Jersey Unreported Judgments

[2008]JRC195

ROYAL COURT

(Samedi Division)

13^th November 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Brocq, Allo, Clapham, King and Newcombe.

The Attorney General

-v-

Jose Amaldo Da Neves Hilario

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Superior Number on 19^th August, 2008, following a guilty plea to the following charges:

First Indictment

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

Age:  28.

Plea: Guilty.

Details of Offence:

Note - Hilario had been due to be sentenced on 19^th August, 2008, with his co-accused Jorge De Gouveia, Maria Da Silva, Sandra Pereira and Alfred Viveiros.  However, his case was adjourned after he took issue with the Crown Summary on that date.  His objections were later withdrawn.

Count 3: Between 14^th and 21^st January, 2008, Hilario supplied Jose Avelino Rodrigues and Joao Fabio Viveiros with approximately 2 grams of heroin.  Hilario said that he had done this for payment for his co-accused Jorge De Gouveia.

Count 4: On 21^st February, 2008, Police Officers observed De Gouveia handing a quantity of cash to Hilario at a St Helier newsagents.  Hilario was then followed to the Airport.  On the way there he stopped outside the Mermaid Tavern where he made telephone contact with a contact in Madeira to check on the progress of co-accused Da Silva, who was travelling from Madeira to Jersey by plane.  Hilario then drove to the Airport to wait for her.  Once Da Silva had got through Customs, she met Hilario outside, weherupon they were both arrested.  Da Silva was searched and found to be carrying a total of 227 grams of heroin, with a street value of £227,000.

During later Police searches, €1,900 (the money given to him be De Gouveia) was seized.  When questioned, Hilario admitted inter alia, knowing that Da Silva was carrying drugs, although he said that he did not know the amount.  He said that he had agreed to collect her from the Airport, take her into St Helier and give her the €1,900 as her fee.  Hilario had agreed to do this for De Gouveia who had promised him payment for his role in the enterprise.

Hilario was not a drug addict.  He was, however, unemployed with debts to pay and became involved in the importation and supply of heroin purely for monetary gain.  This was not only a serious case of involvement in the importation of a large commercial amount of a Class A drug, but Hilario had also helped in the supply and distribution of lesser amounts of heroin to 'smaller' local dealers who were supporting their own habits.

Details of Mitigation:

Early guilty plea and co-operation with Police.  Remorse.  His lack of education meant he had a below average ability to foresee the consequences of his actions.  He had undertaken English courses in order to secure employment.  Previous good character and no previous convictions.  Low risk of re-offending save for possibility of future drug related matters.  He had had a difficult childhood,

Previous Convictions:

None.

Conclusions:

Count 3:	3 years' imprisonment.
Count 4:	6½ years' imprisonment, concurrent.

Total: 6½ years' imprisonment.

Confiscation order in the sum of £1,366.91 sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Starting point 12 years' imprisonment.

Count 3:	3 years' imprisonment.
Count 4:	6 years' imprisonment, concurrent.

Total: 6 years' imprisonment.

Confiscation order in the sum of £1,366.91 made.

Recommendation for deportation made.

The Court made the observation that they viewed as an aggravating feature the fact that Hilario's involvement had been for pure monetary gain.  Further, the Court observed that the guidelines as set out in Rimmer were not a 'mathematical model' and the reduction of a starting point did not necessarily equate to a similar reduction in the overall sentence.

Hilario's case needed to be read in conjunction with that of his co-accused on 19^th August, 2008.  The Court viewed Hilario's role as less significant then De Gouveia's and therefore assessed the starting point for Hilario as being 12 years, rather than 13 years which the Crown had moved for.

The Court concluded by a majority that Hilario's presence in the Island would be detrimental to its interests, noting that he had no dependents in Jersey.

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. Nicolle for the Defendant.

JUDGMENT

commissioner:

1.        The defendant was not sentenced with his co-accused on the 19^th August, 2008 so as to allow his counsel to check the accuracy of certain parts of the translation of his police interview.  This Judgment therefore needs to be read in conjunction with the Judgement of the Court of the 19^th August, 2008 (JRC139) in which his co-accused were sentenced.  We will not repeat the facts set out in that Judgment other than to highlight the defendant's role in the importation of 227 grams of heroin carried into the island by Da Silva.  His task was to meet Da Silva at the airport, give her 1900 euros in cash, her fee for acting as courier, and to deliver her and the drugs to St. Helier.  Although the defendant has a good work record he had been unemployed prior to these offences and had become involved in the drugs trade through De Gouveia, who had paid him to make deliveries of some 50 bags of heroin comprising approximately 2 grams to which Count 3 relates.  Following this he was asked by De Gouveia to collect Da Silva and thereby assist in the importation to which Count 4 relates.  His motivation was economic, namely to clear debts.

2.        The Crown seeks a starting point of 13 years which is the same starting point sought and agreed by the Court in the case of De Gouveia.  Whilst we accept that the total amount of heroin involved, 229 grams, puts the starting point at the higher end of the band set out in Rimmer which is 10 to 13 years for 100-250 grams of heroin, we regard the role and involvement of the defendant in the drugs trade as being less than that of De Gouveia.  He is further down the ladder in the chain of command.  As the role and involvement of the defendant in the drugs trade is one of the principle factors to be taken into account in assessing the starting point, we think there should be a differential between the defendant and De Gouveia.  Accordingly we set the starting point at 12 years. 

3.        In terms of mitigation the defendant still has an element of residual youth to his credit, he was co-operative with the authorities and entered an early guilty plea.  He is a man of good character having no previous convictions and is assessed as being at a low risk of re-offending.  He has a good work record.  We have had regard to the reports, to the references written on his behalf and his own letter expressing remorse. 

4.        Making our own assessment of the mitigation we conclude that the appropriate sentences are as follows, Count 3; 3 years' imprisonment, Count 4; 6 years' imprisonment, concurrent, making a total of 6 years' imprisonment. 

5.        We turn now to deportation and we have applied our minds to the well established tests as summarised by the Crown.  We conclude by majority that the defendant's continued presence is detrimental to the interests of the Island because of his involvement in supplying heroin locally and because of his involvement in importing this very large quantity of heroin into the island.  The defendant has no family or dependants in the Island and his deportation would not therefore cause hardship to innocent persons and although he has expressed a desire to remain here that desire is outweighed by the interests of the Island. 

6.        Therefore by majority, we recommend his deportation.

Authorities

AG v De Gouveia [2007] JRC 139.

Rimmer and Others-v-AG [2007] JLR 373.

Whelan on Aspects of Sentencing.

AG v Rodrigues and Viveiros [2008] JRC 109.