Jersey Unreported Judgments

[2007]JRC129

ROYAL COURT

(Samedi Division)

3^rd July 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle, Le Breton, Allo, King, Le Cornu and Newcombe.

The Attorney General

-v-

Vitoriano Sousa Gomes

Maria Celeste Mendes

Joao Flavio Gomes Mendes

Tania Maria Gomes

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

Vitoriano Sousa Gomes

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.  (Count 1).

Age:  33

Plea: Guilty.

Details of Offence:

On 16 February 2007, Vitoriano Gomes and his mother-in-law, Maria Mendes, flew to Jersey from Madeira.  Maria Mendes was carrying two packages containing a total of 209 grams of heroin.  The importation had been organised and financed by Vitoriano Gomes who purchased the drugs.  He later instructed his mother-in-law to carry the drugs internally on the flight to Jersey.  209 grams has a street value of around £209,000.

Details of Mitigation:

Guilty plea.  Good character.  Suggestible.  Remorseful.  Young daughter.

Previous Convictions:

Minor motoring convictions - to be considered of good character.

Conclusions:

Vitoriano Gomes was the organiser and financier of the importation.  He played an important role in Jersey and in Madeira.  He used his mother-in-law to carry the drugs into the island.  The quantity of heroin was substantial.

The defendant pleaded guilty and has shown remorse.

Starting point 12 years' imprisonment.

Count 1:

6 years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommended for deportation.

Sentence and Observations of Court:

Court confirmed it was sentencing him only for this one importation and not for any suggestion of involvement in other drugs offences.  Court took into account his guilty plea and good character and psychological report which stated that he was easily misled and genuinely remorseful.

Conclusions granted.

Maria Celeste Mendes

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.  (Count 1).

Age:  54

Plea: Guilty.

Details of Offence:

See Vitoriano Sousa Gomes above.

Details of Mitigation:

Guilty plea.  Fully co-operative with police.  Good character.  Extremely remorseful.  Numerous character references.  Low risk of re-offending.

Previous Convictions:

None.

Conclusions:

Maria Mendes concealed the heroin and carried it into the island.  She stated that she thought it was steroids but she acknowledged that she knew that it was illegal in any event to import these into the island.

The defendant was carrying out the importation under the instruction of her son-in-law.  Her good character, guilty plea and co-operation with the police should be taken into account, as well as her willingness to give evidence.

Starting point 10 years' imprisonment.

Count 1:

4½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommended for deportation.

Sentence and Observations of Court:

Court accepted that she had been very co-operative with the police and offered to give a witness statement.  Court stated that a mistaken belief as to the nature of the drug was not a mitigating circumstance as it is too easy to say she didn't know what the drugs were and too hard to disprove this.  The consequence on the community of her bringing in steroids and bringing in heroin would be the same in any event and therefore this was not a relevant mitigating factor.  Court took into account her age, good character and clear remorse.  Her mitigation was powerful and exceptional and the Court considered a non-custodial sentence very carefully.

Starting point 10 years' imprisonment.

Count 1:

3½ years' imprisonment.

Forfeiture and destruction of drugs ordered.

Recommendation for deportation.

Joao Flavio Gomes Mendes

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.  (Count 1).
1 count of:	Possessing certain property, knowing or having reasonable grounds to suspect that the property is in whole or in part, or directly or indirectly represents another person's proceeds of drug trafficking, contrary to Article 38 (1) of the Drug Trafficking Offences (Jersey) Law 1988 (Count 2).

Age:  19

Plea: Guilty (Count 2).  Not Guilty (Count 1) - plea accepted.

Details of Offence:

On 6 February 2007 Joao Mendes flew to Madeira with 10,000 Euros to give to his brother-in-law, Vitoriano Gomes, knowing that this money was the proceeds of dealing in heroin.

10,000 Euros is approximately £6,500, which represents 6.5 grams of heroin at street prices.

Details of Mitigation:

Guilty plea.  Youth and genuine signs of remorse.  Co-operative with police to the extent that he had telephoned from Madeira to offer to come to Jersey to surrender himself and wrote his own indictment.

Previous Convictions:

Common assault and minor motoring offences.

Conclusions:

The defendant was carrying a significant sum which he knew to be the proceeds of drug trafficking.  The Court should consider the predicate offence and the amount of money laundered and starting points for dealing in that amount of heroin (using street price to give the defendant the benefit of the doubt).  Should consider the purpose for which he had the money in his possession, namely to pass back to his principal to enable the purchase of more heroin.

