Jersey Unreported Judgments

[2010]JRC151C

ROYAL COURT

(Samedi Division)

19^th August 2010

The Attorney General

-v-

Paulo Dinarte Martins Cardoso

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

Age:  23.

Plea: Guilty.

Details of Offence:

Customs Officers intercepted two pieces of outgoing mail addressed to a woman at an Oxford address.  The first contained £2,000 and the second £1,500.  On both packages the sender's address was the Defendant's home address and the sender's name was illegible.  The packages were returned to the post.

Ten days later on 19^th March, 2010, Customs Officers intercepted an A4 envelope addressed to Mrs R Lucas at the Defendant's address.  The package was x-rayed which suggested it contained drugs.  The package was opened and found to contain 26.4g of heroin with an estimated street value of £25,400.

A dummy package was prepared and placed in the post to be delivered to the Defendant's address by a Customs Officer in postal uniform.  After the Defendant had signed for the package a drug warrant was immediately executed and the package was retrieved from the Defendant's bedroom.  A piece of cannabis weighing 450mg was also found.  The Defendant was arrested.

In interview the Defendant admitted to using heroin, cannabis and ecstasy.  He said that from time to time he would sign for packages addressed to others and would keep them aside.

He admitted posting the two packages to the Oxford address, saying that he had been driven to two separate Post Offices in order to do so.  He claimed to be unaware of the contents and said that he had posted them as a favour to an unnamed friend.

Breach of Binding Over Order

These offences placed him in breach of a binding over order imposed by the Magistrate on 20^th November, 2009.  Furthermore prior to the offences on the Indictment the Probation Service had requested that the Defendant be referred back to the Court as he had failed to comply with the orders.  In particular he had failed to complete a detox programme and repeatedly failed to attend meetings with his probation officer.

Details of Mitigation:

Residual youth, on remand for 5 months and had responded positively to his time in custody.  Has stopped taking heroin - all random drug tests have been negative.

Previous Convictions:

Four convictions for six offences including three drug offences.

Conclusions:

Starting point 8 years' imprisonment. 

Breach of Binding Over Order:  2 weeks' imprisonment, consecutive. 

Total:  4 years' and 2 weeks' imprisonment. 

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought. 

Sentence and Observations of Court:

Starting point 8 years' imprisonment. 

Breach of Binding Over Order:  2 weeks' imprisonment, concurrent. 

Total:  4 years' imprisonment. 

Forfeiture and destruction of drugs ordered. 

No recommendation for deportation made. 

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

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on two counts, one of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin and the second being the possession of cannabis resin.  It is quite plain that the first of those counts is the serious one and as you will by now know and should have known earlier, the Court's policy in relation to sentencing for drug trafficking offences in category A drugs has been well settled and we are to apply that policy in relation to you today. 

2.        The Rimmer guidelines suggest that we must first fix on the starting point.  We take the Crown's conclusions as being correct in that respect and we therefore do fix on the starting point of 8 years which the Crown took. 

3.        We note all that your counsel has said in relation to mitigation, in particular we have taken into account the fact that you were 22 at the time of the offence and I should say straight away that in relation to that question of youth it carries very marginal significance because you were an adult, you were over 21 years old, you should have known better.  You had committed previous offences so you had been, as it were, in Court previously and therefore should have known not to commit these offences.  But the more important parts of the mitigation as far as we are concerned is we have taken into account your guilty plea, given you full credit for that, the co-operation with the police and certainly noted the references which you have passed up, indeed taken in account all the other things which your counsel has said. 

4.        Applying that mitigation in the Court's judgement, 4 years' imprisonment as the Crown concludes is the right sentence on Count 1.  As far as Count 2 is concerned the Court considers that in theory, the Crown's conclusions of 2 weeks' imprisonment consecutive, those conclusions are theoretically correct but, as an act of mercy and in the round, the Court is going to apply that sentence of 2 weeks concurrently, so you will serve a total of 4 years' imprisonment on the Indictment.  The breach of the binding over order is included in this sentence which has been passed. 

5.        I come next to the question of the recommendation for deportation.  While one might be surprised by the decision by the Court of Appeal not to follow the English Court of Appeal decision in the R-v-Carmona [2006] 1 WLR 2264, the approach which the Royal Court must follow in deportation recommendation cases has been clearly set down by our Court of Appeal in Camacho-v-AG [2007] JLR 462 and De Gouveia-v-AG [2009] JCA 098.  Accordingly we are charged to consider whether your continued presence in Jersey would be detrimental to the community.  If we are so satisfied then we must consider the convention interests which you have and others have, including your family, and decide whether those outweigh the detriment which your continued presence would cause to the community.  We have to do that even though that exercise has very limited value because it must be carried out again by His Excellency the Lieutenant-Governor as the decision taker at the time the decision to deport would come to be made, when the circumstances of the Convention interests might be quite different.  Nonetheless that is what we are charged to do and we have done it in accordance with those authorities.  The Court is unanimous in considering that the offending is such that the first limb of the test is passed.  A person who traffics in Class A drugs is, in the Court's view, a person whose continued presence in the Island would be detrimental to the community especially so when there is a high risk of re-offending; but in the Court's view generally, unless there are exceptional circumstances, one would take the view that drug trafficking in Class A drugs leads to the conclusion that continued presence in the island is detrimental to the community.  We have then gone on to consider the second test; by a majority the Court finds that it would not be proportionate to recommend deportation on this case.  That majority view is based upon the long period in the Island which you have had, the family references which have been passed up and the fact as your counsel said that your friends and social life, the fabric of your life to date, has been in Jersey rather than anywhere else.  And also I add that the Court has taken into account that at one point you too were a victim of somebody else's trafficking in heroin because you were introduced to it by somebody. 

6.        I have to tell you, however, that if there were to be any further re-offending by trafficking in Class A drugs, it is very unlikely that the Court would reach the same view on deportation next time.  The balance would almost certainly change, and despite all the things that go into the balance on your personal side, the fact your family is in Jersey and so on, the damage to the community in trafficking in Class A drugs is such that the Court would then almost certainly take the view that it would be right to recommend deportation. 

7.        We would like to commend the fact that you are in the enhanced wing at the present in the prison and have been drug free while you are there and I have mentioned the fact that you yourself were once the victim of somebody else trafficking in heroin by introducing you to it.  That means that you should realise the damage which your conduct causes, you should have realised it before and you certainly should realise it now.  The Court hopes that you will continue in the enhanced wing while you serve this sentence and that when you come out, having served it, that you will remember that that is indeed the position that your conduct could have led to other people being introduced to Class A drugs and making them victims as you have been, and that is one of the reasons why the balance would change on a deportation recommendation if there were to be another occasion.  I hope you understand that. 

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

Authorities

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

Camacho-v-AG [2007] JLR 462.

R-v-Carmona [2006] 1 WLR 2264.

De Gouveia-v-AG [2009] JCA 098.