Jersey Unreported Judgments

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

[2012]JRC124

Royal Court

(Samedi)

28 June 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Le Cornu, Morgan, Kerley, Crill and Olsen.

The Attorney General

-v-

Muhammed Liton Miah

Mauricio De Jesus Mondim Dos Santos

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 13^th April, 2012, following guilty pleas to the following charges:

Muhammed Liton Miah

1 count of:	Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey Law 1978 (Count 1).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of drugs (Jersey) Law 1978 (Count 2).

Age:  33.

Plea: Guilty.

Details of Offence:

Miah, a heroin addict living in London, owed £10,000 to his supplier.  He therefore agreed to come to Jersey and deal heroin in order to pay off his debt.  Dos Santos, a Portuguese national who had lived in Jersey since a young age, had been addicted to heroin since the age of fifteen.  In order to fund his own habit Dos Santos would purchase the drug from Miah and supply it to his friends whilst also keeping a small amount back for himself. 

On 19^th January, 2012, Dos Santos collected monies from a syndicate of his friends and arranged to purchase heroin from Miah.  Shortly before 5 o'clock that afternoon he took a taxi to Five Oaks, went into a telephone kiosk and contacted Miah.  Miah then left his nearby flat and joined Dos Santos.  Moments later police officers in the area moved in and arrested both men.  When arrested Dos Santos was found to be in possession of a wrap containing 3.13 grams of heroin, whilst Miah was found in possession of a carrier bag containing £1,090 in cash. 

A subsequent search of Miah's flat revealed drugs paraphernalia and a further £5,180 in cash. 

In interview Dos Santos freely admitted that he had collected monies from friends and purchased heroin from Miah with the intention of supplying it to his friends on the day of his arrest, and on one previous occasion (Count 3).  

Miah admitted that he had been dealing heroin since the beginning of January, 2012 and that the money found in his room represented the proceeds.  He admitted that he had sent £11,000 back to his suppliers in England, and that he had paid off £2,800 of his drugs debt.  On indictment Miah entered a guilty plea on the basis that he had dealt a total of 35 grams of heroin to Dos Santos between the 1^st and 19^th of January, 2012, (Count 1), which included the 3.13 grams of heroin he sold to Dos Santos on the day that they were arrested (Count 2). 

Details of Mitigation:

Early guilty pleas, co-operated with the police. 

Previous Convictions:

11 previous convictions for class A drugs offences, including a sentence of 3 years' imprisonment for possession of cocaine with intent to supply. 

Conclusions:

The Crown having regard to the serious nature of the offending, the mitigating factors and the content of the reports, moved as follows:-

Starting point 10 years' imprisonment.

Count 1:	6 years' imprisonment.
Count 2:	4 years' imprisonment, concurrent.

Total: 6 years' imprisonment.

Confiscation Order sought in the sum of £6,270.

Forfeiture and destruction of drugs and paraphernalia sought.

Sentence and Observations of Court:

In relation to Miah the Court had regard for his guilty plea, his cooperation with the police and the contents of the reports. 

Starting point 9 years' imprisonment.

Count 1:	5½ years' imprisonment.
Count 2:	4 years' imprisonment, concurrent.

Total: 5½ years' imprisonment.

Confiscation Order made in the sum of £6,270.

Forfeiture and destruction of drugs and paraphernalia ordered.

Mauricio De Jesus Mondim Dos Santos

1 count of:

Possession of a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  27.

Plea: Guilty.

Details of Offence:

See Miah above. 

Details of Mitigation:

Guilty plea.

Previous Convictions:

28 previous convictions for inter alia larceny, grave and criminal assault, affray, public order, possession of an offensive weapon.  7 drugs offences including a Royal Court conviction in 2006 for supplying heroin. 

Conclusions:

The Crown having regard to the serious nature of the offending, the mitigating factors and the content of the reports, moved as follows:-

Starting point 7 years' imprisonment.

Count 3:

4 years' imprisonment.

Total: 4 years' imprisonment.

Confiscation Order sought in the nominal sum of £1.

Forfeiture and destruction of drugs and paraphernalia sought.

Recommendation for deportation sought on completion of prison sentence.

Sentence and Observations of Court:

For Dos Santos the Court had regard for his guilty plea, the background reports provided to the Court and the letters from himself and his family. 

The Court considered the matter of deportation in relation to Dos Santos, and was satisfied that the first part of the test was met.  In relation to the second part of the test the Court, by a majority, concluded that a recommendation for deportation would be disproportionate to the defendant's rights under Article 8 of the Human Rights (Jersey) Law 2000 and accordingly did not recommend deportation. 

Starting point 7 years' imprisonment.

Count 3:

4 years' imprisonment.

Total: 4 years' imprisonment.

Confiscation Order made in the nominal sum of £1.

Forfeiture and destruction of drugs and paraphernalia ordered. 

No recommendation for deportation ordered. 

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

Advocate W. A. F. Redgrave for Miah.

