Jersey Unreported Judgments

[2011]JRC029A

ROYAL COURT

(Samedi Division)

1^st February 2011

The Attorney General

-v-

Filipe Abreu Afonso

Sentencing by the Superior Number of the Royal Court, following a guilty plea to the following charge:

Age:  40.

Plea: Guilty.

Details of Offence:

At approximately 22:00 hours on Saturday 4^th September, 2010, Afonso attended Aztec House ("the Shelter") looking for somewhere to stay for the night.  Due to his behaviour, support workers suspected that he may be a drug user and that he was under the influence of drugs. When asked, Afonso stated that he was just tried.  As all rooms at the Shelter were full that night, Afonso was offered a sofa in the lounge to sleep on. 

Shortly thereafter, CCTV footage from the lounge captured Afonso crouching down beside the sofa before injecting himself around the upper thigh area.  Afonso then returned to the area beside the sofa and passed out on the floor.  By this time, Shelter support workers in the office had observed Afonso and became concerned about his behaviour and went to check he had not overdosed.  Drug taking paraphernalia was located next to Afonso and it was also noted that he appeared to be "high" as if he had "taken a hit of something".  The support workers formed the opinion that Afonso had not overdosed but carried out regular checks on him to ensure his welfare.  On a subsequent check, a small blue plastic bag was seized from beside Afonso.  It was later found to contain 5.0004 mg of heroin and had potential income of £5,000 if sold. 

Afonso was arrested and cautioned at the Shelter late that morning on suspicion of being in possession of a controlled substance.  He made no reply to the caution but denied that the blue plastic wrap was his.  He was later arrested and cautioned on suspicion of possession of a controlled substance with intent to supply.

Prior to interview, Afonso was examined by a Doctor and provided a urine sample which revealed the presence of cannabis, opiates and benzodiazepines.  During interview, he confirmed that he had been out of prison for approximately two weeks, was of no fixed abode and that the only income he had received in those two weeks was income support totalling £200.  Afonso admitted to having used heroin for about ten years, including when he was last in prison, and that he had been using heroin regularly since his release from prison.  He also admitted to having used heroin the night before whilst at the Shelter.  Afonso could not recollect from who he had bought the heroin but concluded that he must have received a greater amount than he had thought when he bought it because he knows some people well.  He denied selling drugs. 

The offence was committed less than two weeks after Afonso's release from prison having been convicted of conspiracy to import and possession of drugs for which he received a sentence of 43 months.  In the time between his release and his arrest he began using heroin again resulting in two overdoses which required hospital treatment. 

An aggravating feature of the case is the fact that Afonso abused the charitable services that the Shelter provides in choosing it as a place to use heroin.   On the night in question, the Shelter was already full but Afonso was provided with bedding and invited to use the sofa in the living room as a place to sleep. 

Details of Mitigation:

Guilty plea; remorse and letter of apology to the Court; has taken steps whilst on remand to improve his circumstances upon release. 

Previous Convictions:

Convictions for related and unrelated offences.  Previous related offences including:-

Conspiracy to import and possession of drugs in 2008; obstruction/concealment during a drugs search in 2007; possession of cannabis in 2004.

He also has a number of previous convictions for dishonesty offences which he admitted, in the Social Enquiry Report, were committed to fund his drug dependency. 

Conclusions:

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Deputy Bailiff warned Afonso that he needs to tackle his drug problem if he is to make something of his life.  In terms of sentencing, the Court adopted a starting point of 7 years (reduced from 7.5 years as suggested by the Crown) and in addition to the reduction for his guilty plea, it also gave a further reduction for the mitigation put forward on his behalf. 

As regards deportation, the Deputy Bailiff applied the test in De Gouveia, stating that Afonso's continued presence in the Island, particularly in light of this being his second drug trafficking offence, would be detrimental.  Further, that taking into account the human rights of Afonso and his son, there were no factors that outweighed his presence being detrimental. 

Forfeiture and destruction of drugs ordered. 

Recommendation for deportation made. 

A. D. Robinson, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Afonso, you are here to be sentenced having pleaded guilty to a count of possession of heroin with intent to supply, and we noted from what your counsel said that you accept entirely that you intended to supply the drug in question.  It is a pernicious drug and your apparent addiction to it, and it must be as obvious to you as it is to the Court, is something you must tackle if you are to make anything of your life. 

2.        The Court's approach to this matter is governed by the guideline case of Rimmer-v-AG [2001] JLR 373.  We take a starting point, because a custodial sentence in our view is inevitable, of 7 years' imprisonment, having regard to the relatively small amount of heroin which was involved here.  We have listened carefully to everything your counsel has said so we give a full discount for the guilty plea and take into account the other mitigating factors which he has so eloquently mentioned. 

3.        You are sentenced accordingly to 4 years' imprisonment on this Indictment to which you have pleaded guilty. 

4.        We are also asked by the Crown to consider the question of deportation and again have noted that your counsel contended that there was no arguable case that deportation should not be ordered.  We have applied the tests set down by the Court of Appeal in De Gouveia-v-AG [2009] JLR 169; we are satisfied that your continued presence in the Island in the light of the drug trafficking offence, and it is your second conviction for drug trafficking, is detrimental to the community.  And so we have now gone on to consider the second part of that test.  In the Court's view you do not have any sufficiently close connections with Jersey yourself, despite having lived here for 17 years.  We do not think that your connections with the Island are sufficient to outweigh, in the balance, the detriment which the community would suffer from having you remain here.  We have also considered the rights which your son might claim, noting that you have been away from him for about 2½ years or so whilst serving your last custodial sentence, and that he will be approximately 17 by the time that you are released on this occasion and therefore at that age he will be he will be able to visit you wherever in the world you might be.  In the circumstances, taking into account your and his rights under Article 8 of the European Convention on Human Rights, we think that in the balance the detriment to the community is such that we should recommend to His Excellency that you be deported at the end of your sentence and we so order. 

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

Authorities

Rimmer-v-AG [2001] JLR 373.

De Gouveia-v-AG [2009] JLR 169.

European Convention on Human Rights.