Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - possession - supply - Class A and Class B

[2021]JRC318

Royal Court

(Samedi)

17 December 2021

Before     :

A. J. Olsen, Esq., Lieutenant Bailiff, and Jurats Ronge and Christensen, M.B.E.

The Attorney General

-v-

Fabio Andre Geraldo Gomes

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

4 counts of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1, Count 5, Count 6, Count 7)
1 count of:	Being concerned in the supplying of, or in the making of an offer to supply, contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).
1 count of:	Possessing a controlled drug with intent to supply, contrary to Article 8(2) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).
1 count of:	Possessing a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 4).

Age:  21. 

Plea: Guilty. 

Details of Offence:

On 23^rd July 2020, the Defendant imported 98.92 grams of cannabis resin via the post (Count 1).  On 28^th July 2020, following a search of the Defendant's home the Defendant was found to be in possession of 11.96 grams and 0.378 grams of MDMB-4en- PINACA (Count 4).  He was also found to be in possession of 0.772 grams of MDMA which he intended to supply to another (Count 3).  An examination of his mobile phone revealed he had been involved in the supply of cannabis (Count 2).

 

The Defendant imported a total of 19.63 grams of cannabis (Count 5) via the post; on 18^th February 2021 (2.94 grams of cannabis), 5^th March 2021 (2.93 grams) and 25^th March 2021 (13.89 grams).

 

On 25^th March 2021, the Defendant imported three bags of sweets weighing a total of 38.53 grams. The sweets contained traces of tetrahydrocannabinol (Count 6).

 

On 5^th July 2021 the Defendant imported 13.89 grams of cannabis (Count 7).

Details of Mitigation:

Guilty pleas.  The defendant was 19 and 20 years old at the time of the offences.

Previous Convictions:

None.

Conclusions:

Count 1:	Starting point 12 months' imprisonment.  8 month's imprisonment, concurrent.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	Starting point 6 years' imprisonment.  2½ years' imprisonment.
Count 4:	1 month's imprisonment, concurrent.
Count 5:	Starting point 9 months' imprisonment.  4 months' imprisonment, concurrent.
Count 6:	6 months' imprisonment, concurrent.
Count 7:	Starting point 9 months' imprisonment.  4 months' imprisonment, concurrent.

Total:  2½ years' imprisonment. 

Declaration of Benefit sought in the sum of £9,260. 

Confiscation Order sought in the sum of £3,000.

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

Count 1:	140 hours' Community Service Order, equivalent to 8 months' imprisonment, together with a 12 months' Probation Order, concurrent.
Count 2:	90 hours' Community Service Order, equivalent to 3 months' imprisonment, together with a 12 months' Probation Order, concurrent.
Count 3:	312 hours' Community Service Order, equivalent to 24 months' imprisonment, together with a 12 months' Probation Order, concurrent.
Count 4:	50 hours' Community Service Order, equivalent to 1 month's imprisonment, together with a 12 months' Probation Order, concurrent.
Count 5:	100 hours' Community Service Order, equivalent to 4 months' imprisonment, together with a 12 months' Probation Order, concurrent.
Count 6:	100 hours' Community Service Order, equivalent to 4 months' imprisonment, together with a 12 months' Probation Order, concurrent.
Count 7:	100 hours' Community Service Order, equivalent to 4 months' imprisonment, together with a 12 months' Probation Order, concurrent.

Total:  312 hours' Community Service Order, equivalent to 24 months' imprisonment, to be completed within 2 years of today's date, together with a 12 months' Probation Order.

Confiscation matters postponed to a later date.

Forfeiture and destruction of the drugs ordered. 

C. R. Baglin Esq., Crown Advocate.

Advocate A. E. Binnie for the Defendant.

JUDGMENT

THE Lieutenant BAILIFF:

1.        Mr Gomes, you have pleaded guilty to a total of seven drugs and drug trafficking offences, which were committed over the course of about 12 months.  Some of the drugs involved were Class A, and as the Crown has correctly pointed out the maximum penalty for importing such vile substances is life imprisonment.

2.        In our society, Mr Gomes, the people elect politicians to represent them, and the politicians enact laws on behalf of the people.  The fact that one of the laws that you have broken involves the possibility of imprisonment for life shows just how seriously and with what revulsion our society views these crimes.  People who embark on a course of importing or supplying Class A drugs, particularly young people like you, should think very carefully indeed, not only about the effect that their actions might have upon the consumers of these drugs, but also about the terrible trouble into which you are likely to get.  These are very serious charges indeed.  The loss of liberty for a substantial period is a terrible price to pay, and perhaps you now understand that. 

