Jesus.  The second and third importations were far more sophisticated and sinister, in that the packages were concealed and attached by magnets on the cars of innocent parties, two of whom were arrested, placed into custody and interviewed after the package was found on their car.

3.        We agree with the Prosecution that the involvement of innocent members of the public in this way, exposing them to the shock of arrest and custody and the potential of a prosecution themselves, is a serious factor.  We accept the approach of the Prosecution in looking at the total amount imported so as to impose concurrent sentences following the case of AG v Gaish [2006] JRC 109.  The amount involved here is above the highest band laid down in the case of Rimmer, Luck and Bade v AG [2001] JRC 148 which provides that in quantities of Class A drugs carried in powder form of 400 grams and over, the starting point is 14 years imprisonment upwards.  The Crown have taken a starting point for each Defendant of 15 years and added one year for the aggravating factor of involving innocent third parties.  Having listened to the submissions of Defence Counsel, we do not regard it as appropriate to add to the starting point for aggravating factors and therefore we take 15 years as a starting point, for both Defendants.

4.        We note that in view of the age of the Defendants the provisions of Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 1994 apply, but we have no hesitation in agreeing that the totality of the offending is so serious that a non-custodial sentence cannot be justified. 

5.        As to mitigation in the case of Roberto De Jesus, we have considered the mitigating factors put forward on his behalf, the guilty plea, the letters and references, his youth and effectively good character.  Taking all these factors into account we regard the sentence of 8 years moved by the Crown to be correct.

6.        In the case of Noel De Jesus, again we have considered the mitigation put forward on his behalf, the letters and references, his youth and effective good character.  Against that of course he pleaded not guilty and caused a trial to take place.  However, in our view, Noel De Jesus did play a lesser role in the organisation and importation and the Crown's conclusions therefore, in our view, should be reduced. 

7.        Roberto De Jesus, on Count 1 you are sentenced to 8 years' youth detention, on Count 2; 8 year's youth detention, concurrent, on Count 3; 8 years' youth detention, concurrent, making a total of 8 years' youth detention.

8.        Noel De Jesus, on Count 1 you are sentenced to 10 years' youth detention, on Count 2; 10 years' youth detention, concurrent, on Count 3; 10 years' youth detention, concurrent, making a total sentence of 10 years' youth detention.

9.        We also order the forfeiture and destruction of the drugs.

10.      We now turn to the issue of deportation.  Applying the first test in R v Nazari [1980] 3 All ER 880, we conclude that the Defendants' continued presence on the island would be detrimental to the community for the following reasons.  Firstly, notwithstanding their age, they set about organising the importation of commercial quantities of heroin, a Class A drug, in amounts which exceeded the highest band in the Rimmer case.  Secondly the importations took place over some three months and involved the sophisticated and sinister method of concealing the drugs on the exterior of cars of innocent people.  Thirdly Roberto De Jesus is assessed at being of medium to high risk of re-offending and Noel De Jesus of moderate risk of re-offending. 

11.      Turning to the second test in Nazari, namely the effect that the deportation order would have on innocent persons not before the Court, such as their families, we have taken into account the recent decision of the Court of Appeal in Camacho v AG [2007] JCA 145, to the effect that the family rights of the Defendants, as well of those of their families, need to be considered even if, ex hypothesi, less weight is given to the balancing exercise of those of the former, i.e. the Defendants. 

12.      In the case of Roberto De Jesus he came to Jersey in 1997 and he has been here for 10 years, his mother resides here with his step-father and his half brother and sister.  His father lives in Venezuela.  He is single and has no dependents. 

13.      In the case of Noel De Jesus he came to Jersey in 1999/2000, so he has been here 7-8 years, his mother and father reside here, as does his brother who is serving a 6 ½ year sentence on importation of heroin with a release date of 12^th June 2010.  He is single and has no dependents. 

14.      We note that in the case of AG v De Jesus [2006] JRC 107 (the brother of Noel De Jesus), the Court did not recommend deportation.  However that case was decided on its own facts, and in our view is in any event distinguishable.  The plan there was described as naïve and the Defendant Nelio De Jesus, was assessed at being at a low risk of re-offending.  We also observe, very much to our dismay, that Noel and Roberto De Jesus entered into these offences within months of Noel's brother being convicted of a similar offence. 

15.      We have considered, very carefully, the family rights of both families and of the Defendants.  We have considered the letter from Noel's mother and all of the other documentation put before us in relation to this issue.  However the Court takes a very serious view of these offences, the quantity of the Class A drugs that were imported, and the sophisticated and sinister method of importation that was used, and, by a majority, is of the view that the need to protect the community and the need to deter others overrides the rights of the Defendants and their families.  Drug trafficking of Class A drugs is very serious and particularly harmful to this community.  This Court wishes it to be known that it will not hesitate to act to protect that community. 

16.      We therefore recommend the deportation of both Defendants.

Authorities

AG v Gaish [2006] JRC 109.

Rimmer, Lusk and Bade v AG [2001] JRC 148.

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

R v Nazari [1980] 3 All ER 880.

Camacho v AG [2007] JCA 145.

AG v De Jesus [2006] JRC 107.