Jersey Unreported Judgments

[2009]JRC154

ROYAL COURT

(Samedi Division)

4^th August 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner and Jurats Tibbo, Le Breton, King, Morgan and Liddiard.

The Attorney General

-v-

Brian John Le Poidevin

Antonio Davide Ferreira Do Nascimento

Martinho Claudio Gomes Henriques

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 12^th June 2009, following guilty pleas to the following charges:

Brian John Le Poidevin

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 1).

Age:  58.

Plea: Guilty.

Details of Offence:

In December 2008, the three defendants imported 96 grams of heroin from France.  The heroin was hidden in the heels of a pair of shoes.  Henriques organised the deal through his contact 'Victor' in France.  Do Nascimento and Le Poidevin, who were in a relationship, acted as the couriers.  They travelled to France in order to collect the drugs and return them to the Island.  The drugs had a wholesale value of £19,400 and a street value of £97,000.

Henriques and Le Poidevin met at a café on 27^th December, 2008, at around lunchtime.  They discussed the planned importation.  Le Poidevin then met with Do Nascimento at the harbour and the pair took the evening ferry to St Malo where they stayed the night.  The following morning, 28^th December, Le Poidevin met with Victor outside a restaurant in St Malo.  Victor provided Le Poidevin with the shoes which contained the heroin.  Le Poidevin and Do Nascimento returned by ferry later that day.  Do Nascimento wore the shoes as the pair disembarked from the boat but all three defendants were arrested shortly thereafter.  Henriques had used a mobile telephone to stay in touch with both Victor and Le Poidevin during the two day period.

Details of Mitigation:

Guilty plea albeit at Plea and Directions hearing.  First time offender, previously led respectable life which had taken a downturn since divorce in 2006.  Good character.

Previous Convictions:

None.

Conclusions:

Count 1:

Starting point 9 years.  5 years' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The Court noted that the defendants had all advanced different stories in an attempt to minimise their involvement in the importation.  The Court accepted the Crown's starting points for all three defendants.  For Le Poidevin the Court concluded that  4 years was the appropriate sentence.

Count 1:

4 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Antonio Davide Ferreira Do Nascimento

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 1).

Age:  34.

Plea: Guilty.

Details of Offence:

See Le Poidevin above.

Details of Mitigation:

Guilty plea.  Deprived upbringing and limited education.  Heroin addict.

Previous Convictions:

Possession of heroin in Madeira.

Conclusions:

Count 1:

Starting point 9 years.  4 years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

See Le Poidevin above.

Conclusions granted.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation made.

Martinho Claudio Gomes Henriques

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 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  26.

Plea: Guilty.

Details of Offence:

See Le Poidevin above.

Details of Mitigation:

Guilty plea.  Two year old daughter.  Heroin addict.

Previous Convictions:

Possession of cannabis(fine) and grave and criminal assault (community service).

Conclusions:

Count 1:	Starting point 11 years.  6 years' imprisonment.
Count 2:	2 months' imprisonment, concurrent.

Total:  6 years' imprisonment.

Confiscation Order in the sum of £2,480 plus interest accrued sought.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

See Le Poidevin above.

Conclusions granted.

Confiscation order in the sum of £2,480 plus interest accrued granted.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation ordered.

H. Sharp, Esq., Crown Advocate.

Advocate I. C. Jones for Le Poidevin.

Advocate S. A. Pearmain for Do Nascimento.

Advocate C. M. Fogarty for Henriques.

JUDGMENT

THE commissioner:

1.        The factual background to this offending is very simple.  Henriques arranged for some 96 grams of heroin to be acquired from a contact in France.  Do Nascimento and Le Poidevin went to St. Malo and brought the heroin back to Jersey secreted in the heels of a pair of shoes which Le Poidevin had collected and which Do Nascimento was wearing.  Henriques is also to be sentenced for the possession of a small quantity of heroin for his personal use.  Henriques and Do Nascimento are drug addicts.  Le Poidevin, who is 58 and older than his co-accused, has never misused controlled drugs.  The heroin had a street value of £97,000.  Different stories have been given by each of the defendants all of whom have tried to diminish their own personal involvement.  We turn to the individuals.

