Jersey Unreported Judgments

[2008]JRC139

ROYAL COURT

(Samedi Division)

19^th August 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton, Allo, King, Le Cornu and Newcombe.

The Attorney General

-v-

Manuel Jorge de Viveiros De Gouveia

Maria Ercilia De Almeida Da Silva

Sandra Marisa Martins Pereira

Alfredo Gois Viveiros

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

Manuel Jorge de Viveiros De Gouveia

First Indictment

1 count of:	Grave and criminal assault.  (Count 1).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 2).
1 count 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.  (Count 4).

Second Indictment

1 count of:

Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).

Age:28.

Plea: Guilty.

Details of Offence:

Assault

Whilst in a nightclub in September 2007 De Gouveia head-butted a man on the dance floor while drunk.  The victim sustained a small cut to his nose.  De Gouveia admitted the assault at the time and remanded on bail (Count 1, First Indictment).

Drugs Offences.

In February 2008, Police observed De Gouveia handing a quantity of cash to a man called Jose Hilario (a co-accused being sentenced separately).  Hilario was then followed to the Airport, where he had driven to collect Da Silva, who had arrived on a flight from Madeira.  Once she had got through Customs, Da Silva met Hilario outside, whereupon they were both arrested. 

Da Silva immediately admitted that she was carrying drugs, and a total of 227 grams of heroin was found both in her pocket and in a sanitary towel that she was wearing.  The heroin had a street value of £227,000.  Hilario and De Gouveia were also subsequently arrested (First Indictment, Count 4).  During later searches, £3,000 cash was seized from De Gouveia's home address, and €1900 from Hilario.  De Gouveia's girlfriend, Pereira was also arrested.

Da Silva subsequently admitted having imported a commercial amount of heroin into the Island for financial gain.  She said that she was merely a courier and had been threatened, although she accepted that she was to be paid for her efforts.

De Gouveia accepted in interview that he had provided Hilario with €1900 to pay Da Silva.  He said that he was to have received £5,000 for helping to arrange the importation into the Island with his contact in Madeira.  He further admitted to having supplied 40 bags of heroin to Viveiros shortly prior to his arrest (First Indictment, Count 2) together with approximately 14 grams of heroin to persons unknown during the month prior to his arrest (Second Indictment, Count 1).

Hilario admitted being involved in the importation, but currently stands to be sentenced separately in November, 2008.

Police then attended at Viveiros' apartment and seized 20 bags of heroin worth £1,000, together with a personal amount of cocaine (Third Indictment, Count 3).  Further personal amounts of heroin, cocaine and cannabis were found on his person at the time of his subsequent arrest (Third Indictment, Counts 4, 5 and 6).

Viveiros stated that he had received the heroin from De Gouveia and that he had kept 20 bags in his flat, a portion of which he intended to supply and some of which he intended to keep for himself (Third Indictment, Counts 1 and 2).  Of the remainder he said he had already used some, and had given 10 bags to his friends and had swapped 3 bags for the cocaine and cannabis that had been found in his possession (Third Indictment, Count 7).

Finally, Pereira denied any involvement in the drugs offences and was released.  However, on a subsequent prison visit she was instructed by De Gouveia to arrange the retrieval of a quantity of cash that he had hidden in a lock-up garage in town.  She attempted to do this, but the money - £8,360 in cash - was seized by Police and she was arrested.  She subsequently admitted that when asked to collect the cash, she had suspected it to be the proceeds of drug trafficking (First Indictment, Count 5).

Details of Mitigation:

Guilty pleas, wrote own indictment in relation to supply charges, clean record.

Previous Convictions:

None.

Conclusions:

First Indictment

Starting point 13 years' imprisonment.

Count 1:	4 months' imprisonment, consecutive.
Count 2:	4 years' imprisonment, concurrent.
Count 4:	7 years' imprisonment, concurrent.

Second Indictment

Count 1:

5 years' imprisonment, concurrent.

Total: 7 years' 4 months' imprisonment.

Confiscation order in the sum of £13,370 sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

First Indictment

Starting point 13 years' imprisonment.

