Jersey Unreported Judgments

[2011]JRC020

ROYAL COURT

(Samedi Division)

24^th January 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle, Morgan, Liddiard, Marett-Crosby, Nicolle and Le Brocq.

The Attorney General

-v-

Luis Miguel Henriques Dos Santos

Joaquim Francesco Fernandes Castro Ferro

Sentencing by the Superior Number of the Royal Court, after conviction at trial of Ferro on Count 1 by the Inferior Number on 17^th November, 2010, and guilty pleas to the remaining Counts by Dos Santos and Ferro to the following charges:

Luis Miguel Henriques Dos Santos

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:

Count 1

In September 2009, Dos Santos booked return tickets for both Ferro and him to travel to St Malo from Jersey.  Two days later he collected Ferro and drove in his Subaru down to the harbour so that they could travel as planned.  Once in France the two men immediately drove down to Madrid in Spain. 

Count 2

In February 2009, Ferro was arrested by police officers in the street.  When searched a personal amount of cannabis weighing 4.94 grams was located in his pocket.  He was released pending further enquiries but subsequent attempts to locate him at the address that he had provided were unsuccessful. 

On the outskirts of Madrid they collected a total of 77.3 grams of heroin with a local street value in the region of £77,300.  The local wholesale value of the said heroin is between £23,190 and £38,650.  They then drove back to St Malo where they stayed overnight before catching the ferry home the next morning.  On the ferry they did not associate with one another and in order to further minimise the risk of getting caught, Ferro disembarked as a foot passenger in Jersey whereas Dos Santos drove the car off the boat. 

Whilst Ferro was allowed entry, Dos Santos was stopped as he drove through customs.  He told the officer that he had nothing to declare and said that he had just attended a cousin's wedding.  He did not mention Ferro.  He admitted that he may have smoked a cannabis joint whilst he was away, and that it might have also contained cocaine.  He was searched and a hotel receipt was found for the Hotel Anne De Bretagne in St Malo,   showing an overnight stay for the previous night for two persons.  During the search of his car the heroin was found hidden in voids behind the dashboard and centre console.  It was wrapped in socks belonging to Dos Santos.  A business card on which Ferro's name and mobile telephone number was also found, together with a "Tom-Tom" GPS device. 

During interview Dos Santos admitted that he had travelled to France with Ferro but said that they had driven to a place near Bordeaux, where Ferro had had a meeting with unknown persons.  He alleged that Ferro had given him a personal amount of heroin and cocaine to use, and that they had returned to St Malo via Rennes.  He denied knowing about the heroin.  He was charged and reserved his plea, before being remanded in custody. 

Ferro was then arrested.  During a search of his home address officers located a small pocket notebook, inside of which he had handwritten a telephone number below the words "Diana plus hotele".  Subsequent enquiries revealed that the only "Diana Plus Hotel" with that contact telephone number was located on the outskirts of Madrid in Spain.  During interview Ferro admitted that he had travelled to France with Dos Santos but said that on arrival Dos Santos had driven immediately into St Malo where he had parked inside the walled town.  He then said that they had gone for a drink and on returning to Dos Santos' vehicle, they had lost sight of each other.  He claimed not to have seen Dos Santos again until the return trip.  Ferro was released pending further enquiries, and in the meantime Dos Santos was committed to the Royal Court. 

Following Ferro's initial interview the sat-nav seized from Dos Santos' car was analysed.  The extended data showed that the device had in fact been to the outskirts of Madrid approximately 100 metres away from the aforesaid "Diana Plus Hotel".  Enquiries were also made at the Road Traffic Offence Database in France, and several digital photographs identifying Dos Santos' vehicle, driving on RN10 towards the Spanish border on 27^th September, 2009, were recovered.  The photos showed Dos Santos and Ferro in the car. 