2.        Henriques is aged 26 and he is, as we have said, a heroin addict and was the organiser of this importation.  The Crown Advocate has regarded him as higher up the chain of responsibility and has, having regard to the guideline case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373, taken a starting point of 11 years' imprisonment.  We agree that that is the appropriate starting point for Henriques.  He has previous convictions including a conviction for possession of cannabis.  He has a partner with whom he has been living for four years and by whom he has a two year old child.

3.        In mitigation he admitted his involvement and he has pleaded guilty to the Indictment.  We think that the Crown Advocate has given full and proper consideration to the mitigation available to Henriques.

4.        The conclusions of the Crown Advocate are granted and you are sentenced on Count 1 to 6 years' imprisonment and on Count 2 to 2 months' imprisonment concurrent making a total of 6 years' imprisonment.

5.        We turn to the question of deportation.  We have to apply the usual two-stage test.  The first stage is to ask ourselves whether the continued presence of Henriques is detrimental to the interests of this community.  Henriques is a heroin addict.  Prior to his arrest he had been unemployed and had difficulty in finding work.  Due to his drug addiction he had been signed off by his doctor as sick and he was receiving sickness benefit.  We have no doubt that Henriques' continued presence in Jersey is not in the interests of this community.  We turn to the second stage which is to ask ourselves whether there are Human Rights factors affecting him and others which counterbalance the desirability that he should be deported.  Henriques has a partner and a two year old child who was born in the Island.  His partner has a four year old child from an earlier relationship.  His partner was born in Madeira although her family has now settled in Jersey.  We have balanced the different interests but we think that the balance tips in favour of deportation.  We will therefore recommend to the Lieutenant-Governor that Henriques be deported from Jersey at the conclusion of his sentence.

6.        We turn now to Le Poidevin who is a local man.  He admitted to agreeing to go to France at Henriques request to meet a man allegedly called Victor.  He collected from Victor a pair of old shoes in which the heroin was secreted.

7.        His counsel asserted to us that he was extremely naïve.  We think that the only reasonable inference to be drawn from the facts is that Le Poidevin knew that the shoes contained drugs; whether he knew that they contained heroin is immaterial.  He has in any event pleaded guilty to being concerned in the importation of this large quantity of heroin into Jersey.  The Crown Advocate has taken a starting point of 9 years' imprisonment and we think that that is the correct starting point.

8.        In mitigation Le Poidevin is to be treated for these purposes as a first offender.  He has pleaded guilty to the Indictment.  His marriage broke down in 2006 and things appear to have gone downhill for him since then.

9.        Le Poidevin, we have read your letter very carefully and taken note of everything that you have said in it.  You went into this enterprise with your eyes open even if your motive is unclear.  We have felt able to treat you in the same way as your co-accused, Do Nascimento, and we are going to impose a sentence on the single Count on the Indictment with which you are concerned of 4 years' imprisonment.

10.      We turn finally to Do Nascimento.  He is aged 34, he has been a heroin addict for some time although he has recently apparently tested free of drugs at the prison.  The Crown Advocate has taken a starting point of 9 years' imprisonment on the basis that he was, with Le Poidevin, involved to a lesser extent than Henriques.  Do Nascimento wore the shoes in which the heroin was concealed when it was imported into Jersey.  We think that the starting point of 9 years is correct.

11.      In mitigation he has pleaded guilty to the indictment.  We think that the Crown Advocate has made the proper allowances for the mitigating factors. 

12.      We have taken account of everything which your counsel has said on your behalf and the sentence of the Court is that you will go to prison for 4 years. 

13.      We turn now to the question of deportation and we have asked ourselves the same two questions in relation to Do Nascimento.  We have no doubt that his continued presence in the Island is not in the interests of this community.  He is a heroin addict.  So far as Human Rights considerations are concerned, there are no matters which might suggest that the balance tips against deportation.  He has not established any permanent presence in the Island and there are no other people whose interests would be adversely affected to such an extent that we should not order deportation.  We will accordingly recommend to the Lieutenant-Governor that Do Nascimento be deported from the Island at the conclusion of his sentence. 

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

Authorities

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