Jersey Unreported Judgments

[2007]JRC087

ROYAL COURT

(Superior Number)

(Exercising the appellate jurisdiction conferred on it by Article 22 of the Court of Appeal (Jersey)  Law 1961).

23^rd April 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo, Bullen, Clapham, Le Cornu, Newcombe and Liddiard.

Neuza Regina Melim De Carvalho

-v-

The Attorney General

Sentencing by the Superior Number of the Royal Court, against a deportation order made by the Inferior Number on 23^rd February, 2007, following guilty pleas:

1 counts of:	Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978.  (Count 4).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law, 1978.  (Count 6).

Advocate R. S. Boddie for the Appellant.

S. E. Fitz, Crown Advocate.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an appeal against a recommendation for deportation made by the Inferior Number in respect of the applicant on 23^rd February when she was sentenced to 12 months' imprisonment for two offences; one of being concerned in the supply of heroin and one of possession of heroin.

2.        The facts can be briefly stated.  The applicant and her husband were arrested at a café.  8 wraps of heroin were found in a purse in their possession.  At interview Mr De Carvalho admitted that he had already sold 3 bags of heroin that morning.  He also admitted that there was a further amount of heroin at their home.  A search was carried out - it was the second search, the first had, in fact, missed the heroin at the home - and some 6 grams of heroin were found at their home.  Mr De Carvalho pleaded guilty to supplying three wraps of heroin, to being in possession with intent to supply of the 8 wraps found at the café and to possession with intent to supply of the 6 grams found at the home.  The applicant admitted to being concerned in the supply of the 3 wraps by bringing them, together with the 8 other wraps, from the home to the café following her husband's telephone call requesting her to do so, and to simple possession of the 6 grams, which her husband had bought, but of which she was aware and which she had begun using.  Both admitted to a dependency on heroin.  The husband was sentenced to 2 years' imprisonment and recommended for deportation at the end of the sentence.  He has not appealed against that decision.  The applicant was sentenced to 12 months, as we have said, and also recommended for deportation.  She does not appeal against the prison sentence, but does seek leave to appeal against the recommendation for deportation.

3.        The background to her application is as follows: she was born and brought up in Madeira but came to Jersey when she was 16.  When she was 18 she met her co-accused, now her husband. They started to live together and she became pregnant.  They returned to Madeira for the birth of their daughter in December 2003.  The three of them then returned to Jersey when their daughter was about 8 months old.  However, both the applicant and her husband had to work extremely long hours in order to make ends meet and to pay for childcare.  Eventually, in January 2006, they made the decision that their daughter should return to live with the applicant's mother in Madeira, so that they could save more quickly towards a plot that they had bought in Madeira, and where they wished to make their home.  The applicant found the separation from her daughter very hard to take and it was at this stage that she started taking heroin.  Her husband had been taking it for some time.  As is so often the case, the heroin took its grip on her fairly speedily and she soon found herself with a daily dependency.  It was in these circumstances that the offences were committed in August 2006.

4.        As we have said, it was always the intention of the parties to return to Madeira in due course, once they had saved sufficient money.  In those circumstances the husband did not oppose a recommendation for deportation before the Inferior Number and it is accepted that when he is released at the end of December 2007, he will have to return to Madeira.  Before the Inferior Number the applicant accepted that she would return to Madeira with her husband at the end of his sentence, but her Advocate argued strongly that no deportation order should be made against her so that she could remain in Jersey and visit him between the end of her sentence, which is 27^th April, namely, a few days time, and his release.  The plan was, and remains, that the applicant's daughter and her mother should come to Jersey and live with her for that period, thereby enabling the daughter to see her father.  The presence of the mother would enable the applicant to work to support them all.  However, the Inferior Number rejected these submissions and made the recommendation.

5.        Advocate Boddie, on behalf of the applicant, has made a number of submissions which she has put forward very persuasively.  The first submission is that the Inferior Number did not give adequate reasons for making the recommendation for deportation.  When giving the Court's decision, Commissioner Hamon said this in relation to the decision to deport:

"We then come to the question of deportation.  Mrs De Carvalho is a regular user of heroin and her deportation would certainly not cause hardship in Jersey to innocent persons.  We are going to order that Mrs De Carvalho be deported at the end of her sentence.  We should point out she has only friends in Jersey and a daughter in Portugal."

Miss Boddie submits that the Court did not consider the two well known elements, namely whether the applicant's continued presence was detrimental to the Island and the extent to which innocent persons would suffer if the applicant were deported.  Crown Advocate Fitz accepts that the reasoning is not clear in relation to the element of detriment, but she refers to the English case of R v Hikmet Bozat [1996] 1 Cr App R(S) 270, where the Court of Appeal held that although it was imperative the judges should give reasons for making a recommendation for deportation, the failure to do so was not fatal to the recommendation; The Court of Appeal may supply its own reasons if it considers a recommendation for deportation appropriate.