The defendant was in possession of the money for a limited period.  He handed himself over to the police and made admissions.  His guilty plea and youth should be taken into account.

Starting point 7 years' imprisonment.

Count 2:

3 years' youth detention.

Recommended for deportation.

Sentence and Observations of Court:

Court emphasised that those who handle the proceeds of drug trafficking are as bad as the traffickers.  Court took into account his guilty plea and that he had written his own indictment.  Court also took account of his youth and the Social Enquiry Report and considered a non-custodial sentence, however this was too serious a case.

Starting point 6 years' imprisonment.   

Count 2:

2 years' youth detention, subject to supervision on release.

Recommendation for deportation

Tania Maria Gomes

3 counts of:

Supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 3, 4 and 5).

Age:  30.

Plea: Guilty (Counts 3 and 4).  Count 5 withdrawn - no evidence offered.

Details of Offence:

The Defendant's husband, Vitoriano Gomes, organised an importation of heroin into the island on 16 February 2007, with her mother, Maria Mendes, as the courier.  On four or five occasions between 1 January 2007 and 13 January 2007, whilst her husband was away from Jersey, Tania Gomes supplied heroin on his instructions and collected approximately £7,500 in cash.  The value of the heroin supplied - £7,500 - equates to 7.5 grams using a street price.

Details of Mitigation:

Guilty plea.  No previous convictions.  Assisted police and wrote her own indictment.  Made a witness statement and was prepared to give evidence against her husband.  Named dealer to whom she supplied the drugs.  Sole carer for 9 year old daughter.  Positive letters of recommendation from employer.

Previous Convictions:

None.

Conclusions:

Tania Gomes supplied heroin on four or five occasions at a wholesale level to street dealers.  The total amount supplied was approximately 7.5 grams.

The defendant pleaded guilty and assisted the police from the start.  She was frank in interview, made a witness statement and offered to give evidence for the Crown.  She deserves credit for naming a street dealer.  She is of good character and has shown genuine remorse.  She is the mother of a young daughter.

Starting point 8 years' imprisonment.

Count 3:	3½ years' imprisonment.
Count 4:	3½ years' imprisonment, concurrent.
Total:	3½ years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommended for deportation.

Sentence and Observations of Court:

Deportation considered disproportionate in this case due to detriment to the 9 year old daughter.

The Court found this was an exceptional case and therefore gave a non-custodial sentence.  Court took into account that the defendant had written her own indictment, had assisted the police and named a dealer, and also that there were no satisfactory arrangements in place for the care of her daughter who lives in Jersey.

Starting point: 7 years' imprisonment.

Count 3:	240 hours' Community Service Order, equivalent to 2 years' imprisonment.
Count 4:	240 hours' Community Service Order, equivalent to 2 years' imprisonment.
Total:	240 hours' Community Service Order, equivalent to 2 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Not recommended for deportation.

S. M. Baker, Esq., Crown Advocate.

Advocate D. J. Hopwood for V. S. Gomes.

Advocate J. P. Michel for J. F. G. Mendes.

Advocate R. Tremoceiro for M. C. Mendes.

Advocate M. J. Haines for T. M. Gomes

JUDGMENT

THE DEPUTY BAILIFF:

1.        This case involves, sadly, four members of the same family.  Vitoriano Gomes and Maria Mendes have pleaded guilty to being concerned in the importation of 209 grams of heroin from Madeira.  This occurred in February this year.  Gomes admits to being the financier and the organiser of the importation.  Maria Mendes is his mother-in-law and she agreed at his request to act as a courier concealing one packet of drugs internally and another in her clothing.

2.        We propose to deal first with Gomes.  The Crown has suggested a starting point of 12 years' imprisonment, because this falls within the bracket of 10 -13 years for 100 - 250 grams.  Taking account of his role as the financier and organiser we agree with the starting point of 12 years, and indeed this was not opposed by his counsel.  We should make it clear, however, in relation to Gomes that we have ignored suggestions by some of his co-accused that he may have committed other offences.  We are sentencing Gomes solely for his role in the importation of the 209 grams.

3.        In mitigation Gomes has pleaded guilty and this is clearly of value.  He is of good character and has clearly been hard working.  We have received references and we have read the background report and the psychological report which suggests that he is easily led and carried out these offences to clear some debts.  We also accept that he is remorseful and that he very much regrets having involved his mother-in-law in this offence. 

