Jersey Unreported Judgments

[2009]JRC197

ROYAL COURT

(Samedi Division)

12^th October 2009

The Attorney General

-v-

Victor Damasceno Figuera Fernandes

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 21^st August, 2009, following guilty pleas to the following charges:

Age:  25.

Plea: Guilty.

Details of Offence:

The defendant's home was searched by police on 20^th April, 2009.  He was found to have 81 fake ecstasy tablets and the proceeds (£90) of the sale of nine of those tablets (£10 each).  The defendant admitted in interview that he thought these were real ecstasy tablets and had sold nine such tablets with that belief (Count 1).

Prior to acquiring these fake tablets, the defendant had sold 330 real ecstasy tablets (Count 2).  Each tablet was acquired for £6 and then sold for £10, making a profit of £4 on each tablet.

The police found a handwritten list of names in the flat.  Numbers in denominations of ten were written next to the names.  The Prosecution say that this was a list of customers to whom the defendant had sold ecstasy tablets for £10 each.  Also in the flat was a bundle of cash (£3,300), found in a Jean Paul Gautier Cologne container.  The cash consisted of £20 and £10 notes, and represents the proceeds of the 330 tablets.

Finally, a personal amount of cannabis was recovered (Count 3). 

Details of Mitigation:

Guilty plea, good character, good employment record, supportive family, co-operative in interview.

Previous Convictions:

None.

Conclusions:

Starting point 8½ years' imprisonment.

Total:  4½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Confiscation of cash seized £3,390.

Recommendation for deportation sought.

Sentence and Observations of Court:

Total:  3 years' imprisonment.

Forfeiture and destruction of drugs ordered.

No recommendation for deportation made.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to supplying 330 Ecstasy tablets and acquiring a further 90 fake tablets, of which he sold nine and intended to sell the rest thinking them to be real.  The police found a handwritten list of names in his flat with denominations of tens against the names which the Crown say was his list of customers.  Also found was £3,300 in cash representing the proceeds of sale of those 330 tablets.

2.        The defendant is a man of good character for the purposes of sentencing and has been in regular employment.  However he was using the sale of Ecstasy to top up his income.  Bonnar and Noon-v-AG 2001/212 indicates a 7 to 9 year starting point for 1-500 tablets.   The defendant sold or intended to sell 420 tablets and so the Crown have taken a starting point of 8½ years.  Allowing for mitigation, the Crown have moved for a total of sentence of 4½ years' imprisonment.  The defence submit that taking into account the defendant's involvement in drug trafficking 8½ years is too high a starting point and we agree.  We assess the starting point at 8 years. 

3.        We have given very careful consideration to the mitigation in this case which we agree is extensive.  The defendant has pleaded guilty; he has to a large extent written his own Indictment; he has the benefit of residual youth; he has a good employment record and an offer of work awaits him; he is of good character; he has good references which we have read and is assessed at a low risk of re-offending; furthermore he clearly has the support of his family many of whom are here today.

4.        However, we regard these offences as being too serious to justify a non-custodial outcome.  The defendant was dealing commercially in Class A drugs.  Drug taking is an enormous problem in our community and he played an important role in the distribution chain albeit within a limited circle.  Anyone tempted to deal commercially in drugs must understand that he or she will be likely to lose their liberty.  However, we think that the mitigation here is substantial and in particular the role that the defendant played and his honesty in helping to write his own Indictment. 

5.        Therefore, Mr Fernandes, you are sentenced as follows:- on count 1 you are sentenced to 1 year's imprisonment, on count 2 you are sentenced to 3 years' imprisonment, concurrent.  On count 3 you are sentenced to 1 month's imprisonment, concurrent.  That makes a total of 3 years' imprisonment. 

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

7.        Turning to the issue of deportation, the first part of the test is whether the defendant's continued presence would be detrimental to the Island of Jersey.  In support of such a finding is the fact that he has been involved in dealing commercially in Class A drugs as we have already said, and that he was a drug user.  However, as against that, he is a good worker; he is somebody who has contributed to the Island in that way and he has work awaiting him; and we have seen the references from his previous employers.  He has been assessed at a low risk of re-offending and is now drugs free.  We note in particular that he was co-operative and honest with the police when interviewed and has strong family support.  We therefore conclude that the first test is not met.  Even if it was clear that the first test was met the Jurats are quite clear that the second test would not be met and that in the circumstances of this defendant and his family, deportation would be disproportionate.  We are not therefore going to recommend deportation.

Authorities

Bonnar and Noon-v-AG 2001/212.

Camacho-v-AG [2007] JCA 145.