Advocate C. James for Dos Santos.

JUDGMENT

THE commissisoner:

1.        Miah has pleaded guilty to supplying Dos Santos with 35 grams of heroin and Dos Santos has pleaded guilty to possessing 3.13 grams of heroin supplied by Miah with intent to onward supply of that heroin to his friends.  35 grams has a street value of between £7,000 and £14,000 and 3.13 grams a street value of between £600 and £1,200.  Both defendants have a history of opiate dependency and both have previous convictions for drugs related offences.  Both are assessed at a high risk of reoffending.

2.        The Rimmer guidelines suggest a starting point of between 7 and 9 years for class A drugs in powder form weighing between 1 and 20 grams; for 35 grams the band is between 8 and 10 years.  The Crown seeks a starting point for Dos Santos of 7 years and 10 years for Miah.  The Crown takes the view that Miah was further up the chain of supply and closer to the source of importation into the Island.  Miah, the Crown says, has admitted coming to the Island to deal in heroin for his supplier in order to pay off a drug related debt he had accumulated whilst living in London.  Mr Redgrave has pointed out that he came to the Island under pressure from those to whom he was indebted.  

3.        For the defence Miss James accepts that the 7 year starting point for Dos Santos is correct, as do we.   For Miah, Mr Redgrave does not accept that 10 years is the correct starting point.  We have considered the matter carefully and we agree with the submissions of Mr Redgrave.  In our view 9 years does properly reflect both the weight of the drugs involved and the level of Miah's involvement. 

4.        The Crown, having taken into account the guilty pleas and mitigation contained in the reports, have moved for a final sentence of imprisonment for Dos Santos of 4 years and of Miah for 6 years. 

5.        In terms of mitigation and taking Dos Santos first, he has of course pleaded guilty and he has been cooperative.  We have seen the support from his family, the letter that you have written to us and the letter from your mother and sister and we have taken into account everything that we read about your background in the social enquiry report and we note the support that you have from your family today.  We are very impressed by the progress that you have made in prison, you are drugs free for the first time we think, and have been moved to the enhanced status so we congratulate you on that and hope that you are able to continue with that progress.

6.        In terms of Miah, again you have pleaded guilty, you have been cooperative but in your case more so in the sense that you have in effect written your own Indictment in relation to the earlier supply for which credit must be given to you.  We have read your letter and the letter from your brother and considered your own background and the difficulties that you have had set out in the social enquiry report and we accept that you have, to some extent, been a victim of those to whom you are indebted in London. 

7.        Having taken all of that mitigation into account we therefore have arrived at the following sentences. 

8.        Mr Dos Santos, for Count 3 you are sentenced to 4 years' imprisonment.

9.        Mr Miah, on Count 1;  5½ years' imprisonment and on Count 2; 4 years' imprisonment, concurrent which gives a total of 5½ years' imprisonment .

10.      We order the forfeiture and destruction of the drugs and the related paraphernalia seized in the case.

11.      We now turn to the issue of whether or not we should make a recommendation for the deportation of Dos Santos.  The Crown seeks such a recommendation in his case on the completion of his sentence.  It is a two-fold test that we have to apply, firstly we have to consider whether his continued presence in Jersey would be detrimental to the public good, and secondly whether deportation would be disproportionate having regard to his rights under ECHR and the rights of his family.  In this case of course that would be his mother and his siblings.  With regard to the first part of the test, he now has eight convictions for drug related offences, including possession with intent to supply of heroin, the supply of heroin and allowing premises to be used for the taking of heroin, and indeed for affray.  He has been an addict since he was 15, some ten years, and is assessed at a high risk of reoffending.  We have therefore no doubt that the first part of the test is met in this case. 

12.      Turning to the second part of the test, Dos Santos moved to Jersey in 1994 with his brother.  He was brought up in Madeira prior to then being looked after by his grandparents but he moved to Jersey aged 9 to be with his parents who were working here and he has lived here ever since.  His sister was born in the year that he moved.  His parents separated in 1996 and he has had no contact with his father since that time.  We understand that the father is now possibly living in Madeira.  His relationship with his mother was difficult at times and he left home at 17 years of age but he has intermittently lived with his brother and his mother when relations have been better.  For him his brother is a stabilising and important influence.  He is regularly visited by his mother and his sister in prison.  He has a Venezuelan girlfriend, we are told, although she herself is not a British citizen and we have no further details about that relationship.

13.      In 2007 the Court recommended the deportation of Dos Santos for affray but he was not in fact deported by the Governor but he was given a warning that he would be if he offended again, which of course he has.  The Court has struggled with this issue in terms of balancing the needs of the Island against the human rights of Dos Santos and his family but at the end of that debate, and by a majority, we have concluded that his deportation now would be disproportionate, having regard to his ECHR rights, and we are not therefore going to recommend deportation. 

No Authorities

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

Camacho-v-AG [2007] JLR 462.

Human Rights (Jersey) Law 2000.