Jersey Unreported Judgments

[2007]JRC058

ROYAL COURT

(Samedi Division)

12^th March 2007

Before     :

Sir Philip Bailhache Kt., Bailiff, and Jurats Tibbo, Allo, Clapham, King and Newcombe.

The Attorney General

-v-

Ana Cristina Pestana Da Silva

Sentencing by the Superior Number of the Royal Court following a guilty plea to the following charge:

1 count 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.

Age:  19.

Plea: Guilty

Details of Offence:

Defendant imported 21.14 grams of heroin in her rectum.  At interview, she had purchased a return ticket to fly from Jersey to Madeira by borrowing £800 cash "from a friend" to fund the trip and some shopping.  She knew that heroin was cheaper to buy in Madeira than in Jersey.  Claimed she used five bags of heroin a day, but could not explain how she afforded the habit whilst being unemployed and living on Welfare Benefits.  Later admitted she had exaggerated her habit.  She did not require detoxification at HMP and gave inconsistent explanations of her offence to the Probation Officer.  Mr Gafoor was "not persuaded" the drugs were for her personal use.

Details of Mitigation:

Guilty plea.  Youth.  Co-operation with Customs, but did not name supplier.  Character references.  Had served equivalent sentence 5 months 26 days.  Low risk of re-offending.  Told Immigration Officer she intended to return to Madeira with her 10 month old daughter when she had served her sentence.  However, counsel urged Court not to order deportation and to leave her free to make a choice whether or not she wished to return to Madeira.

Previous Convictions:

None.

Conclusions:

Count 1:

4 years' Youth Detention.

Starting point 8 years; 4 years' Youth Detention.

Forfeiture and destruction of drugs.

No confiscation order.

Deportation sought.

Sentence and Observations of Court:

Count 1:

3½ years' Youth Detention.

Starting point 7 years; 3½ years' Youth Detention.

Forfeiture and destruction of the drugs ordered.

Deportation not recommended.

C. M. M. Yates, Crown Advocate.

Advocate L. J. L. Buckley for the Da Silva.

JUDGMENT

THE BAILIFF:

1.        Ana da Silva is a young woman who imported heroin into Jersey concealed internally.  The amount was 21 grams.  She claims to have borrowed £800 from a friend to fund her trip to Madeira where the drugs were bought and she further claims that the drugs were for her own use.  Although she is a user of heroin that last explanation seems improbable given her financial circumstances.

2.        The Defendant is 19 and the Criminal Justice Young Offenders (Jersey) Law 1994 applies, preventing the Court from imposing a custodial sentence, unless it is satisfied that no other method of dealing with her is appropriate.  We are satisfied that the importation of heroin into Jersey is so serious an offence that a non-custodial sentence cannot be justified.  The question for the Court is the length of that sentence.

3.        Da Silva is the mother of a 10 months old baby who is being cared for by her sister.  The Crown Advocate has taken on the authority of Rimmer v AG a starting point of 8 years' Youth Detention.  As the Court stated in an earlier case this morning, the test which we have to apply is the extent to which the Defendant is involved in drug trafficking.  Having a regard both to the amount of heroin involved, and to all the other circumstances of the case, we think that the appropriate starting point in this case is one of 7 years' Youth Detention.

4.        In mitigation the Defendant has pleaded guilty to the indictment and has co-operated with the investigating officers, except that she has not named her supplier nor the friend who lent her £800.  She is described as a naïve and unsophisticated young woman who is susceptible to manipulation by more seasoned criminals.  We take into account the letter which the Defendant has written to the Court and the other references which we have received.

5.        The Court is satisfied that you knew exactly what you were doing.  You were prepared to place your child at risk in that respect and you imported the heroin into Jersey quite deliberately.  Having taken account of all the mitigation the sentence of the Court is that you will serve 3½ years Youth Detention.

6.        We have to deal now with the question of whether or not to recommend deportation.  The Defendant is a Portuguese national.  The case of Nazari, which the Court has followed on many previous occasions, sets out a two stage test; first, is the Defendant's continued presence in the Island detrimental to the interests of the community and second, is deportation disproportionate to the circumstances of the case, bearing in mind not only the offender, but also those members of the family and others not before the Court, having regard to the requirements of the Human Rights (Jersey) Law 2000.

7.        The Court has had an anxious and lengthy discussion in this respect.  We think that the first test is satisfied.  We conclude that a person who uses heroin, and who is prepared quite deliberately to import a quantity of heroin into the Island, is someone whose continued presence is detrimental to the interests of Jersey.  We have found the second limb much more difficult and by a majority the Court has concluded that a recommendation for deportation would disproportionately affect the interests of other members of the family, particularly the mother, sister and boyfriend, who would be clearly affected were the Defendant to be subject to deportation to Madeira.  We decline therefore to make a recommendation for deportation.

Authorities

Criminal Justice (Young Offenders) (Jersey) Law 1994.

Rimmer, Lusk & Bade -v- AG [2001] JLR 373.

R -v- Nazari [1980] 3 All ER 880.

Human Rights (Jersey) Law 2000.