Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation Class A and B.

[2013]JRC148A

Royal Court

(Samedi)

29 July 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Morgan, Fisher, Kerley, Marett-Crosby, Crill and Milner.

The Attorney General

-v-

Alberto de Barros Pestana

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 21^st June, 2013, following guilty pleas to the following charges:

3 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Counts 1, 2 and 3).

Age:  28.

Plea: Guilty.

Details of Offence:

On 2^nd April, 2013, Pestana was stopped by customs officers as he arrived at Jersey Airport on a flight from Funchal.  He told officers he had been visiting his sick father and had left Jersey on 27^th March, 2013. 

Pestana initially denied using any drugs whilst away but an ion scan swab taken from his shoes showed signs of heroin.  A urine sample also resulted in positive indications for both heroin and cannabis.  Pestana was arrested on suspicion of being knowingly concerned in the importation of a controlled drug.  An X-ray of his abdomen showed at least ten foreign objects.  However, Pestana denied having any packages concealed internally. 

Pestana was subsequently escorted to the Paco toilet and produced three wrapped packages from his rectum.  He then told officers that he had a total of eleven packages of mixed drugs concealed internally, and over the next 19 hours he produced the other eight packages.  Between them, the packages were found to contain 64 grams of heroin, with a percentage weight of diamorphine between 14%-16%, and a local street value of £64,000 (Count 1).  The packages also contained 25.82 grams of cannabis resin with a local street value of £250-£300 (Count 2) and 9.07 grams of herbal cannabis with a local street value of £90-£110 (Count 3).  The total value of drugs imported by Pestana was between £64,340 and £64,410.

A search of Pestana's home address was undertaken and a set of electronic scales were seized. 

Pestana was interviewed and confirmed the purpose of his trip to Madeira was to purchase drugs and bring them back to Jersey and he had visited his sick father prior to arranging the importation.  Pestana said he had withdrawn €1,500 from a bank account he held in Madeira to purchase a mixture of heroin and cannabis from a dealer.  He confirmed that he had concealed the drugs internally to avoid detection and that it had been his intention to both sell and personally consume the drugs.  At one point when asked what his plan was he replied "to use and to make some money out of it to sort my life out."  When asked what he would have done with the money he replied "look after my son and pay the house, wasn't to do silly things."  He reiterated that he had acted alone and that no-one else was involved with the planning. 

Pestana confirmed that he was a heroin addict prior to his arrival in Jersey in 2009 and had previously sought assistance for alcohol addiction in Jersey and Madeira.  He confirmed that the scales found at his property belonged to him and he used them to weigh drugs. 

Details of Mitigation:

Guilty plea, cooperation, first offence, letter of remorse, low risk of reoffending. 

Previous Convictions:

None.

Conclusions:

Count 1:	Starting point 10 years. 6 years' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	1 month's imprisonment, concurrent.

Total: 6 years' imprisonment.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Court said that it was simply implausible that the "vast majority" of the heroin in this case was for personal use, and that Pestana would be sentenced on the basis that a significant proportion was to be sold and a significant proportion was for personal use.

Conclusions granted.

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

Advocate A. T. H. English for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You imported 64 grams of heroin, concealed internally, when you returned from Madeira.  You also imported small personal amounts of cannabis resin and herbal cannabis.  The heroin had a retail street value in Jersey of £64,000, if it was sold as 1,280 deal bags of £50 each.  It apparently cost you only £1,300 in Madeira.  When you were interviewed by the Customs you said that you would have used some of the heroin yourself and you would have sold some of it and, according to the Crown summary, you also told Customs that the purpose of the trip to Madeira was to buy drugs to bring back to Jersey.  On the other hand, when interviewed by the Probation Service, you said that, although you used to have a heroin dependency when you lived in Madeira, you had not taken heroin since you arrived in Jersey in June 2009.  You said that on your visit to Madeira this time you were so shocked by your father's ill health that you started taking heroin again.  You told the probation officer that you had bought all of the heroin for your own use. 

2.        When your Advocate mitigated on your behalf he accepted that that latter statement by you to the Probation Service was untrue, but he said that you would only have sold a small part of the heroin and you would have used the vast majority yourself.  When the Court asked him about the scales which were in your flat, he took instructions from you and you said that you had purchased them a month before you left for Madeira in order to measure heroin which was for your own use.  When it was pointed out to him that this was quite inconsistent with your assertion of not having used heroin in Jersey at all, he took further instructions from you and you then admitted that in fact you did take heroin whilst you were in Jersey but the shock of seeing your father in Madeira had increased the amount you used. 

3.        This admission on your part, that you had used heroin whilst in Jersey, was not only contrary to what you had told the probation officer; it was quite contrary to the letter which you have written to this Court which is dated today and which was handed up to us by your Advocate, in which you said this:-

"At the time of the offence I was deeply depressed due to seeing my father so gravely ill.  It was really hard to see him so ill.  I felt powerless to help him and distraught at the prospect of losing him.  I was vulnerable and wasn't thinking straight which resulted in me taking heroin for the first time in many years." 