3.        It is an aggravating feature of this case, and it has troubled us that you continued with your criminal behaviour in the full knowledge that you were already under investigation for similar offences.  Indeed, you had been arrested at least twice, but you continued to offend, nonetheless.

4.        It seems to us that this was an almost incredibly stupid thing to do, as well of course as being an illegal one.  It is precisely because young people are sometimes prone to doing incredibly stupid things that we have in place the Criminal Justice (Young Offenders) (Jersey) Law 2014, which the Crown rightly concedes applies to you because you were under the age of 21 when all this offending took place.  That Law, as I am sure your counsel has told you, restricts the power of the courts to impose a sentence of Youth Detention; but in this case the prosecution contends that Article 4(3) applies, namely that your offending, or the totality of your offending, is so serious that a non-custodial sentence cannot be justified, and as you have heard they have asked us to send you to prison for 2½ years.

5.        We take account of the very considerable mitigation that is available to you.  Your youth, your confession of guilt and early guilty plea are all powerful mitigating factors, and we also take fully into account something else that is as just as powerful in our view, namely the fact that you have no previous convictions at all.  You were cooperative with the Customs Officers, and we are impressed that you provided the PIN for your mobile telephone and that you gave a bank authority.  You clearly have the support of a close and loving family, and we are told that you have a strong work ethic.

6.        In regard to the offences themselves, we take into account that the amount of MDMA charged at Count 3 was small at three quarters of a gram.  Advocate Binnie submitted that had you not told Customs that you were minding it for a friend, you would have been charged with simple possession, the sentence in respect of which would have been measurable in months and not years.  And the amount of Class A involved at Count 6 was not even measurable.

7.        We take into account that all the counts involved in totality insufficient quantities to reach the bottom of the guidelines in Rimmer v AG [2001] JLR 373 and Campbell v AG [1995] JLR 136.

8.        We have read the very comprehensive pre-sentence report with care and are impressed by the fact that you did not try to minimise your guilt, that you spoke openly about your offending and that you were honest with the Probation Officer.  We think that your underlying health condition must have been quite a significant burden on you, particularly in your younger days when you were at school.  You are described as being at a moderate risk of reconviction.

9.        In all the circumstances the Court is of the view that this is an exceptional case, and that we are safely able to depart from the Court's established policy in relation to trafficking illegal drugs.  We are not going to send you to prison.

10.      There will however be a very significant period of Community Service. I shall now announce the Court's sentences in relation to each count in turn:

(i)        Count 1, 140 hours' Community Service, equivalent to 8 months' imprisonment.

(ii)       Count 2, 90 hours' Community Service, equivalent to 3 months' imprisonment.

(iii)      Count 3, 312 hours' Community Service, equivalent to 24 months' imprisonment.

(iv)      Count 4, 50 hours' Community Service, equivalent to 1 month's imprisonment.

(v)       Count 5, 100 hours' Community Service, equivalent to 4 months' imprisonment.

(vi)      Count 6, 100 hours' Community Service, equivalent to 4 months' imprisonment.

(vii)     Count 7, 100 hours' Community Service, equivalent to 4 months' imprisonment.

11.      All those sentences will be concurrent, making a total of 312 hours' Community Service or 24 months' imprisonment.  You must complete this work within 2 years of today's date. 

12.      In addition there will be, as recommended in the pre-sentence report, a 12-month Probation Order on each of the seven counts concurrent, and you will please comply faithfully with the directions of your Probation Officer and take every opportunity that has been offered to you.

13.      There will be an order for forfeiture and destruction of the drugs.

14.      Now, Mr Gomes, it has been a pretty close shave, and we are sure that you know that.  The Court is giving you an opportunity to prove that what you say is what you are going to do.  Without wishing to sound negative I must warn you that if you reoffend after today, if you fail to comply with the Community Service Order, if you do not do what the Probation Officer reasonably tells you, you will be back in front of this Court or another Court like us, and you know what the consequences of that will be.  So please help yourself.  The Court has put its trust in you.

Authorities

Criminal Justice (Young Offenders) (Jersey) Law 2014

Rimmer v AG [2001] JLR 373. 

Campbell v AG [1995] JLR 136. 

AG v Cameron [2008] JRC 182

AG v Cameron [2008] JLR Note 44

AG v Diogo [2014] JRC 153

AG v Fernandes [2015] JRC 198B

AG v Le Coguiec [2017] JRC 120

AG v Hutcheson [2018] JRC 157A.

AG v Gabb [2020] JRC 107.

AG v Mayo [2020] JRC 076.

AG v Duffy [2021] JRC 121.

AG v Johnson [2021] JRC 162.