Ferro was re-arrested and was re-interviewed.  He initially maintained his original story.  However, when presented with the photographs, he eventually agreed that he was shown in the passenger seat and he conceded that he had lied in the earlier interview.  He nevertheless continued to deny any involvement with the importation of the heroin.  Ferro was charged and granted conditional bail.  He entered a not guilty plea to the importation, but admitted the earlier simple possession of cannabis. 

Dos Santos subsequently provided a written prosecution statement in which he confirmed that prior to the trip he had been approached by Ferro, who had offered to pay him to help bring back the drugs.  He said that they had driven to Spain at Ferro's request and, once in Madrid, that Ferro had sourced, packaged and hidden the heroin in the Subaru.  Dos Santos admitted driving the drugs back to Jersey. 

In November 2010, an Inferior Number trial took place in relation to Ferro.  During that trial, Dos Santos gave evidence for the Prosecution.  Ferro chose not to give evidence.  At the conclusion of the trial, the Learned Jurats returned a guilty verdict against Ferro. 

Details of Mitigation:

Guilty pleas; co-operation generally; previous good character; assessed as being at low risk of re-offending.  Lengthy period on remand in custody pending trial of Ferro.  Most significant was the fact that he gave a prosecution statement against his co-accused and also live evidence at Ferro's trial. 

Previous Convictions:

None.

Conclusions:

Count 1:

2 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Conclusions granted. 

Joaquim Francesco Fernandes Castro Ferro

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:  41.

Plea: Guilty to Count 2.  Not guilty to Count 1 and found guilty at trial dated 17^th November, 2010.

Details of Offence:

See Dos Santos above. 

Details of Mitigation:

No meaningful mitigation. 

Previous Convictions:

Two local convictions comprising 7 offences, including the importation of a personal amount of heroin in 2005.  French Ministry of Justice records also show that he was later imprisoned for 3 months in France in 2005 for the illegal importation, acquisition, transport, possession and use of narcotics. 

Conclusions:

Count 1:	10 years' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.

Total:  10 years' imprisonment. 

Forfeiture and destruction of drugs sought. 

Recommendation for deportation sought. 

Sentence and Observations of Court:

Count 1:	Starting point 10 years' imprisonment.  9 years' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.

Total:  9 years' imprisonment. 

Forfeiture and destruction of drugs ordered. 

Recommendation for deportation made. 

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

Advocate D. V. Blackmore for Dos Santos.

Advocate D. Gilbert for Ferro.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Dos Santos, Mr Ferro, this was a carefully planned importation of 77.3 grams of heroin with a wholesale value of between £23,000 and £38,650 and a local street value of £77,300.  It involved a car trip to France and/or Spain where the drugs were obtained and the hiding of these drugs in the car when it was brought back to Jersey. 

2.        Mr Ferro, you pleaded not guilty but were convicted after a trial in November last year.  Mr Dos Santos, you pleaded guilty on Indictment and you gave evidence against Mr Ferro and were reasonably co-operative with the Police on investigation. 

3.        This was a serious crime.  The importation of a commercial amount of heroin attracts a custodial sentence, other than in truly exceptional circumstances.  The Court now applies the Court of Appeal guideline case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373. 

4.        We have considered carefully everything that has been said to us but we think in the circumstances it is right to treat the accused in the same way as far as the starting point is concerned.  Both were closely involved in different parts of the transaction.  Having regard to the quantity of drugs involved we take a starting point of 10 years.  In accordance with the guideline case of Rimmer we now look at the personal mitigation which is available to you both. 

5.        Mr Dos Santos, we have taken into account your guilty plea, your absence of relevant convictions, your good record, the references which you have put before the Court, indeed all the documents before the Court including the background report, and we think the Crown's conclusions are correct and you are sentenced to 2 years' imprisonment. 

6.        Mr Ferro, you chose to defend the case and plead not guilty and so the consequence is that you are not entitled to the credit for a guilty plea and you have previous drugs convictions.  As a result there is a limited amount of mitigation which is available to you and the sentence of this Court is one of 9 years' imprisonment.  We give you some credit for mitigation other than the mitigation which would be available for a guilty plea and for good character which you do not have. 