4.        Nevertheless, allowing for all the matters put forward by your advocate in mitigation we have concluded that the Crown's conclusions are correct and therefore the sentence in your case is one of 6 years' imprisonment. 

5.        As to deportation we would wish to reiterate what this Court said in the case of De Carvalho v AG [2007] JRC 087.  In particular the Court quoted there from the words from the English Court of Appeal in Samaroo v Secretary of State [2001] UKHRR 1150 as follows:

"In my judgment the Secretary of State was entitled to regard Class A drug trafficking offences as very serious and ones that 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 prevent crime and disorder."

As we have said on previous occasions those sentiments apply with equal force in Jersey and therefore those who involve themselves in trafficking of Class A drugs are clearly at very substantial risk of being deported and the Court would normally regard their continued presence in the Island as being detrimental.  In the case of Gomes this is a very serious offence involving over 200 grams.  He is assessed at being low to medium risk of re-offending, but even so we have no hesitation in concluding that his continued presence in the Island is detrimental.

6.        We must then consider the well known second limb which is the rights under Article 8 of the European Convention on Human Rights both of the offender and his family.  Gomes has been in Jersey since he was 16.  He clearly has worked regularly, he is now aged 33.  He has relatives here but most importantly he has a daughter aged 9 here, who he has fathered with the co-accused Tania Gomes.  We have considered very carefully the effect on his relationship with his daughter, but we reiterate that those who commit offences of this gravity must realise the consequences of that which they do.  Balancing the continued detriment to the Island with the effect on the defendant's rights and those of his child we have no hesitation in concluding that it would not be disproportionate to recommend a deportation and we do so recommend.

7.        I am going to deal next with Joao Mendes.  He is 19.  He admits taking 10,000 Euros in cash from Jersey to Mr Gomes in Madeira on 6^th February 2007.  He knew of the proposed importation but not that his mother would be involved and in any event he is not charged with any involvement in the importation. 

8.        The Court has been referred to the case of AG v Fagan [2005] JRC 031 and we have considered the matters set out there.  The Crown has suggested that for the predicate offence of selling heroin to the value of 10,000 Euros which is said, on the most favourable basis, to be about 6½ grams, the starting point would be 7 years.  We agree with the Crown that the starting point would be 7 years, we also agree with the Crown that those who handle the proceeds of drug trafficking are often nearly as bad as those who deal in them.  Indeed in some cases they may be equally responsible or possibly even more so.  Having regard to the particular circumstances of the defendant's offence here we think the correct starting point is one of 6 years' imprisonment.

9.        In mitigation the main mitigation is his age which is 19.  That means that the Young Offenders (Jersey) Law 1994, applies to him.  We take into account his guilty plea, also the fact that he wrote his indictment in relation to this charge.  In other words the police would not have been able to prosecute had he not made voluntary admissions about it right at the start.  We have also considered all the other matters set out in the report and which his Counsel has urged upon us.  We have considered whether this is a matter where we can proceed by way of non-custodial sentence but we are quite satisfied that an offence of this nature dealing with proceeds of this order of drug trafficking of Class A drugs is too serious to be dealt with by way of a non-custodial sentence.  Accordingly we cannot proceed in that way, but we do think we can make greater allowance than was made by the Crown.

10.      The sentence in your case will be one of 2 years' youth detention and I must warn you, you may be liable to supervision on your release. 

11.      In relation to deportation we repeat what we have said about drug trafficking and that applies equally to those who deal with the proceeds of drug trafficking or assist in the dealing of the proceeds.  Furthermore, in your case you do have some previous offences, albeit not very serious and you are assessed as being of medium to high risk of re-offending.  In all the circumstances the Court concludes your continued presence in the Island is detrimental. 

12.      Having regard to the second limb, we of course note your age.  You have two sisters in the Island but you also have siblings in Madeira.  Furthermore your parents, of course, have been in Madeira until recently and will be in Madeira once they are in a position to go there.  You have been in Jersey for some 6 years, but you are single with no dependants and in all the circumstances we think it would not be disproportionate to deport you and, therefore, we recommend deportation in your case.

13.      Tania Gomes, she admits being a form of internal or domestic courier.  In other words she delivered drugs on her husband's behalf to a retail dealer and returned with the cash from the dealer which she gave to her husband.  She admits doing this on some four to five occasions, delivering cash in the region of £1,000 to £2,000 on each occasion. 

