Jersey Unreported Judgments

[2008]JRC166

ROYAL COURT

(Samedi Division)

26^th September 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Bullen and Newcombe.

The Attorney General

-v-

Lino Miguel Melin De Freitas

Fabio Rafael De Jesus Gomes

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

Lino Miguel Melin De Freitas

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

Age:  21.

Plea: Guilty.

Details of Offence:

De Freitas was stopped in the street by Police and searched and found in possession of 2.14 grams of cannabis, value £20 (Count 1).  Following allegations by his partner of assault and that he had left his partner's flat carrying a commercial quantity of heroin.  The Police located and arrested De Freitas and Gomes.  Both defendants made prompt admissions confirming that there was quantity of heroin and cash which De Freitas had given to Gomes and which Gomes had concealed in his girlfriends car to avoid De Freitas being found with it.  The Police found £960 in cash which De Freitas admitted £560 were the proceeds of drug trafficking, 17 wraps of heroin, a lump of cannabis, a joint containing cannabis and a box containing a quantity of cannabis and smoking materials.  De Freitas admitted that he had purchased 1 gram of heroin which for the past few months he had been selling and it was the intention to sell the remainder of the 17 wraps.  The heroin had a value of £850.  The cash of £560 equated to the supply of approximately 11 bags of £50 bags.  The amounts of cannabis were all considered for personal use and none of the values of them exceeded £20. 

The Crown took a starting point as 7 years for De Freitas for Counts 3 and 4.  The being concerned in the supply count (Count 7 against Gomes) was not susceptible to the starting point approach but the Crown felt that a 7 year starting point would be proportionate.

Details of Mitigation:

He had been very co-operative with the Police from the outset making frank admissions.  He made admissions as to his prior dealing activities and admitted that a proportion of the monies found were the proceeds of dealing.  Guilty pleas, youth and good character.  He was a first offender. 

The Defence emphasised his youth, good character and guilty pleas.  Prison had been a sobering experience for him.  He was not a sophisticated drug dealer.  Because of difficulties within his relationship he had fallen in with bad company which had led him to use heroin and then to become involved in the supply of heroin.  Only supplying to friends.  Support from his partner, family and friends.  Numerous references provided.  It was suggested that a non-custodial sentence was appropriate.

Previous Convictions:

None

Conclusions:

Count 1:	2 weeks' imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	3 years' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	2 weeks' imprisonment, concurrent.

Total:  3 years' imprisonment.

Confiscation Order in the sum of £560 sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	2 weeks' imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	2½ years' imprisonment, concurrent.
Count 4:	2½ years' imprisonment, concurrent.
Count 5:	2 weeks' imprisonment, concurrent.

Total:  2½ years' imprisonment.

Confiscation Order in the sum of £560 made.

Forfeiture and destruction of drugs ordered.

The Defendant, De Freitas started taking heroin in April 2008 and shortly became dependant upon it and then moved onto dealing to fund his habit.  Admitted possession of 1 gram having sold 11 wraps worth £50 each for £560 and the remainder of 17 wraps would have been sold had he not been caught.  The Crown suggested a 7 year starting point with which we agree.  In mitigation Defence spoke strongly.  Guilty pleas, admissions from the start including admitted the earlier sales which was writing his own Indictment.  No previous convictions.  The Court had regard to his good work record and references.  He also had youth being only 20 at the time of the offences.  The Court felt he had very strong mitigation and the Court had given consideration to imposing a non-custodial sentence.  But dealing in heroin was always a serious matter and as it was vicious drug bringing suffering to other.  It was too serious for a non-custodial sentence.  The Court felt able to give greater credit to the mitigation available. 

Deportation:  The Court had no hesitation in finding that his continued presence was detrimental to the community.  Those who deal in class "A" drugs should be aware that it was inevitable that their presence was to the detriment to the community.  The Court had regard to family interest and those of the Defendant.  The Court just persuaded given his youth and that it was his first offence.  It was not necessary to deport.  Given a clear warning that if he re-offends then the likely consequence would be deportation. 

