Jersey Unreported Judgments

Drugs - Deportation hearing.

[2011]JRC224

Royal Court

(Samedi)

24 November 2011

The Attorney General

-v-

Rodolfo Silva Vieira

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

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is the third occasion on which Mr Vieira has been convicted in this Island of offences relating to the importation of heroin and in one case of cocaine.  It is the first occasion on which the Crown have moved for deportation.  Perhaps surprisingly, it is the first occasion on which Mr Vieira was sentenced to a custodial sentence, namely 4 years' imprisonment.  The circumstances of the latest offence are set out in the preliminary information prepared by the Crown and to be found in the report of September 16^th AG-v-Alves Vieira and Vieira [2011] JRC 179B. 

2.        As we indicated in the sentencing remarks in relation to the co-accused Mr Alves, we apply the case of Camacho-v-AG [2007] JCA 145 in the Court of Appeal in 2007 which sets out the rules which the Court must apply when considering the issue of a recommendation for deportation.  We take first the issue of whether the offence is such that Mr Vieira's continued presence in the Island is so detrimental to the Island that deportation should be recommended, subject to the second question which we will shortly consider.  And in that context we note that Camacho paid particular attention to the English Court of Appeal decision in R-v-Nazari [1980] 2 Cr. App. R. (S) 84 and looking at paragraph 41 of the decision in Camacho the Court of Appeal said this:-

"The first limb of the Nazari test has seldom given rise to difficulty.  The continued presence of the offender being "to the public detriment" and other formulations such as "Not in the public interest" or "not conducive to the public good" have been applied in England broadly in line with the dictum of Judge LJ in N (Kenya)-v-Secretary of the Home Department [2004] EWCA Civ 1094 that "[t]he "public good" and the "public interest" are wide-ranging but undefined concepts.  In my judgment ...broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged.  They include an element of deterrence ... so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation."

As we said in the case of Mr Alves, we have no doubt that this part of the test is satisfied and that is so on each of the grounds of social cohesion, of public confidence in the administration of immigration controls and the need for an element of deterrence to ensure that people understand that one of the consequences of serious crime may well be deportation.

3.        We come now to the second part of the test.  Against the interests of the community we have to balance the human rights of both the offender and others not before the Court.  Apart from the interests of Mr Vieira himself, we need to consider the interests of his estranged wife Mrs Vieira, his stepson, and his two young children.  In relation to the children the factual position, as presented to us by Advocate Pearmain for Mr Vieira, is that on the 4^th November this year there was a hearing before the Registrar of the Family Division in connection with a shared residence application where it was ordered that the stepson and the eldest child should have shared residence with the maternal grandmother and the mother.  And the order was that the split of time between residence with the maternal grandmother and with the mother would be a matter to be agreed between those parties.  On the same day, the Registrar considered also a question of contact between Mr Vieira and his own children.  The younger child is clearly too young to have telephone contact and the order that was then made was that Mr Vieira would have the ability to telephone his eldest child three times a week. There is to be a case review hearing on 1^st December in respect of the application for interim contact.  A welfare report is going to be provided by the JFCAS officer and copies of the child protection conference minutes are going to be provided.  In addition by the 9^th November a joint letter of instruction was to be sent to a consultant child psychologist to provide a report on the emotional health of the two younger children, to include the impact of contact with their father. 

4.        Mrs Pearmain argues that either we should make no order in relation to the recommendation for deportation or we should adjourn until the Family Court has made a decision.  The argument is that we have to consider the various matters which the Family Court will have to consider and therefore it is right to wait until we have all the information which the Family Court will have. 

5.        After consideration, we have rejected the request that we should adjourn.  The Family Court is only considering questions of contact in the context of what is in the best interests of the children.  The fact that this Court makes a recommendation for deportation does not prevent that consideration of contact taking place.  Secondly, if the Family Court makes an order and if contact takes place, then at the time the Lieutenant-Governor comes to consider the recommendation, he will be able to have regard to all the relevant material at that time and determine where the balance lies.  Thirdly, we accept the argument of the Crown that the Registrar and the Court are considering different matters.  We are to have regard to Convention rights for the purposes of our consideration of the recommendation (see the cases of Camacho, which I have mentioned and also the case of AG-v-Gouveia [2009] JCA 098) but of its nature that is an assessment of the position as we now have it, which on the face of it includes an assumption that on his release, Mr Vieira would have contact with his children if he is not deported. 

6.        We now come to consider the Convention rights of all the persons who might be affected by an order recommending deportation.  The first one is Mrs Vieira who has written a letter which has been put before us; she says that she remains neutral but she points out that as far as she is concerned it is in the best interests of herself and her eldest son, who is Mr Vieira's stepson, that Mr Vieira should be deported.  We have also noted that while he has been in custody since September, Mrs Vieira has not taken Mr Vieira's stepson to the prison to visit him.  We are satisfied that that set of rights does not outweigh the interests of the community.  We have been a long time considering the rights of Mr Vieira in particular in connection with his two children and indeed their rights.  In that context we have regard to these factors: first of all the youngest child is very young and has, as yet, had no opportunities, substantially, to bond with his father while he is in prison.  Secondly, in relation to both children it can be said that the father is not a good role model.  We note that the social enquiry report assesses Mr Vieira as having a high level of risk of re-offending.  Thirdly, we have looked at the report of Mr Gafoor of the Alcohol and Drugs Service and note his conclusions at paragraph 4 on page 4 of his report where he says:-

"From my assessment, Mr Vieira has limited insight into the adverse consequences of his drug use.  His claim of being a 'good' father is clearly at variance with his continued offending and involvement in the drug scene."

7.        We note also that Mr Vieira has a supportive family in Madeira.  In principle the children, particularly as they get older, can have contact with him in Madeira, if that is agreed, or were to be ordered by the Family Court.  It does happen from time to time that contact with parents who move abroad of their own volition takes place perfectly adequately and can work and we have noted also from paragraph 2 of the social enquiry report that Mr Vieira took his family to Funchal in October 2009 where they visited his father.  We have also had some regard to the uncertain work record, if I can put it in that way, over the last two years as well as to the good work record in the years from 2005 to 2009 and certainly the work record over the last two years suggests that the drug addiction has increasingly been causing problems. 

8.        Turning next to Mr Vieira's position, we have had regard to his Article 8 rights to respect for private and family life.  He has been in Jersey for some years but at least two of the anchors which existed for him here have gone because they no longer include his mother or, as has been clear from her letter, his wife.  So in effect it is a question of his rights generally and of course also linked in particular to those of his two children.  We have considered those carefully in the light of the facts as mentioned and in the light of one further factor.  The report of Mr Gafoor on the wife, Mrs Vieira, suggested and I quote:-

"She is a passive young woman whose efforts to overcome her drug problem have been overcome by a forceful husband."

Now if that is true then Mr Vieira's continued presence puts the mother at increased risk of heroin relapse and if that happened there is an increased risk of her losing the care of her children on a public law children's application and that too goes into the balance as to what is the right course to follow in connection with this very difficult case. 

9.        Having regard to all these factors, we consider that neither Mr Vieira's Convention rights nor his younger children's Convention rights affect the balance and, accordingly, we make the recommendation for deportation as requested by the Crown. 

Authorities

AG-v-Alves Vieira and Vieira [2011] JRC 179B.

Camacho-v-AG [2007] JCA 145.

R-v-Nazari [1980] 2 Cr. App. R. (S) 84.

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