Jersey Unreported Judgments

Superior Number Sentencing - drugs - possession - possession with intent to supply - Class A and C.

[2011]JRC217

Royal Court

(Samedi)

7 November 2011

The Attorney General

-v-

Roberto Gil Vieira Andrade

Sentencing by the Superior Number of the Royal Court to which the accused was remanded by the Inferior Number on 19^th August, 2011, following guilty pleas to the following charges:

Age:  31.

Plea: Guilty.

Details of Offence:

The defendant was stopped by police in the street exercising powers under Article 19(3) of the Misuse of Drugs (Jersey) Law 1978.  Found to be in possession of approximately 1 gram of heroin and £530 divided into two separate bundles.  A search of the defendant's house revealed a total of 7.49 grams of heroin hidden in a cigarette packet in a kitchen bin.  Digital scales recovered which upon analysis contained traces of diamorphine.  Two diazepam tablets were also found. 

Heroin found on him at the time of arrest (Count 1) had a total weight of 718 milligrams and had a street value of £850.  The 7.49 grams of heroin found at his home address had a street value of £7,500 with a wholesale value of between £1,200 and £2,500 (Count 2).  The two diazepam tablets were worth £2 (Count 3). 

The defendant admitted in interview that he was "minding" the 7.49 grams of heroin and for providing this service he had been given a gram of heroin for his own personal use and £500.  He accepted that his actions amounted to possession with intent to supply.  The Crown accepted his factual basis for his guilty pleas. 

The Crown took a "starting point" of 8 years' imprisonment on Count 2 and a 7 year "starting point" on Count 1. 

Details of Mitigation:

The Crown: The only mitigation of note was his guilty plea entered on Indictment and the fact that he had given an account to the police at interview which had been accepted subsequently by the Crown.  He did not have the benefit of youth or good character.  No other mitigation of substance. 

Defence: The Defence suggested a 7 year "starting point" was more appropriate on Count 2.  Was making good use of time whilst on remand and wanted to become a drug counsellor.  Guilty plea; had maintained a good relationship with his son; letter from the defendant expressing remorse and regret.  Background reports provided sufficient information that the balance was in favour of not recommending deportation because of the effect upon his son. 

Previous Convictions:

Two convictions for a total of 5 offences including concerned in the supply of heroin, possession of cannabis, ecstasy and heroin.  DIC.  For drug offences see AG-v-Andrade [2006] JRC 110.

Conclusions:

Total:  5 years' imprisonment. 

Confiscation Order in the sum of £528 sought. 

Forfeiture and destruction of the drugs sought. 

Recommendation for deportation sought. 

Sentence and Observations of Court:

Total:  4½ years' imprisonment. 

Confiscation Order in the sum of £528 made. 

Forfeiture and destruction of drugs ordered. 

Recommendation for deportation made. 

J. C. Gollop, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment containing three counts, the first is possession of heroin, the second is possession of heroin with intent to supply, and the third is possession of diazepam.  I deal first of all with Count 2 which is the most serious of the three charges. 

2.        The Court has given careful thought to the matter.  We think that first of all that we are required to sentence you and we do sentence you on the basis of the explanation which you gave through your counsel that you were minding these drugs for passing on to somebody else.  There is in some cases a difference between a minder and a street dealer, I would like to make that plain in our view, but in this case we agree with the Crown that that difference does not arise and so the matter is not material. 

3.        We have taken a starting point of 8 years' imprisonment on the application of Rimmer; we consider that the circumstances of the holding of the drugs, both the quantity and the other circumstances which are involved, justify that starting point.  Then we have looked at the mitigation which you have available to you, which to be frank, is not very much.  You have pleaded guilty and we give you credit for that; and we certainly give you credit for the remorse which you have expressed in your letter to the Court and generally.  We have had regard to all the personal circumstances which are set out in the reports. 

4.        In the event we think the right sentence is one of 4½ years' imprisonment on Count 2 and we sentence you accordingly.  On Count 1 we sentence you to 3 years' imprisonment which will be concurrent, and on Count 3, to 2 weeks' imprisonment, which will be concurrent.  So the total is 4½ years' imprisonment. 

5.        We have then gone on to consider the question of deportation.  The first part of the test is whether or not your continued presence in the Island is undesirable to the extent that it is not in the interests if the community that you should stay here.  The Court finds that that part of the test is satisfied.  There is no doubt at all that it is not in the interests of this community to have persons who have convictions for offences of this kind and particularly so where it is a second offence.  We then had to consider the second part of the test; that is the human rights requirements which you can put before us both on your own account, for your son, and for those who are close to you.  We consider that despite those interests it is right that we make a recommendation for deportation.  There are really three reasons for this.  The first is that drug trafficking is a very serious offence.  The second is that you are given a warning in 2006 and I just remind you of it.  The then Deputy Bailiff said to you:-

"As to deportation we have taken account of the mitigation that we have described and the family connection, in all the circumstances and again particularly bearing in mind the powerful mitigation we do not think it necessary to recommend your deportation on this occasion.  But again you must realise that if you re-offend when you come out then you are likely to face deportation."

That was said to you on 26^th July, 2006, and the language could not have been clearer.  And thirdly as I have said this was in fact a second conviction.  We also take into account that during the time that you are serving your sentence your child will be able to visit you in prison if the mother continues to bring him to do so and of course by the time that you are deported, if that is the Lieutenant-Governor's decision at that time, then he will be old enough to travel as a supervised but unaccompanied minor to wherever you might happen to be at that time if the relationship so justifies. 

6.        In the circumstances that is the sentence of this Court, you are sentenced to a total of 4½ years' imprisonment and there will be a recommendation for your deportation. 

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

Authorities

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

AG-v-Andrade [2006] JRC 110.

Camacho-v-AG [2007] JLR 462.