Fabio Rafael De Jesus Gomes

2 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 6 and 8).
1 count of:	Being concerned in the supply of a controlled drug to another, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978.  (Count 7).

Age:  21.

Plea: Guilty.

Details of Offence:

See De Freitas above.

Details of Mitigation:

His role was that of "caretaker/minder".  Full and frank admissions and co-operation.  Guilty pleas, youth.  Was not of good character and had previously breached a Binding Over Order to leave the Island.  Committed drug trafficking offences in France.  Had been on bail throughout and had not re-offended. 

The Defence contended that Gomes was not involved in drug dealing but had simply helped out a friend who had requested his assistance.  No payment or gain.  His role was very much at the lower end of the scale.  The SER spoke of a very troubled upbringing with a violent stepfather and bullying at school.  He could not read or write.  He had always been in employment.  He was now a completely different man and had the support of family and friends, had employment and undertaken steps to rid himself of his addiction voluntarily.  A non-custodial option recommended. 

Previous Convictions:

Six convictions of 36 offences in Jersey including grave and criminal assault, larceny, motoring, malicious damage, public order, drug trafficking convictions in St. Malo, France. 

Conclusions:

Count 6:	1 month's imprisonment.
Count 7:	2 years' imprisonment, concurrent.
Count 8:	2 weeks' imprisonment, concurrent.

Total:  2 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

Count 6:	1 month's imprisonment.
Count 7:	18 months' imprisonment, concurrent.
Count 8:	2 weeks' imprisonment, concurrent.

Total: 18 months' imprisonment.

Forfeiture and destruction of drugs ordered.

He had a heroin dependency and had agreed to look after the heroin in the role of a minder.  This was done specifically to avoid detection.  The Court accepted that it was a spur of the moment decision.  He is not of good character and drug convictions in France in May 2007.  He had mitigation of his guilty pleas, youth and the Court had noted the letters and various references put forward.  The Court had considered a non-custodial sentence but having regard to his record and his involvement then those who deal in class "A" drugs must expect custody.  However, the Court felt able to make reductions in the conclusions because of the available mitigation. 

Deportation:  The Court had no hesitation in confirming continuing presence was detrimental to the community.  He was involved in dealing and was at medium risk of re-offending and had previous offences whilst not in this jurisdiction but in France for drugs.  The Court had regard to the interests of the family and of the Defendant.  If he had been a first offender then they would not have made a recommendation.  However, the distinguishing factor was that he had been given a warning previously by the Lieutenant Governor following his French conviction in June 2007 and expressly told that if he re-offended then he would be deported.  He has now re-offended.  Warnings mean what they say.  The Court recommended deportation at the completion of his sentence and did not consider it disproportionate given the previous warning. 

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

Advocate C. Hall for De Freitas.

Advocate E. Le Guillou for Gomes.

JUDGMENT

THE DEPUTY BAILIFF:

1.        De Freitas, according to the reports you only started taking heroin in April 2008 yet within a short while you became dependant and you started to deal in order to fund your habit.  You have admitted taking possession of a gram of heroin and selling about eleven 50 bags for £560.  There remained 17 wraps, or 50 bags, which were in your possession at the time of your arrest and which you no doubt would have sold had you not been discovered.  The Crown suggests a starting point of 7 years being the bottom of the applicable bracket and we agree. 

2.        In mitigation Miss Hall has spoken strongly on your behalf.  She has pointed out your guilty plea, your admissions from the start including some of the sales which would not have been discovered had you not admitted to them; so you wrote your own indictment.  You have no previous convictions and that stands you in good stead.  You have a good employment work record and we have read the letters and references and you also have your youth, you were only 20 at the time.  Putting together all of this and the other matters which your counsel has referred to, there is very strong mitigation and we have therefore considered whether we can impose a non-custodial penalty.  But dealing in heroin is a vicious matter.  It leads to tremendous suffering and it is too serious, in the circumstances of this case, to deal with by way of a non-custodial sentence.  However we do feel we can reduce the conclusions.