7.        I want to say something about disparity because that is a matter which the Court has considered.  The Crown says that it would have moved for 5 years' imprisonment against Mr Dos Santos but for the fact that he not only made a statement to the Police, but then gave evidence in open Court.  We did take that factor very much into consideration in the sentence imposed on Mr Dos Santos.  It is well known that it is a courageous decision to give evidence against a co-accused in a drugs case and there is much authority to that effect cited in the Crown's conclusions before us today and to which we have had regard.  When one therefore compares the sentence which might have been imposed on Mr Dos Santos had he not given evidence of 5 years' imprisonment with the 9 years' imprisonment which Mr Ferro is getting, the difference is easily explained by the lack of guilty plea and by the different record.  So we think that, the public looking objectively at these sentences will not see any disparity which is not legitimate and reasonable. 

8.        I come next to the question of deportation.  The Crown does not move for any deportation recommendation as far as Mr Dos Santos is concerned and in the circumstances we are not going to make any recommendation today against him.  But, Mr Dos Santos, you should be aware that this offence is an extremely serious offence and if there is any re-offending, especially of this kind, it is very unlikely indeed that a deportation recommendation would be avoided next time. 

9.        Mr Ferro, we have been asked by the Crown to impose a recommendation for deportation in your case and we apply the rules which have been set down in the Court of Appeal in the case of Camacho-v-AG [2007] JCA 145 and De Gouveia-v-AG [2009] JCA 098.  The first question is whether your continued presence in Jersey would be detrimental to the community.  The Court is entirely satisfied that a person who commits the offence of importing Class A drugs into this Island is a person whose continued presence in Jersey is detrimental to our community.  We then are required to give consideration to the Human Rights Convention interests, which you and others have, to decide whether those outweigh the detriment which your continued presence would have to the community.  Any consideration of Human Rights Convention interests today in respect of a person who, if he is to be deported, will not be the subject of consideration by His Excellency the Lieutenant-Governor for some six years, may be of limited usefulness, but we are charged by the Court of Appeal to conduct that exercise.  At least this Court has a good understanding of the facts which form the basis of the offending and we can make a reasonable assessment of the circumstances which you and those close to you whose convention rights are engaged, will face when you are released from custody.  We are told that you came to Jersey in 1998 and apart from a year period between 2005 and 2008, you have lived here.  That, therefore, is a period of some nine or ten years which goes into the balance; but we recognise that you have spent more time away from Jersey than you have here.  We also recognise that members of your family, your son, even your daughter, and your father are living outside the Island.  In the circumstances as far as you are concerned, the Court has no doubt that your convention interests do not outweigh the detriment which your continued presence in Jersey causes to the community. 

10.      We have received a letter from your girlfriend in which she says that you have been her partner for almost two years; during this time she has found you to be hard-working, caring and always ready to help and that you have been very good to her son who we understand to be 15 years old.  We have regard to the fact that by the time you are out of custody that 15 year old child will be an adult.  While we have had regard to the convention interests of both your girlfriend and her son, we do not think that in the circumstances, the balance prevents or should prevent us from making a recommendation for your deportation when you have served your sentence and the Court accordingly makes that recommendation. 

11.      The Court also orders the forfeiture and destruction of the drugs. 

12.      That leaves over, Mr Ferro, Count 1 on the Indictment which is the possession of a small amount of cannabis and in accordance with the Crown's conclusions you are sentenced on that Count to 2 weeks' imprisonment which will be served concurrently, so the total sentence is 9 years' imprisonment. 

Authorities

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

Camacho-v-AG [2007] JCA 145.

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

AG-v-La Pavoux & Baumgartner [2003] JRC 075.

AG-v-Durkin & Ors [2004] JRC 163.

AG-v-Hume & Ors [2005] JRC 051.