Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class A.

[2014]JRC049

Royal Court

(Samedi)

24 February 2014

The Attorney General

-v-

Jose Luis Fernandes Macedo

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 17^th January, 2014, following a guilty plea to the following charge:

Age:  27.

Plea: Guilty.

Details of Offence

On 26^th October, 2013 the defendant arrived at the airport having spent a month in Portugal.  On leaving the airport, he was met by a car.  His ex-partner was in the passenger seat and together they travelled to the defendant's home address in St Helier.  On arrival they were both arrested, as was the driver of the car.  Whilst in custody, the defendant admitted that he was carrying heroin concealed internally.  Three packages were later recovered and were found to contain 60.92 g of heroin with 7% purity.  The wholesale value was between £12,200 and £24,400 and the street value was in the region of £61,000.  In interview, the defendant told officers that he had been approached by a man in a bar in Portugal, who asked him to import 110g of heroin into Jersey.  No money was offered, but the defendant was told he could keep half of the drugs for personal use.  The rest were to be delivered to an unnamed man in Jersey.  He said that he had started using the drug in Portugal as soon as he received it, injecting a high dosage three times a day.  A different version of events was given to Probation.

Details of Mitigation:

Crown: guilty plea and cooperative with the police, no previous convictions. 

Defence: no financial motive. Insofar as deportation was concerned, his mother and sister (in Jersey) were unwell

Previous Convictions:

None.

Conclusions:

Confiscation Order sought in the nominal sum of £1.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

Confiscation Order made in the nominal sum of £1.

No recommendation for deportation made.

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

Advocate P. G. Nicolls for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant imported into Jersey, concealed internally, 60.92 grams of heroin, which contained 7% by weight of diamorphine, which has a wholesale value in Jersey of between £12,200 and £24,400 and a street value of around £61,000.  The defendant is a heroin addict and told police that when in Portugal, on a month's break, he had been offered 110 grams of heroin, of which he could keep half, provided the balance was brought to Jersey to be handed to another male in the Island.  The defendant was intercepted by the police shortly after arriving in Jersey.  He has given, however, a slightly different account of this offence to the Probation Department. 

2.        Applying the Rimmer Lusk and Bade v AG [2001] JLR 373 guidelines, a starting point of 9-11 years is suggested for this quantity of drugs.  On either version that he has advanced he was to supply the lion's share of the heroin he imported to third parties.  The Crown has adopted a starting point of 9 years, reduced to 4½ years to take into account mitigation. 

3.        In terms of mitigation the defendant has pleaded guilty to the offence and he has been cooperative with the police.  Furthermore he has no previous convictions and is therefore a man of good character.  He has the support of his former partner and his parents who are Court.  He has also provided us with a letter of remorse. 

4.        The Defence take no issue with the starting point of 9 years, which is at the bottom end of the band in Rimmer or, indeed, with the conclusions of the Crown of 4½ years. 

5.        The policy of the Court is that those who traffic in Class A drugs will receive condign punishment to mark the peculiarly heinous and antisocial nature of this crime.  However, we accept that there is substantial mitigation in this case and, taking that into account, and taking into account all of the relevant material before the Court, we are going to grant the conclusions of the Crown. 

6.        You are sentenced to 4½ years' imprisonment. 

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

8.        The defendant is a Portuguese national and the Crown seeks a recommendation that he be deported at the end of his sentence.  The test is two-fold as set out in the Court of Appeal judgment of Camacho-v-AG [2007] JCA 145, namely that the Court is required to find first that an offender's continued presence in the Island is detrimental to the public good and secondly, that his deportation would not be disproportionate, having regard to the relevant Convention rights of the applicant and others not before the Court; in particular the right of the applicant and his family, to respect for family life under Article 8. 

9.        Taking the first part of the test, the Crown makes the often repeated observation that the Island has no use whatsoever for those who are concerned in the importation of large amounts of Class A drugs, even if they are destined for personal use.  As to the second part of the test the Crown say the defendant has been in Jersey since 2000, some 14 years ago; he would have been 14 at that time and therefore still a child when he came here.  He has no children himself but his parents and his 6 year old sister live here.  The Crown tells us that he started using heroin in Jersey when he was 21 and, despite attempts to detoxify himself, has relapsed into addiction.  He has been unemployed, apparently, since 2011. 

10.      The Court is unanimously of the view that the first part of the test in Camacho is met.  Turning to the second part of the test, we were disappointed by the lack of information and supporting material that we were provided in relation to the defendant's parents and sister.  We have to consider their Article 8 rights and the information we had about their respective apparent illnesses and infirmities was simply insufficient.  In future we think defence counsel should, if possible, interview the families whose right are potentially affected, to ensure that the Court has a full picture.  However, on the facts before us upon which we feel we can rely, we have concluded by a majority, in a discussion which was very finely balanced, that it would be disproportionate for the defendant to be deported.  He came here as a child aged 14 and has spent all of his adult life here, that is some 14 years.  He is financially dependent upon his parents and, clearly, the family is a close one.  He would be permanently separated not just from his parents but from his 6 year old sister and them from him.  In short, we feel that to separate this family through the defendant's deportation, would be disproportionate.  Therefore we are not going to recommend deportation. 

11.      You must understand that if you offend again in this jurisdiction, it is very likely that the Court will recommend your deportation. 

Authorities

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

Camacho-v-AG [2007] JCA 145.

European Convention on Human Rights.