Jersey Unreported Judgments

[2007]JRC221

ROYAL COURT

(Samedi Division)

26^th November 2007

Before     :

F. C. Hamon, Esq., O.B.E. Commissioner and Jurats Le Brocq, Bullen, Le Breton, King, Newcombe and Liddiard.

The Attorney General

-v-

Diva Hermania Fernandes

Octavio Humberto Quintal Figueira

Sentencing by the Superior Number of the Royal Court following guilty pleas to the following charges:

Diva Hermania Fernandes

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:

On Saturday 9^th June, 2007, the defendants were stopped by a Customs Officer as they arrived at the Elizabeth Terminal, St Helier, as foot passengers on the ferry from Poole.  They were questioned and searched but nothing of customs interest was found.

The next day, Customs Officers executed a search warrant in the hotel room the defendants occupied and they were arrested on suspicion of being concerned with the importation of a controlled substance. 

They were asked whether there were any drugs in the room but made no comment.  During the search various utensils, used for consumption of drugs, were seized.  A package was recovered from a cavity above the suspended ceiling in the bathroom.  The package was observed to consist of a number of smaller plastic wrapped packages of a pinkish white and brown colour.  When the Defendants were asked what they contained Fernandes replied crack and heroin.

The package was sent to the Official States Analyst.  His examination revealed that the packages contained a total of 13.94 grams of off-white, hard, lumpy powder shown to contain an average of 30% by weight of cocaine and 8.88 grams of brown powder shown to be heroin containing an average of 39% by weight of diamorphine.

A Customs expert estimated the street value of the heroin as being between £2,220 and £4,440 and of the cocaine as being between £975 and £1,254.

During interview Fernandes admitted she had imported the drugs internally and Fernandes admitted concealing them in the bathroom.  Both defendants stated, and it was accepted, that they planned to use the drugs themselves.

Details of Mitigation:

Guilty pleas very valuable in the circumstances, admissions, cooperation, remorse, the benefit of youth.

Previous Convictions:

None.

Conclusions:

Starting point 7 years' youth detention.

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

Total: 3 years' youth detention.

Recommendation for deportation sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Starting point 6 years' youth detention.

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

Total: 2 years' youth detention.

Recommendation for deportation made.

Forfeiture and destruction of drugs ordered.

Octavio Humberto Quintal Figueira

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:  31.

Plea: Guilty.

Details of Offence:

See Fernandes above.

Details of Mitigation:

Guilty pleas very valuable in the circumstances, admissions, cooperation, remorse.

Previous Convictions:

None.

Conclusions:

Starting point 7 years' imprisonment.

Count 1:	4 years' imprisonment.
Count 2:	4 years' imprisonment, concurrent.

Total: 4 years' imprisonment.

Recommendation for deportation sought.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Starting point 6 years' imprisonment.

Count 1:	3 years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.

Total: 3 years' imprisonment.

Recommendation for deportation made.

Forfeiture and destruction of drugs ordered.

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

Advocate L. J. L. Buckley for Fernandes.

Advocate J. S. Dickinson for Figueira.

JUDGMENT

THE COMMISSIONER:

1.        Both Fernandes and Figueira are charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, and that is on each of the Counts, cocaine and heroin.

2.        Fernandes is 19 years old, whereas Figueira is 31, and because of her age Fernandes falls to be sentenced under the provisions of Article 4(2) of the Criminal Justice Young Offenders (Jersey) Law 1994. 

3.        The two defendants were stopped at the Elizabeth Terminal on 9^th June, 2007 where they had arrived from Poole.  Fernandes stated that the pair were on holiday until 26^th June, but they had booked no accommodation.  The Customs Officers were told that they were going to visit an aunt while on holiday but there were no contact details of that aunt whatsoever.  We say at once that there is no doubt that the aunt exists and an address has been provided for her.  Searches were carried out but nothing was found and the pair were released.  The next morning at about 11:45 Customs Officers forced entry into Room 5 at the Bantry House Hotel where the accused were present.  Drugs were found and Fernandes admitted that she had carried them internally.  The cocaine and heroin were found in a cavity area of the bathroom ceiling and a further piece of folded tinfoil was found in a later search.  The heroin discovered had a street value of between £2,200 and £4,400 and the cocaine between £975 and £1,254.  Fernandes later made a false statement about an unnamed third person carrying the drugs but eventually it was ascertained, and she was frank about it, that she had hidden the drugs in her vagina and had used some of the crack and heroin at the hotel.

4.        Neither of the pair has previous convictions.  Nevertheless we regard the offence as so serious that there is no alternative but youth custody for Fernandes, even though she is assessed as being at a low risk of reoffending.  Whilst there is no evidence that the drugs were for their personal use, and that is less serious than an importation for commercial use, there does remain that bringing into Jersey that amount of heroin and cocaine concealed, as it was in a cavity in the toilet ceiling, always runs a risk that part of the consignment could have found its way on to the streets.

5.        Fernandes clearly is a vulnerable person and comes from an emotionally deprived background.  We have had regard to Finnegan v AG [2004] JLR 179 and Valler v AG [2002] JLR 383, but we must take into account that the drugs were for personal use.  In Valler very significant amounts are mentioned and in that case they were very high indeed.  This is not so in this case.  Fernandes has youth on her side and is trying, according to the reports, to turn her life around.  This was an extraordinary incident in that Fernandes was on bail for drug offences in England and having taken the drugs would have returned to England to answer to her bail.  We have to think that there is, however, more mitigation than the Crown has taken into account.  As the Court of Appeal has said in Rimmer the bands are not set in stone. 

6.        We are going to start, because of the small amount, at 6 years and because it was for personal use.  So Fernandes your family are right in their feelings about your co-accused.  We are going to sentence you to 2 years in youth custody and Figueira to 3 years imprisonment and we hope that while you are in prison you will rid yourself of this very serious addiction.

7.        We order the forfeiture and destruction of the drugs.

Authorities

Criminal Justice Young Offenders (Jersey) Law 1994.

Finnegan v AG [2004] JLR 179.

Valler v AG [2002] JLR 383.

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