6.        We agree with that approach.  Furthermore, it is clear that the Inferior Number had in mind the appropriate test.  It was addressed at length by both prosecuting and defence counsel and it is inconceivable that the Court did not have in mind the two elements which we have referred to.  It is, after all, a very well known test which is frequently considered by the members of the Royal Court.  In addition, although brief, the wording would appear to be referring to the element of detriment when stating that the applicant was "a regular user of heroin", and to the hardship element when considering whether there was hardship to innocent persons and that she has "friends in Jersey and a daughter in Portugal."  Accordingly, we do not allow the appeal simply on that ground and we propose to consider the other arguments put forward by Miss Boddie.

7.        Her first submission is that the offence, coupled with the applicant's personal circumstances, is such that it would not be detrimental to the Island for her to remain.  Miss Boddie points to the fact the applicant's sole involvement with drug dealing was to bring the wraps to her husband on this one occasion, to the fact that she had only developed her heroin addiction because of the stress caused by the absence of her child, to the fact that she is assessed as being at low risk of re-offending and to the many references supplied to the Court below, and to this Court, showing her good work record and the many positive sides of her character.  In effect, said Miss Boddie, this was a one off offence and was out of character. 

8.        However, the Court has said on numerous occasions that there is no place in this Island for foreign nationals who deal in, or import, Class A drugs to the damage of the young people of this Island.  We quote, once again, from the words of the English Court of Appeal in Samaroo v Secretary for State for Home Department [2001] EWCA Civ 1139, which is a passage which has regularly been quoted before.  The Court of Appeal there said this:

"In my judgment, the Secretary of State was entitled to regard Class A drug trafficking offences as very serious, and ones which are particularly serious and harmful to society.  He was entitled to attach importance to his general policy of deporting those convicted of importation of Class A drugs in order to protect those resident in the UK from the harmful effects of drugs and by deterring others in the interest of preventing crime and disorder."

This Court has said on previous occasions that it endorses those sentiments and we repeat that on this occasion.  The comments, of course, apply equally to drug dealing and to drug importation.  The Court finds therefore that, notwithstanding the points put forward by Miss Boddie, the continued presence of the applicant in the Island would be to its detriment.  We should add that we were referred by counsel to the recent case of AG v Abreu [2007] JRC 081.  However each case turns on its own facts.  We simply reiterate the importance of the general principle, which we have just described in relation to Class A drugs and we note that the case of Samaroo was not cited to the Court in the case of Abreu.

9.        We then turn to consider the second limb of the test, namely, having regard to the interests of innocent parties not before the Court, would it be disproportionate to order deportation?  Here the Court has to balance the detriment against the hardship which would be caused.  The seriousness of the detriment is clearly a very relevant consideration in conducting this balancing operation.  We accept that the drug dealing by the applicant in this case was at the very lower end of the scale.  She simply assisted her husband on one occasion by bringing the wraps.  In those circumstances, we agree that the detriment is at the very lower end of the scale, given her personal characteristics which we have described.  What is said here is that the applicant wishes to remain in Jersey only until her husband's release in December 2007.  She accepts that when he is deported she and her child will go with him, but she wishes to bring her mother and daughter to the Island for the remaining period of the husband's sentence.  She has accommodation and employment arranged.  She believes that now that her daughter is three it is vital for the daughter's well being to maintain and indeed develop regular contact between the child and her father.  Although initially any contact with the father might have to be in prison, he will become eligible for day release from May onwards and for temporary home release from July onwards.  In those circumstances, if such release is granted, there is a real prospect of meaningful and material contact between the child and her father.  As we say, in December the whole family would then return to Madeira when the husband is released and deported.

10.      We recognise that we are sitting as a Court of Appeal, not as a Court of first instance, and we must not substitute our own views simply because that is what we might have done had we been sitting at first instance.  Nevertheless, by a majority, the Court has concluded that in the very unusual circumstances of this case, given the low level of detriment caused by the applicant's continued presence, and the likelihood that she will only be here until December in any event, and taking into account the interests of the child in the way we have described, we consider that the recommendation to deport was disproportionate.  Accordingly we grant leave to appeal, we allow the appeal, and we quash the recommendation for deportation.

Authorities

AG v De Carvalho and Ors [2007] JRC 051.

R v Hikmet Bozat [1996] 1 Cr App R(S) 270.

Samaroo v Secretary for State for Home Department [2001] EWCA Civ 1139.

AG v Abreu [2007] JRC 081.