14.      Again adopting the basis most favourable to her in terms of value the Crown assesses the amount of drugs involved as being 7.5 grams.  The starting point under the normal guideline for one offence of supplying that amount of drugs would be 7 years.  We accept that in this case the defendant did it on more than once occasion, but her involvement was limited and on the facts as we must sentence her, they were carried out to assist her husband.  In the circumstances we think the correct starting point is one of 7 years.

15.      In mitigation she has pleaded guilty.  She also wrote her own indictment which is an additional matter which goes beyond a guilty plea, because unless she had admitted these matters the police would not have known anything about them.  She is of good character with no previous convictions.  Furthermore, we have received a number of references which show that she is indeed of very good character.  She has been caring for an elderly couple though sadly now only for one of them, the other having died, but there are extremely good references.  She also has, as we have mentioned already, a daughter of 9 and it would seem clear that there are no satisfactory arrangements for looking after her in the event of a custodial sentence.  Most significantly she has given considerable assistance to the police.  Not only did she make immediate admissions and write her own indictment but she made a witness statement in which she was prepared to give evidence against her husband.  She has also given the name of the retail dealer to whom the drugs were supplied and has been willing to acknowledge that in open Court.  The Court has repeatedly said that, where that is the case, substantial additional mitigation can be given, and that is the case here where the Crown accepts the validity of the information given.  We have taken that into account and all the other mitigation that appears in the papers before us.  So, taking all these matters together, we have come to the conclusion that this is an exceptional case and we can exercise an element of mercy.

16.      We, exceptionally, are going to deal with this by way of a non-custodial penalty.  We impose a sentence of 240 hours Community Service and we say that that is the equivalent of 2 years' imprisonment, which is the sentence we would have imposed had we imposed a custodial sentence.  If you do not carry out any of that, or re-offend and come back before us you are bound to go to prison. 

17.      In terms of deportation we conclude that her presence in the Island is detrimental as being involved in drug trafficking of Class A drugs.  However, given the position of the child who was born and brought up in Jersey and has no contacts other than occasional visits to Madeira, we think it would be disproportionate to recommend deportation in her case because of the interests of the child and therefore we do not recommend deportation.

18.      Maria Mendes.   As I have already said she has admitted acting as a courier in the importation of the 209 grams.  The starting point taken by the Crown here is one of 10 years being the bottom of the applicable bracket and we agree that is the correct starting point.

19.      We must consider the mitigation which is certainly very powerful in her case.  She has of course pleaded guilty.  She was immediately co-operative and she too made a witness statement and indicated a willingness to give evidence against Mr Gomes in connection with this importation.  She said that she was under a misapprehension as to what she was carrying.  She thought it was steroid tablets.  We have listened carefully to what has been said in this respect, but the Court has repeatedly said that a mistake as to the nature of the drug being carried is not usually mitigation.  It is too easy to say, too difficult to disprove and of course the consequences to the community of what is brought in depend on what is actually brought in.  We do not think that any mitigation can be allowed in that respect, but significantly she is 54, she is of good character, she has never committed any offence before.  She and her husband have lived in Madeira.  There are a host of references from family, friends and neighbours proving that this is a woman who has offered much during her life and it is tragic to see her in this position today.  She is clearly full of remorse.  It is difficult to understand why she did it but she says she did it in order to help her daughter.

20.      Mr Tremoceiro has urged strongly that we should impose a non-custodial sentence.  The Court has considered this very carefully, but we cannot go along with that suggestion.  This was a most serious offence involving a very substantial quantity of heroin which, if it had got onto the streets of the Island, would have caused enormous damage to the community.  In the circumstances we cannot proceed by way of a non-custodial sentence, notwithstanding the powerful mitigation.  It is powerful and it is exceptional and in the circumstances we can reduce the conclusions.

21.      The sentence in your case is one of 3½ years' imprisonment. 

22.      As to deportation we, for the same reasons as previously, consider her continued presence to be detrimental.  She does not oppose deportation because she intends in any event to go back to Madeira and therefore we do make a deportation recommendation.

23.      Forfeiture and destruction of the drugs is ordered.

Authorities

De Carvalho v AG [2007] JRC 087.

Samaroo v the Secretary of State for Home Department [2001] UKHRR 1150.

European Convention on Human Rights.

AG v Fagan [2005] JRC 031.

Young Offenders (Jersey) Law 1994.