Jersey Unreported Judgments

[2008]JRC021

ROYAL COURT

(Samedi Division)

15^th February 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Breton and Morgan.

The Attorney General

-v-

Fabio Andre Fernandes Martins

Claudio Rodrigues De Freitas

Joao Carlos Ornelas Martins

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to:

Fabio Andre Fernandes Martins

1 count of:

Attempting to acquire property representing the proceeds of drug trafficking, contrary to Article 38 (1) of the Drug Trafficking Offences (Jersey) Law 1988.  (Count 1).

Age:  24.

Plea: Guilty.

Details of Offence:

Fabio Martins was in prison.  He believed that a fellow prisoner had buried the proceeds of drug trafficking in land at the prisoner's home.  Martins got De Freitas to dig for it and got Joao Martins, his father, to provide tools and transport.  They were arrested at the location in the middle of the night.  No proceeds were found.  Fabio Martins had organised everything on an illicit mobile telephone from prison.

Details of Mitigation:

Plea and something for youth.

Previous Convictions:

Several including possession of cannabis and importation of heroin.

Conclusions:

Count 1:

12 months' imprisonment to be served consecutively to the term he is currently serving.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

Claudio Rodrigues De Freitas

1 count of:

Attempting to acquire property representing the proceeds of drug trafficking, contrary to Article 38 (1) of the Drug Trafficking Offences (Jersey) Law 1988.  (Count 1).

Age:  21.

Plea: Guilty.

Details of Offence:

See Fabio Martins above.

Details of Mitigation:

Plea, youth, good character.

Previous Convictions:

None.

Conclusions:

Count 1:

150 hours' Community Service Order or 9 months' imprisonment in default.

No recommendation for deportation sought.

Sentence and Observations of Court:

Count:           120 hours; Community Service Order or 6 months' imprisonment in default.

No recommendation for deportation made.

Joao Carlos Ornelas Martins

1 count of:

Attempting to acquire property representing the proceeds of drug trafficking, contrary to Article 38 (1) of the Drug Trafficking Offences (Jersey) Law 1988.  (Count 1).

Age:  45.

Plea: Guilty.

Details of Offence:

See Fabio Martins above.

Details of Mitigation:

Plea and good character, not acting for reward.

Previous Convictions:

None.

Conclusions:

Count 1:

150 hours' Community Service Order or 9 months' imprisonment in default.

No recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

C. E. Whelan, Esq., Crown Advocate.

Advocate A. D. Hoy for F. Martins.

Advocate P. S. Landick for De Freitas.

Advocate M. H. Temple for J. Martins

JUDGMENT

THE DEPUTY BAILIFF:

1.        You have all been charged with attempting to acquire property which represents the proceeds of drug trafficking.  In reality, on the version of events accepted by the prosecution, you were trying to steal money from a drug dealer.

2.        Fabio Martins, you heard there might be cash which was the proceeds of drug trafficking of Vitoriano Gomes hidden in a safe which was in turn buried in or near his garden.  You arranged for your friend Claudio De Freitas to try and dig it up one night and for your father to provide the implements and drive De Freitas to the scene.  In fact nothing was found and they were both observed and then arrested.

3.        Fabio Martins, you were the organiser.  You directed things from prison using your mobile telephone.  You are currently serving a sentence of 4½ years' for importation of heroin.  In mitigation we take into account that you pleaded guilty, although you were not forthcoming when originally interviewed.  We have considered the other matters in the background report and raised by your advocate. 

4.        In our opinion the Crown's conclusions allow for these matters and therefore the sentence in your case is one of 12 months' imprisonment consecutive to the sentence you are serving now. 

5.        As to deportation there is an existing recommendation.  We have no hesitation in finding that your continued presence is detrimental to Jersey in that you have committed this further offence and are assessed at being of high risk of re-offending.  We have considered the rights of you and others under Article 8 of the European Convention and we note that it appears you have a 2 year old child born to a woman who is also with you in prison.  We understand that they could accompany you to Madeira on release and that that is the plan.  Even if they could not we would not have considered deportation disproportionate given your further offending and we therefore make a further recommendation for deportation.

6.        Claudio De Freitas, you did this out of friendship but also in the hope that you might receive some money which you thought might be as much as £1,000.  On the other hand you have pleaded guilty, you are a young man, most importantly you have no previous convictions, you have a very good work record and we have read the references which have been supplied.  You are assessed at low risk of re-offending.  We also take into account that there has been delay in this matter.

7.        Taking all these matters into account we entirely agree with the Crown that a prison sentence is not required, but we do think that the sentence moved for by the Crown is correct and therefore we are going to impose a Community Service Order of 150 hours, and we state that the sentence we had in mind would have been one of 9 months' imprisonment.  

8.        We are not going to make any recommendation for deportation for the reasons given by the Crown.

9.        Joao Martins, your part in this was the least, in that on the version accepted by the Crown you only learned of the true purpose on the way to the scene.  You pleaded guilty, you have no previous convictions.  You are a 45 year old man who came to Jersey ten years ago and have been regularly employed since then.  You have a very good work record and references and you are assessed as at low risk of re-offending.  We are satisfied that you did this out of misguided loyalty to your son.

10.      We therefore agree that a prison sentence is not necessary in your case, and we further think that your lesser rôle should be reflected in a slightly lower sentence.  In your case the sentence is one of 120 hours' Community Service Order and the alternative sentence we had in mind was one of 6 months' imprisonment. 

11.      Again in your case for the reasons given by the Crown we see no need to make a recommendation for deportation.

12.      However, I must say two things to you both.  First, you must complete the community service when directed, punctually and when required, because if you break the Community Service Order by not turning up or if you re-offend then you will be brought back and punished for this offence; and on that occasion you might well end up going to prison.  Secondly, I say to both of you, if you were to re-offend then the Court would have to consider the question of deportation at that time.  We hope very much that we will see neither of you before us again.

Authorities

European Convention Article 8.