Jersey Unreported Judgments

[2007]JRC220

ROYAL COURT

(Samedi Division)

26^th November 2007

Before     :

F.C. Hamon, Esq., O.B.E. Commissioner, and Jurats Le Brocq, Bullen, Le Breton, King, Newcombe and Liddiard.

The Attorney General

-v-

Duarte Nuno Gomes Da Silva

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

1 count of:

Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978.  (Count 1).

Age:  42

Plea: Guilty.

Details of Offence:

Over the course of a year supplied 100 grams of heroin with a street value of £100,000.  He was selling for a principal to whom he returned the sale proceeds.  His reward was a small supply of heroin for personal use.  He sold to the same circle of friends and acquaintances throughout.

Details of Mitigation:

Guilty plea valuable; but for admissions the main part of the offending would not have been known.  Weaned off heroin while in prison; good employment record; low risk of re-offending; support from brother living locally.  Lived in Jersey for 11 years; had nephews and a circle of friends here; previous good character.  Deportation would be disproportionate.

Previous Convictions:

Nil (Parish Hall cautions for non drugs matters but regarded as a man of good character).

Conclusions:

Starting point 11 years' imprisonment.

Count 1:

6 years' imprisonment.

Recommendation for deportation sought.

Forfeiture and destruction of drugs sought.

(Confiscation hearing postponed for 3 months).

Sentence and Observations of Court:

Starting point 11 years' imprisonment.

Count 1:

5 years' imprisonment.

Recommendation for deportation made.

Forfeiture and destruction of drugs ordered.

C. E. Wheelan, Esq., Crown Advocate.

Advocate H. J. Heath for the Defendant.

JUDGMENT

THE Commissioner:

1.        Commissioner Clyde-Smith has already ruled in law on certain admissions given in interview with the police and, in a detailed Judgment delivered on 21^st November, ruled that any admissions made in police interview were not to be excluded for the purpose of sentencing.

2.        Da Silva is charged with supplying heroin between 1^st March, 2006 and 14^th February, 2007.  The supply has been on a regular basis and at least 100 grams were supplied over this period with a street value of some £100,000.  He is 42 years old and has lived in Jersey for 11 years.

3.        He was arrested with another man on 18^th April of this year.  As the officers closed in, the man in the car swallowed a plastic wrap and £50 cash was found in the car.  The driver has been convicted of possession of heroin.

4.        A search of Da Silva's bedsit revealed £1,000 in a safe, £250 in a bedside drawer, two mobile phones and a number of SIM cards.  A large number of calls had been made to and from two convicted drug dealers, Victoriano Gomes and his wife Tania (they were arrested on 16^th February).

5.        Da Silva made very full admissions and the Crown has referred to the guidelines of the Court of Appeal in Rimmer, Lusk and Bade v AG [2001] JLR 373.  The Crown has considered the sentences passed on Victoriano Gomes and his wife on 3^rd July, 2007 and we have studied that Judgment most carefully.  It is clear from Rimmer that defendants who traffic 100-250 grams of heroin come within the starting point of 10-13 years' imprisonment.  The Crown has taken a starting point of 11 years.  We have thought long and hard about this matter and Advocate Heath felt that 10 years was more appropriate, but we still feel that 11 years is the right starting point for this particular case.

6.        The Crown has stated that there are many grounds of mitigation; his guilty plea and the significant admissions that he made in interview are most important.  It appears that despite being supplied with some 22 bags by Mr and Mrs Gomes he would merely take 2 bags for his own use and then sell 20 bags to a circle of his friends and return the cash proceeds to Mr and Mrs Gomes.  Crown Advocate Wheelan, who has presented this prosecution, has said that the way that the Gomes' were treated is not relevant and we agree with that.

7.        Advocate Heath, who is to be congratulated on the way she has put the defence, has made several strong points in mitigation.  Da Silva made his guilty plea very early and made very strong admissions to the police, who would have had, in our view, great difficulty on the matter had it come to trial on a not guilty plea.  He has no previous convictions whatsoever, he has apparently been clean of drugs during his 8 months in prison, he has apparently a good work record.  Against this there is the supply of a dangerous drug to addicts over a long period of time and he must have been under observation when the police moved in.  But it is his admissions that have led to this present charge and accordingly we are able to reduce the sentence to one of 5 years' imprisonment.

8.        We now come to whether we should recommend deportation once the sentence is completed.  We are invited to make a recommendation under section 6(1) of the Immigration Act 1971 as extended to Jersey.  According to De Sousa v AG [2004] JLR N21 the Royal Court found that this Court must have regard not only to the family life of the offender under Article 8 of the European Convention of Human Rights and we agree with the comments made by the learned Deputy Bailiff in De Carvalho v AG [2007] JRC 087 that there is no place in this island for people who deal in or import Class A drugs which only serve to damage people within the Island.  We accept that he is, according to the Probation Service, at a low risk of re-offending.  However some of his assertions to the Drug and Alcohol Service were surprising, for instance that he had never had children, whereas one knows that he has a 20 year old son in Madeira.  We have of course considered the very detailed Judgment of the Jersey Court of Appeal in Camacho v AG [2007] JCA 145.  The Court has expressed the matter well in its very detailed Judgment on deportation when it says:

"Although the Applicant is a Portuguese national (i.e. a national of a member state of the EU) the power to deport him by the Jersey authorities does not depend....on community law instruments i.e. Directive 2004/38/EC [repealing Directive 64/221/EEC], which confers on citizens of the EU and their families enhanced rights to reside within the territory of Member States, and limits the power of deportation (expulsion) on public policy grounds."

9.        We have to balance the competing interest in this case viewed through what the Court of Appeal said was the prism of Article 8 of the ECHR.  We must have regard to the family rights of the offender as well as those of his family.  His letter is surprising.  He says:

 "In the ten years I was here my life changed for the best and I felt strong in myself.  I decided that it was time to go back to Madeira to build a life for myself there and  to be with my family."

That, of course, came to nothing.  We have read all the letters sent to us most carefully, but in the circumstances we recommend deportation and we make that order.

10.      We order forfeiture and destruction of the drugs.

Authorities

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

Immigration Act 1971.

De Sousa v AG [2004] JLR N21.

European Convention of Human Rights.  Article 8.

De Carvalho v AG [2007] JRC 087.

Camacho v AG [2007] JCA 145.