3.        The sentence on Count 1 is 2 weeks, on Count 2; 1 month, on Count 3; 2½ years, on Count 4; 2½ years, on Count 5; 2 weeks.  That is 2½ years' imprisonment altogether.

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

5.        We then have to consider the question of deportation.  We have no hesitation in finding your continued presence in the Island to be detrimental.  It is invariably detrimental for those who deal in Class A drugs to be in the Island.  However we must consider your family and their right to a family right as well as yours.  You were brought up in Madeira but you came to Jersey when you were 7 and stayed here till you were 13.  You then returned to Madeira until you were 17, but you've been here for the last 4 years.  You have a partner who is here although your parents are in Madeira but your sister is here and you are close to her.  Your partner is Jersey born and you have a 2 year old daughter and your continued presence for her is clearly important.  We have considered very carefully whether deportation is required but we have just been persuaded that, in view of your youth and the fact that this is your first offence and all the various matters, it is not necessary, particularly bearing in mind your good work record.  So we are not going to recommend deportation in your case but be under no illusion, should you re-offend then you are fairly likely to be deported.

6.        Gomes, you too have a heroin dependency.  You agreed to look after the 17 wraps for De Freitas, you were therefore a form of minder, and you agreed to do this so that they wouldn't be discovered.  We accept it was a spur of the moment matter but you are not a person of good character.  You have a number of previous convictions and most significantly, you have been convicted of importing drugs into France and served a prison sentence there in May 2007.  Now again, your counsel has put forward mitigation, your guilty plea, your youth, again you were only 20 at the time, you are now 21, the references and letters we have read from your family and others and indeed all the other matters your counsel has put forward.  We have considered carefully whether we can proceed by way of a non-custodial sentence but we do not consider that we can.  Even though your involvement is less, the fact is you have been in trouble before and those who become involved in the dealing of Class A drugs must expect to go to prison.  However again, we think we can reduce the conclusions to reflect the mitigation. 

7.        In your case, on Count 6; 1 month, on Count 7; 18 months, on Count 8; 2 weeks, that is a total of 18 months' imprisonment.

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

9.        Now we come to deportation in your case.  Again we have no hesitation in finding your continued presence in the Island detrimental.  You were involved in the dealing of Class A drugs, you have been assessed as at medium risk of re-offending and you have previous convictions which are non-drug offences in Jersey and a drug offence in France.  However, turning to your family life you came to Jersey when you were 8, but you were then bound over to leave the island and you were away from August 2002 until 2004 when you returned early in breach of the Binding Over Order.  You have been in Jersey since then.  You have a 2 year old son by a previous relationship and now you have a very young daughter by your current relationship with your Jersey born girlfriend.  Your mother also lives here.   If this had been your first offence then, for the same reasons as in relation to Mr De Freitas, we would not have made a recommendation but the distinguishing factor in your case is that you have been warned before.  You were written to after your French conviction on behalf of the Lieutenant Governor, this was as recently as the end of June of last year and you were expressly told that should you re-offend in any way, you would be liable to be deported.  You have now re-offended.  Warnings mean what they say and therefore we are going to recommend deportation; we do not regard it as being disproportionate in your case given the previous warning that you had. 

Authorities

Rimmer -v- AG [2001] JRC 148.

Shahnowaz -v- AG [2007] JLR 221.

AG -v- De Gouveia [2003] JRC 113.

R -v- Nazari (1980) 3 All ER 880.

Camacho -v- AG [2007] JCA 145.

AG -v- Atunes, Saraiva and Viveiros [2003] JLR 144.

AG -v- De Carvalho [2007] JRC 051.

AG -v- Abreu [2007] JLR N. 32

AG -v- Abreu [2007] JRC 081.