Jersey Unreported Judgments

[2011]JRC179B

Royal Court

(Samedi)

16 September 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Kerley.

The Attorney General

-v-

Roberto Alves

Rodolfo Silva Vieira

Lisa Marie Vieira

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

Roberto Alves

First Indictment

1 count of:

Conspiracy to fraudulently evade 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:  33.

Plea: Guilty.

Details of Offence:

On 5^th May, 2011, Mr Vieira booked a return flight to Gatwick which cost £165 and which left and returned that same day.  The flights left him only two hours and fifteen minutes in England.  Mr Vieira took the outbound flight but did not use the return leg.  Whilst in London he met Alves.  Both men took heroin and Mr Vieira persuaded Alves to import about 1g of heroin for him, concealed internally.  Mr Vieira booked a ticket costing £105 for Alves to travel to Jersey the following day. 

On arrival in Jersey Mr Vieira was stopped and questioned by customs officers, but Alves passed trough Border Control with the heroin (First indictment, Count 1).  Mr Vieira gave a false account of his visit to London but no drugs were found and he was released. 

Mrs Vieira, who was eight months pregnant at the time, collected both men from the Airport and they returned to the Vieira's home.  Alves had difficulty producing the drugs and so he was given a laxative by the Vieira's.  Mrs Vieira also looked on the internet for advice on enemas.  This resulted in Alves defecating on the Vieira's bathroom floor and made him very unwell.  The defendants then each took a "speedball" hit of heroin and cocaine in a syringe (Second Indictment, Count 1). 

At approximately 15:50 that afternoon Alves ran from the Vieira's home to a nearby flat where he collapsed.  He was described by witnesses as being very frightened saying "I'm going to die.  That man gave me pill".  Mr Vieira arrived and tried to drag Alves away but was prevented from doing so by the residents of the flat.  The police were called and Alves was taken to hospital where he disclosed to medical staff that he had imported drugs concealed internally and had retrieved them at the Vieira's home. 

Later that evening Mr Vieira was stopped by a police officer for a search under the Misuse of Drugs (Jersey) Law 1978.  He ran away but was taken to the ground and arrested about 200 metres away (First Indictment, Count 2).  Mrs Vieira was also arrested. 

In interview Mrs Vieira was initially uncooperative but when she was told that Alves was in intensive care she admitted that she knew that Mr Vieira had gone to London to buy a personal amount of heroin and that she had been in possession of the "speedball".  She denied knowing that the men had brought back drugs until they got home. 

Mr Vieira admitted taking £300 to London to buy drugs.  He said that he had met with Alves by chance and had asked him where he could buy drugs.  Mr Vieira conceded that he knew Alves was carrying drugs, but claimed that they were not his.  In his second interview he admitted he had conspired with Alves to import the heroin. 

Alves was interviewed following his release from hospital and made a full confession. 

Alves was assessed as being at medium risk of reoffending.  Mr and Mrs Vieira were both assessed as being at high risk of reoffending. 

Details of Mitigation:

Guilty plea (valuable as no drugs were recovered).  He was homeless and vulnerable when asked to import the drugs.  He had spent three days in hospital and had thought he was going to die from the combination of laxatives and opiate blockers. 

Previous Convictions:

29 offences including 3 drug offences.

Conclusions:

First Indictment

Count 1:

Starting point 7 years.  3½ years' imprisonment.

Confiscation Order in the sum of £150.

Recommendation for deportation sought.

Sentence and Observations of Court:

First Indictment

Count 1:

Starting point 7 years.  3 years' imprisonment.

Confiscation Order in the sum of £150 made.

Recommendation for deportation made.

Rodolfo Silva Vieira

First Indictment

1 count of:	Conspiracy to fraudulently evade 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:	Obstructing a police officer in the execution of his duty, contrary to Article 19(7)(a) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age:  32.

Plea: Guilty.

Details of Offence:

See Alves above.

Details of Mitigation:

Guilty plea (valuable as no drugs were recovered). 

Previous Convictions:

3 offences all relating to the importation of Class A drugs. 

Conclusions:

First Indictment

Count 1:	Starting point 7 years.  4 years' imprisonment.
Count 2:	2 months' imprisonment, concurrent.

Total:  4 years' imprisonment. 

Recommendation for deportation sought.

Sentence and Observations of Court:

First Indictment

Count 1:	Starting point 7 years.  4 years' imprisonment.
Count 2:	2 months' imprisonment, concurrent.

Total:  4 years' imprisonment. 

Deportation hearing adjourned for a date to be fixed with the Crown.

Lisa Marie Vieira

Second Indictment

1 count of:

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

Age:  30.

Plea: Guilty.

Details of Offence:

See Alves above.

Details of Mitigation:

Guilty plea (valuable as no drugs were recovered).  Difficult background, time already served on remand.  Mother of three children, including one born shortly after the offences. 

Previous Convictions:

60 offences including 2 relating to the importation of Class A drugs.

Conclusions:

Second Indictment

Count 1:

5 months' imprisonment.

