Jersey Unreported Judgments

Superior Number Sentencing - drugs - supply - Class A and Class B

[2022]JRC003

Royal Court

(Samedi)

10 January 2022

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Austin-Vautier, Averty and Cornish

The Attorney General

-v-

Fernando Miguel Freitas Costa

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 17^th December 2021, following a guilty plea to the following charges:

2 counts of:	Being concerned in the supplying of, or in the making of an offer to supply, a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey), Law, 1978 (Count 2 and Count 3).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey), Law, 1978. (Count 4).

Age:  31. 

Plea: Guilty. 

Details of Offence:

The Defendant was arrested in possession of two wraps of cocaine totalling 1.312g.  The Defendant's phone was examined, and a substantial number of messages were extracted which demonstrated that Costa was supplying both cocaine and cannabis to a large number of users.  Messages demonstrated that between 7^th May 2019 and 29^th February 2020 the Defendant had been dealing cocaine and dealing cannabis between 22^nd September 2018 and 18^th February 2020.  Messages from one of his upstream suppliers were found, showing he was supplied with at least 140g of cocaine, and offered a further 160g.  In interview, he admitted receiving a "substantial" quantity of cocaine for onward sale from another supplier.  The Crown was unable to give an exact figure for the cocaine supplied.

Details of Mitigation:

The Defendant has the benefit of guilty pleas.  No convictions for drug-related offending.

Previous Convictions:

The Defendant has previous convictions for driving offences and harassment but no previous drugs convictions.

Conclusions:

Count 2:	Starting point 12 years' imprisonment.  8 years and 6 months' imprisonment.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	No separate penalty.

Total:  8 years and 6 months' imprisonment. 

Forfeiture and destruction of the drugs sought. 

Sentence and Observations of Court:

Count 2:	Starting point 11 years' imprisonment.  7 years' imprisonment.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	No separate penalty.

Total:  7 years' imprisonment. 

Forfeiture and destruction of the drugs ordered. 

Confiscation adjourned to 12 April 2022 at 10am. 

Ms L. B. Hallam, Crown Advocate.

Advocate F. L. Pinel for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are to be sentenced today for dealing in substantial amounts of cocaine between the 7^th May 2019 and 29^th February 2020 and dealing in cannabis between 22^nd September 2018 and 18^th February 2020.

2.        We do not need to refer to the facts in detail as these have been adequately set out by the Crown in the summary that has been provided.  It is clear from your phone and indeed from your admissions in interview, that you have dealt in both cocaine and cannabis for a significant period, although the full amount of the offending with regard to cocaine may not be known, it is reasonable to take the view that the amount was substantial.

3.        You have pleaded guilty, and the plea that you have entered was on the basis that at a difficult time in your life, you became addicted to cocaine, you began to supply drugs to fund your addiction.  Supplying cocaine to those who ask and doing so for payment is a commercial supply and increases the amount of the availability of this drug within the Island.  That you supplied to fund an addiction by skimming some drugs off the top as they passed through your hands, if that was indeed the case, would simply be another way of profiting from the trade.

4.        We note the report of the Drug Trafficking Expert who says that in his opinion you were actively involved in the supply of both cocaine and cannabis resin.

5.        We apply the principles of Rimmer v AG [2001] JLR 373 and Campbell v AG [1995] JLR 136.  It is clear that you were supplied with at least 144 grams of cocaine and a significant amount in addition to that of an amount unspecified.  It is impossible to say how much cannabis you have supplied.

6.        In general, supplying substantial quantities of two types of drugs, as set in the case of Valler v AG [2002] JLR 383 would give rise to an uplift in the starting point for the more serious offending.  The Crown in this case does not however seek an uplift in that regard because of the substantial amounts of cocaine involved.  We agree with this approach.

7.        In terms of mitigation, we note your guilty plea.  You have made admissions and you have been cooperative in as much as you have provided the PIN number for your phone and this has exposed to a great extent your dealing, and you do not indeed have any previous convictions in connection with drugs, although your record is not a good one.  You also appear now to accept the illegality and seriousness of your actions as appears from the Pre-Sentencing Report, even though you are assessed as posing a high risk of reconviction.

8.        In terms of other mitigation we have read your letter of remorse carefully, together with those of your partner, your friends, and your colleagues.  Cumulatively they paint a good picture of you, specifically as to your work ethic but generally as well.  As we have said on other occasions though the effects on your family of offending is a sad consequence of your actions, but they are your actions, and you only appeared to consider the affects once you were caught.

9.        Dealing first with the matter of the Attorney General's statement, we defer further consideration of that until 10am on 12^th April 2022, for a hearing before the Inferior Number.

10.      Turning to sentence we accept the approach of the Crown, but we do not agree with the conclusions.  We cannot be confident in the quantity of cocaine that you supplied, and we think we should work on the basis of the lower range as urged by your counsel.  We also think that we should deduct from the total a full discount to reflect your pleas and other mitigation and we note that there has been a delay for which you cannot be blamed.

11.      Accordingly, we sentence as follows: -

(i)        Count 2, being concerned in the supply of cocaine from a starting point of 11 years, 7 years imprisonment.

(ii)       Count 3, being concerned in the supply of cannabis resin, 12 months' imprisonment concurrent.

(iii)      Count 4, possession of cocaine, no separate penalty.

12.      This makes a total of 7 years' imprisonment. 

13.      We also order the forfeiture and destruction of the drugs seized in this case.

14.      We have of course considered the matter of deportation and we have applied the principle set in Camacho v AG [2007] JLR 462.  As the Crown has indicated two questions fall to be considered.  The first being whether your continued presence is detrimental to the Island.  If it is, then the second question would be the potential effect of deportation on the human rights of innocent persons connected to you and indeed your own human rights as well.

15.      We are satisfied entirely that the first limb of the test is passed, and your continuing presence would be detrimental to the Island.  However, in the light of the information we have received relating to your partner and child, who are both innocent of any wrongdoing in connection with this matter, we think on balance that the second limb of the test has not yet been passed.  Accordingly, we make no recommendation for your deportation at the end of your sentence.

Authorities

Rimmer v AG [2001] JLR 373. 

Campbell v AG [1995] JLR 136. 

Valler v AG [2002] JLR 383. 

Camacho v AG [2007] JLR 462. 

AG v O'Brien [2021] JRC 272.