Count 1:	4 months' imprisonment.
Count 2:	4 years' imprisonment, concurrent.
Count 4	7 years' imprisonment, concurrent.

Second Indictment

Count 1:

4 years' imprisonment, concurrent.

Total: 7 years' imprisonment.

Confiscation order in the sum of £13,370 made.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

Maria Ercilia De Almeida Da Silva

First Indictment

1 count 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.  (Count 4).

Age:48.

Plea: Guilty.

Details of Offence:

Drugs Offences.

See De Gouveia above.

Details of Mitigation:

Guilty plea, clean record, low risk of re-offending.

Previous Convictions:

None.

Conclusions:

First Indictment

Starting point 12 years' imprisonment.

Count 1:

6 years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

First Indictment

Starting point 11 years' imprisonment.

Count 1:

5 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

Sandra Marisa Martins Pereira

First Indictment

1 count of:

Assisting another to retain the benefit of drug trafficking, contrary to Article 37 of the Drug Trafficking Offences (Jersey) Law 1988.  (Count 5).

Age:28.

Plea: Guilty.

Details of Offence:

Drugs offences.

See De Gouveia above.

Details of Mitigation:

Guilty plea, no substantial involvement, clean record, carer for her and De Gouveia's daughter.

Previous Convictions:

None.

Conclusions:

First Indictment

Count 5:

240 hours' Community Service Order, 18 months' imprisonment in default.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

First Indictment

Count 5:

180 hours' Community Service Order, 12 months' imprisonment in default.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation not made.

Alfredo Gois Viveiros

Third Indictment

1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978.  (Count 1).
5 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 2, 3, 4, 5 and 6).
1 count of :	Supplying a controlled drug contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 7).

Age:39.

Plea: Guilty.

Details of Offence:

Drugs offences.

See De Gouveia above.

Details of Mitigation:

Guilty pleas.

Previous Convictions:

2 convictions comprising 3 offences, including 2 for simple drug possession.

Conclusions

Third Indictment

Starting point 7 years' imprisonment.

Count 1:	4 years' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, concurrent.
Count 5:	6 months' imprisonment, concurrent.
Count 6:	1 month's imprisonment, concurrent.
Count 7:	4 years' imprisonment, concurrent.

Total: 4 years' imprisonment.

Confiscation order in the sum of £2,280 sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Third Indictment

Starting point 7 years' imprisonment.

Count 1:	3½ years' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, concurrent.
Count 5:	6 months' imprisonment, concurrent.
Count 6:	1 month's imprisonment, concurrent.
Count 7:	3½ years' imprisonment, concurrent.

Total: 3½ years' imprisonment.

Confiscation order in the sum of £2,280 made.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

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

Advocate J. M. P. Gleeson for De Gouveia.

Advocate S. A. Pearmain for Da Silva.

Advocate M. J. Haines for Pereira

Advocate E. J. Le Guillou for Viveiros.

JUDGMENT

THE commissioner:

1.        We are concerned in this case principally with offences involving the importation and supply of heroin.  The most serious offence is that of De Gouveia, Da Silva and Hilario in which 277 grams of heroin with the potential street value of £227,000 and a wholesale value of £45,442 was imported into Jersey concealed on Da Silva who acted as the courier.  She was arrested when meeting Hilario (who is to be sentenced later) outside the airport.  The Crown submit that De Gouveia was involved in organising this importation and the subsequent distribution to small-time traders.  One of those traders was Viveiros, who was on the next rung down the ladder and who supplied others to support his own habit.  The total weight of heroin trafficked by Viveiros was around 1 gram.  Pereira, who is the partner of De Gouveia and the mother of their 8 year old daughter, attempted to assist him after his arrest and her own interview with the Police, by trying to move some £8,360 in cash he had secreted in a lock-up garage.  Finally De Gouveia has pleaded guilty to a common assault committed on 2^nd September 2007 in St James' Wine Bar, when he head-butted his victim; he had consumed a substantial amount of alcohol and has no memory of the incident.  The Court has no other information as to the cause but it is clear that the victim suffered no long term injuries. 