Sentence and Observations of Court:

Second Indictment

Count 1:

110 hours' Community Service Order, equivalent to 5 months' imprisonment, plus a 12 month Probation Order together with a 12 month Treatment Order.

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

Advocate P. S. Landick for Alves.

Advocate S. A. Pearmain for R. S. Vieira.

Advocate S. M. J. Chiddicks for L. M. Vieira.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Alves, Mr Vieira and Mrs Vieira, you are here to be sentenced on an Indictment which contains as far as Mr Vieira and Mr Alves are concerned, charges of conspiracy to import heroin and as far as Mrs Vieira is concerned, possession of heroin.  Mr Vieira you are also charged with obstructing a police officer in the execution of his duty. 

2.        Although there is some uncertainty around the circumstances of the importation, and I add in the context of uncertainty, the admission of Mr Alves to the probation officer that he was going to be asked to bring in 2 grams of heroin, we are asked by the Crown to proceed on the basis that the conspiracy was to import 1 gram of heroin and it is on that basis that you are sentenced. 

3.        This case falls within the guideline case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373 and we take a 7 year starting point because that is in accordance with the directions of the Court of Appeal in that case.  Clearly the case falls at the lower end of the bands in the case of Rimmer, and it is a relatively small amount.  So we start with a custodial sentence of 7 years' imprisonment. 

4.        Mr Vieira, we have taken into account your guilty plea and letter of remorse, and we have taken into account the reference which has come from your mother.  But we have also noted that you arranged the importation; it was you who procured your co-accused Mr Alves to bring the drugs into the Island; you knew that there was a probability that your pregnant wife might take some of the heroin when you brought it back.  You do not have a good record because you have done this before.  Taking account of the guilty plea that you have entered and all the other circumstances which I have mentioned, we think the Crown's conclusions are correct and you are sentenced accordingly to 4 years' imprisonment on Count 1 and 2 months' imprisonment, concurrent on Count 2. 

5.        Mr Alves, many of the remarks which I have already made apply also to you.  Your case falls, too, within the band of Rimmer and therefore we take a starting point of 7 years' imprisonment.  You do not have a good record either, so you have very little mitigation in that respect and you have some drugs convictions as well as a poor record generally.  We take into account your guilty plea and we take into account that your role in the importation was secondary although we have to acknowledge that we have the same starting point of 7 years but nonetheless, you were what is described as a mule, a carrier, and Mr Vieira had a greater responsibility than you.  We have had regard to everything which is in the background reports.  We consider that the right sentence in your case is 3 years' imprisonment.  Accordingly you are sentenced to that period in relation to Count 1 on the Indictment.  

6.        We have also considered the question of deportation.  You have had a deportation notice served upon you and we apply the case of Camacho-v-AG [2007] JCA 145 which sets out the rules which the Court must apply when considering the issue of a recommendation for deportation.  There are two stages to be considered; the first is whether or not the offence is such that it is appropriate that we regard your continued presence in the Island as so detrimental that deportation ought to be recommended.  This offence of conspiracy to import heroin is one where we consider that test is passed.  We then go on to the second part of the test which is whether there are any personal considerations, human rights considerations which either we should take into account on your part or on the part of any family that you have in the Island.  We have noted that you have some family in Madeira; we have noted that you have some family in Jersey but, apart from a five year period which was spent here when you were aged between 19 and 24, it does not appear that over the last 7 years you have spent much time in the Island.  The family members over here whom you might call upon are adults and it is perfectly possible for them to see you outside the Island.  In the circumstances we think the balance lies clearly in favour of a recommendation for deportation and the Court makes that recommendation accordingly. 

7.        Mrs Vieira, you are charged with possession of heroin and, as I indicated to your counsel, the Court does not consider it is necessary in your case to impose a custodial sentence on that charge.  We think that the sentence which we would have considered, had it been a custodial sentence, would have been in line with the Crown's conclusions and therefore would have been 5 months' in custody, but we propose to take into account everything which is said in the background reports, the fact that you are making attempts to rehabilitate yourself, the low quantity of drugs, the time spent on remand, and your guilty plea.  Accordingly we are going to impose the sentence of 110 hours community service; the alternative would have been 5 months in custody.  We are going to put you on probation for 12 months and we attach a drug Treatment Order to that Probation Order. 

8.        You and indeed your husband, and Mr Alves must all come to recognise that your addiction to heroin, the taking of heroin is the cause of these problems and in the case of you Mr Vieira and Mr Alves, the Court hopes that your time in custody will be used sensibly, profitably, to tackle that addiction.  You Mrs Vieira, will have the opportunity of the help of the probation service in that respect.  So you are sentenced accordingly. 

Authorities

Misuse of Drugs (Jersey) Law 1978.

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

Camacho-v-AG [2007] JCA 145.

Shanowaz-v-AG [2007] JLR 221.

AG-v-Vieira & Vieira [2010] JRC 069.

AG-v-De la Haye & Kearney [1995] JLR N24a.

AG-v-Buesnel [1996] JLR 265.