So in your letter to the Court you were saying something which you now admit was untrue. 

4.        As reaffirmed in the recent case R-v-Kearns and Others [2013] EWCA Crim 467 there is no need for a Newton Hearing where a version put forward by the defence is wholly implausible.  This Court has no hesitation in finding that your assertion that the vast majority of this heroin was for your personal use is quite implausible.  We say that for the following reasons:-

(i)        As your Advocate accepted, there was a financial motive for this purchase.  You were in dire financial straits and selling the drugs would help your financial position.  The idea that you would only sell a very little bit and thereby only help your financial position a very little bit is unlikely in the extreme. 

(ii)       You have said different things about the purpose of the visit.  You told Customs that one of the purposes was to buy drugs whereas, through your Advocate, you have asserted that the idea of buying drugs only occurred to you on the spur of the moment following the dismay caused by your father's ill-health and a chance encounter with a drug dealer in Madeira. 

(iii)      As we have said, you have lied to us about whether you took heroin whilst residing in Jersey. 

(iv)      The sheer quantity of drugs makes it highly unlikely that the vast majority was for your personal use, particularly given your assertion that your use in Jersey was very light and you only began taking more whilst in Madeira. 

5.        We propose therefore to sentence you on the basis that a significant proportion of this heroin was to be sold and a significant proportion was to be used by you personally.  We cannot of course be more specific than that. 

6.        We take first the starting point.  The case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373 provides for a starting point of 9-11 years for offences of involving between 50-100 grams.  It is true that the amount of 64 grams is towards the lower end but we must also have regard to the nature and scale of your involvement.  You were not here acting as a simple mule or courier; you were the only person involved in this venture.  You bought the drugs, you paid for them, you imported them, concealed them, and you would have benefitted from their use either by consuming them or selling them.  We consider that to be more serious than a simple mule and we take a starting point of 10 years. 

7.        In mitigation we take into account your guilty plea and the fact that you were cooperative with Customs at the time of interview.  We also make an allowance for the fact that you have no previous convictions and this is very much in your favour.  We note that this was an unsophisticated operation and we also note the effect on your son and your father; but the effect on family is so often a consequence of offending and you knew of your father's ill-health at the time you decided to commit this offence. 

8.        Your Advocate has urged that another mitigating factor is the fact that this heroin was between 14-16% in purity and that is clearly on the low side.  He referred us to the case of Hasson-v-AG [2004] JCA 124.  That case in turn referred to paragraph 30 of Rimmer where the Court of Appeal said this:-

"30. On the other hand, we do not consider that there should be a reduction in the starting point where the degree of purity is below the average.  Usually, neither the carrier (as we have already noted) nor indeed the dealer have any regard to the degree of purity, and it would not be appropriate to make a reduction in such circumstances."

In Hasson there was heroin of a purity of only 7%.  The Court of Appeal held that that should be taken into account to reduce to an extent the level of sentence.  The Court referred to the case of R-v-Afzal and Arshad (1991) 13 Cr. App. R. (S) 145 where the expert evidence was that:-

"10% purity was the weakest marketable quality and anything less than 10% would be regarded as a fraudulent sale or rip-off." 

That clearly applied in the case of Hasson but in the absence of any evidence we take the view that there should be no reduction for purity of 14-16%. 

9.        So making allowance for all the mitigation we have referred to, we think that the Crown's conclusions are correct.  On Count 1 you are sentenced to 6 years' imprisonment, on Count 2; 3 months' imprisonment and on Count 3; 1 month's imprisonment, all of those concurrent, so that is 6 years' imprisonment in total. 

10.      We order the forfeiture and destruction of the drugs.

11.      As to deportation, your Advocate has accepted, on your instructions, that you do not oppose a recommendation for deportation.  We have nevertheless considered whether it is the right thing to do.  Applying the well-known two-limbed test, we are satisfied that involvement in the importation of Class A drugs of this seriousness renders your continued presence in the Island detrimental.  As to consideration of your right to a private life under Article 8 of the Convention, we note that you came to Jersey in 2009 and you have one brother here but you have fallen out and do not see him.  You had a partner and a 5 month old child in Jersey, but following your imprisonment on remand they have returned to Madeira to be near your partner's family.  You therefore have no family ties in Jersey.  We therefore agree that it would be proportionate to recommend your deportation and we make that recommendation. 

Authorities

R-v-Kearns and Others [2013] EWCA Crim 467.

Rimmer Lusk and Bade-v-AG [2001] JLR 273.

Hasson-v-AG [2004] JCA 124.

R-v-Afzal and Arshad (1991) 13 Cr. App. R. (S) 145.

European Convention on Human Rights.

Shahnowaz-v-AG [2007] JLR 221.

Camacho-v-AG [2007] JCA 145.

Hasson-v-AG [2004] JRC 036.