2.        Returning to the drugs offences, the Crown submit that the starting points for each defendant should reflect the total amount of the drug with which each defendant was concerned and we agree that that is the correct approach; none of the defence counsel resile from that.  Those amounts are; De Gouveia; 243 grams, Da Silva; 227 grams, Viveiros; approximately 1 gram.  Applying the Rimmer guidelines the Crown move for starting points, as follows; De Gouveia; 13 years, Da Silva; 12 years, and Viveiros ; 7 years.

3.        There are no guidelines for money laundering offences, see AG-v-Culkin [2001] JRC 242 and the English Court of Appeal case of O'Meally & Morgan (1994) 15 Cr. App. R. (S) 831 but in R-v-Monfries (2004) 2 Cr. App. R. (S) 3 (Divider 12) the English Court of Appeal set out the following considerations for a sentencing court that the prosecution have helpfully summarised as follows:-

(i)        Whether the accused had any direct relationship with or knowledge of the antecedent offence.

(ii)       The nature of the assistance, support and guidance given by the accused (the criminality of the laundering).

(iii)      The amount of money involved.

4.        In relation to the assault Whelan identifies a sentencing band of between 1 and 12 months' for assaults dealt with before the Royal Court and the Crown put this assault at the mid to lower level of seriousness. 

5.        Turning to the individual defendants we will deal with the sentences first and deportation will be considered separately.

6.        De Gouveia. You have played a pivotal role in the importation and supply of wholesale amounts of heroin to lesser street-level dealers.  In terms of mitigation you have pleaded guilty, you have no previous convictions and you wrote your own indictment in relation to the supply of wholesale amounts.  We have considered the references supplied on your behalf and indeed your own letter, and the reports.  It is to your credit that you have had a stable relationship and a good employment record and we note that this was, on your part, a sudden fall from grace.  We accept that you are an unsophisticated trafficker in drugs and that you have expressed remorse and shame.  The Crown are right in setting the starting point at 13 years' as properly reflecting your involvement, but we do feel able to alter the conclusions to the extent that, in our view, the common assault would not, on it's own, have attracted a custodial sentence.  We are therefore going to acceed to the defence submission that the sentence of 4 months' should run concurrently.  We will otherwise be granting the conclusions.

7.        Da Silva, the desperate financial personal circumstances in which you found yourself in Portugal and which led you to accept a payment of 2,000 Euros to make this importation, illustrates to us the grim reality of this evil trade.  You are, however, not an innocent abroad in these matters in that you put your name forward for consideration as a courier and had been involved previously in acting as a courier, although on that occasion it led to no conviction because you alerted the authorities.  You knew that you were carrying at least 160 grams of drugs and you did it for financial gain.  In terms of mitigation you have pleaded guilty and we note that you indicated your guilt immediately on arrest.  You too have no previous convictions and we have taken into account that on the previous occasion where you were involved in acting as a courier, you did alert the authorities.  You too have expressed remorse and shame for your involvement.  We regard the starting point of 12 years sought by the Crown as being too high.  In our view 11 years properly reflects your involvement in this importation.  We are therefore, in a position to reduce the Crown's conclusions. 

8.        Pereira, you were warned in your interview with the Police and yet made a conscious decision to assist De Gouveia, your partner.  There is however, no evidence that you had a direct relationship with or knowledge of the drugs offences, and the amount involved is comparatively low for offences of this type.  You have pleaded guilty.  You have no previous convictions and we know from the reports that you are assessed at being a low risk of re-offending.  You have in part, written your own indictment.  In our view you acted out of loyalty to your partner.  We have noted your health problems and indeed your own letter of remorse and the good references that have been provided to us.  In terms of community service we have first to assess the sentence of imprisonment we would impose before converting it to hours of community service and in our view, the sentence put forward by the Crown's conclusions are too high.  We are therefore able to reduce the hours of community service that you will serve. 

