Jersey Unreported Judgments

2001/42

3 pages

ROYAL COURT

(Samedi Division)

 

19^th February, 2001

 

Before:  M.C. St. J. Birt, Esq., Deputy Bailiff, and

                                                Jurats Le Ruez and Quérée

 

 

The Attorney General

-v-

Carlos Jordene Gouveia Viveiros

 

 

1 count of:   possession of a controlled drug, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:

                    heroin.

 

Age:     20 at time of offence; over 21 at date of conviction.

 

Plea:    Guilty.

 

Details of Offence:

 

The police recovered 11 heat-sealed clingfilm wraps contained in a re-sealable bag concealed in the indicator stalk of the vehicle belonging to Viveiros.  The total weight of the powder was 1.11 grams (56% purity by weight diamorphine) with a street value of £550 (based on score bag being worth £50) and a wholesale value of between £150 - £200.  Viveiros stated that he had purchased the drug the previous evening and had divided it into the 11 bags with a view to funding his own addiction.

 

Details of Mitigation:

 

The accused admitted that the heroin was his during the course of a question and answer interview (but at that stage denied that he was in possession of the heroin with intent to supply).  He pleaded guilty to the possession of heroin, but when that charge was withdrawn and substituted by a charge of possession of heroin with intent to supply (approximately within 4 weeks of the date of the offence) Viveiros pleaded guilty immediately to the new charge.  Although he has a previous conviction for being in possession of a Class A drug with intent to supply, that conviction related to possession of two ecstasy tablets and had it not been for his candid admission the police would not have been able to charge him with possession with intent to supply.  The accused was placed on probation for that offence by the Magistrate.  The breach of the terms of the probation order imposed by the Magistrate was a technical breach (he was late catching his bus).  Other mitigating factors included his youth; he had reached a turning point in his life; he had spent 4½ months on remand; he has restored the relationship with his girlfriend who is now his fiancée; the accused's co-operation with the police (during the search of his car he pointed the police to exactly where the drugs were located).  Although the accused had not been entirely open with the police during the first interview, these were the actions of a scared young man who had made a foolish response in a difficult situation; he had shown genuine remorse; he was a changed character.  Prior to his arrest the accused had approached the alcohol and drugs advisory service and had undertaken methadone treatment.  This had failed to solve his addiction problems.  Following his incarceration he has broken his dependence on heroin.  The Court was urged to give him another chance.  In the alternative if a custodial sentence was imposed then the starting point should be one of six years and full remission should be given for the guilty plea together with a further two years' discount for his youth should be made which would result in a two year sentence.

 

Previous Convictions:

 

January/February 1999: being in possession of two MDMA tablets with intent to supply for which the accused was sentenced to probation and community service by the Magistrate's Court.

 

Conclusions:    3 years' youth detention.

Starting point: 7 years; 2 year deduction for guilty plea; 2 years for youth.

 

Sentence and Observations of the Court:    2½ years' youth detention.

 

The Crown's starting point of seven years was correct but greater allowance should be given for all available mitigation which the Court had outlined i.e. guilty plea; youth; efforts to conquer heroin habit; voluntary help he sought prior to arrest; remorse; support of his fiancée and all the matters as set out in the detailed social enquiry report.

 

 

P. Matthews, Esq., Crown Advocate;

Advocate A. Clarke for the accused.

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This is yet another example of the damage caused to a young life by heroin addiction.  This defendant first started smoking heroin in May of last year.  He rapidly moved on to injecting himself and by September his addiction was such that he had sold all his possessions, stolen from his girlfriend, and lost both his job and his accommodation.

 

2.            In October, 2000, he was found to be in possession of 1.1 grams of heroin made up into eleven wraps which he intended to sell in order to fund his habit.

 

3.            Mr. Clarke has urged us to treat this as an exceptional case and impose a non-custodial sentence.  We have considered very carefully all the points which he has made but the policy of this Court is clear in relation to dealing in Class A drugs and we do not think that this case can be dealt with other than by way of a custodial sentence.

 

4.            The Crown has suggested a starting point of seven years.  Mr. Clarke has urged us to adopt a starting point of six years and has referred us to the case of A.G. -v- Postill (2^nd October, 1995) Jersey Unreported.  It is always dangerous to try to compare the facts of one case with another and we remind ourselves of the general principle in Campbell & Ors -v- A.G. (1995) JLR 136 CofA that seldom is it appropriate to have a starting point of less than seven years.  We do not think that this is one of those rare cases and we believe that the Crown was correct to take a starting point of 7 years.

 

5.            However, Mr. Clarke has raised a number of powerful points in mitigation.  First, he has referred us to the defendant's youth.  Indeed, he was 20 when he committed these offences, although he was 21 when he was formally convicted today by pleading guilty before this Court.  Nevertheless, the spirit of the Criminal Justice (Young Offenders) (Jersey) Law, 1994 should still be considered and is considered by this Court where an offender is only just over the required age.  He is further entitled to substantial credit for his guilty plea which was entered at a very early stage.  He has clearly made determined efforts to conquer his heroin habit and indeed whilst in prison has asked for additional tests to ensure that he remains clear of the drug.  We commend him for that and we also note that he had voluntarily sought help from the drug and alcohol service prior to his arrest.  He is remorseful and has the support of his fiancée.  We have seen references which show that there is a good side to this defendant.  We have also taken account of the information in the social enquiry report.

 

6.            In all the circumstances we think we can allow more by way of deduction than was allowed by the Crown.  Therefore, Viveiros, the Court sentences you to 2½ years' youth detention and we order the forfeiture and destruction of the drugs.

 

Authorities

 

 

Campbell & Ors -v- A.G. (1995) JLR 136 CofA.

 

A.G. -v- Whyte (17^th March, 1999) Jersey Unreported.

 

A.G. -v- Postill (2^nd October, 1995) Jersey Unreported.