9.        Viverios.  You had no involvement in the importation but you were a link down the drug trafficking chain having been supplied with some 40 bags of heroin and yourself supplying a number of other persons.  You too have pleaded guilty although we note that you were not cooperative initially in your interviews with the Police.  You have two previous convictions for drug offences in 1998, some ten years ago, in which you were fined £50 for each offence.  We intend to ignore those convictions and regard you effectively as a person with a clean record in so far as is material to these offences.  You have a positive work record and we are pleased to note that you have successfully detoxed in prison.  You have expressed deep shame for your actions and the affect they have on your family and we have noted the letter from your father and the other references and the reports.  If I have not said it earlier, we have of course, noted the reports in relation to all of the defendants.  We agree with the Crown that 7 years is the appropriate starting point but in our view, the Crown have not made sufficient allowance for the mitigation that you have, in relation to your record, and to your having written your own indictment in particular in relation to Count 7, and we are therefore in a position to reduce the Crown's conclusions. 

10.      De Gouveia, in relation to the first indictment on Count 1 you are sentenced to 4 months' imprisonment, on Count 2 you are sentenced to 4 years' imprisonment, concurrent, on Count 4 you are sentenced to 7 years' imprisonment, concurrent.  On the second indictment, Count 1 you are sentenced to 4 years' imprisonment, concurrent, making a total of 7 years.

11.      Da Silva, on the first indictment, Count 4 you are sentenced to 5 years' imprisonment

12.      Pereira, on the first indictment, Count 5 you are sentenced to serve 180 hours' of Community Service, which is equivalent to 12 months' imprisonment.

13.      Viveiros, on the third indictment, Count 1; you are sentenced to 3½ years' imprisonment, on Count 2; 6 months' imprisonment, concurrent, Count 3; 12 months' imprisonment, concurrent, Count 4; 6 months' imprisonment, concurrent, Count 5; 6 months' imprisonment, concurrent, Count 6; 1 month's imprisonment, concurrent, Count 7; 3½ years' imprisonment, concurrent, making a total of 3½ years' imprisonment.

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

15.      We also make the following order in relation to the confiscation order against De Gouveia.  We authorise the Viscount to realise the asset of the following vehicles; the blue Yamaha motorcycle registration J17993 and registered to the defendant De Gouveia, and the blue Alfa Romeo 15620T Spark registration J27026 purchased by the defendant and registered to Pereira.  We order the proceeds of the sale to be deposited into the bank account known as the Drugs Trafficking Confiscation Fund. 

16.      We now turn to the issue of deportation.  The Crown invites the Court to recommend the deportation of all of the defendants other than Pereira.  These defendants do not hold British citizenship and all have been sentenced for serious offences.  In each case we are required to consider firstly whether the defendants continued presence in Jersey is to the Island's detriment, secondly, whether deportation would cause hardship to innocent persons and thirdly, the effect the deportation would have on the defendant himself.  We have applied this test in each case. 

17.      Turning to De Gouveia first, we have no doubt that his continued presence is detrimental to the interest of the Island because of his involvement in the importation of this large quantity of a Class A drug.  We have considered carefully the position of his partner and his daughter.  As and when he is deported, his partner can make a decision as to whether it is in her interest and that of her daughter, to move from the Island to join him and there will be much time to prepare for that decision.  But in our view the interest of the Island must prevail and we are therefore going to recommend his deportation. 

18.      Da Silva, again we have no doubt that your continued presence is detrimental to the interest of the Island because of your involvement in this large quantity of a Class A drug.  You have no family or links or other connections to Jersey and therefore no innocent persons will be affected by your deportation and you do not oppose your deportation.  We are therefore going to recommend your deportation. 

19.      Viveiros, again we have no doubt that your continued presence is detrimental to the Island because you are or were a drug addict who supplied heroin to others.  You have no dependant family.  You do not oppose the application and we are going to recommend deportation also in your case. 

Authorities

Rimmer and Others-v-AG [2001] JLR 373.

AG-v-Culkin [2001] JRC 242.

O'Meally & Morgan (1994) 15 Cr. App .R. (S) 831.

R-v-Monfries (2004) 2 Cr. App. R. (S) 3.

Whelan on Aspects of Sentencing.

AG-v-Soares & Aguiar [2008] JRC 015.

AG-v-Ali, Da Costa & De Freitas [2004] JRC 128.

Camacho-v-AG [2007] JCA 145.