Jersey Unreported Judgments

[2010]JRC070

ROYAL COURT

(Samedi Division)

1^st April 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle, Le Breton, Clapham, Liddiard, Fisher and Marett-Crosby.

The Attorney General

-v-

Matthew Vernon Marett Burrow

Helia Filipe Pires Da Silva

Antonio Fernando Gaspar Ramalho

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 27^th November, 2009, following guilty pleas to the following charges:

Matthew Vernon Marett Burrow

1 count of:	Conspiracy to fraudulently evade 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:	Breaking and entry and larceny (Count 3).

Age:  29.

Plea: Guilty.

Details of Offence:

Counts 1 and 4

Ramalho was the organiser and principal behind a conspiracy to import approximately 25 grams of heroin for his own personal use.  He paid for and provided funds to Burrow and Da Silva for them to go to England to meet a contact known to Burrow who had then supplied the drugs.  Ramalho did not trust Burrow with the funds and, therefore, Da Silva was sent as a "minder" for the funds.  The plan was for Burrow/Da Silva to bring the heroin back via France.  As they did not have their passports they could not undertake this part of the conspiracy.  Ramalho, therefore, travelled to the UK and met up with Burrow and Da Silva, took possession of the heroin and travelled back to Jersey via France.  He contacted a fisherman known to him (Mr Eagle) and arranged for Mr Eagle to collect him from Carteret.  Ramalho was arrested by French authorities and found to be in possession of 24.73 grams of heroin and 3.71 grams of crack cocaine.  The fisherman (Mr Eagle) was released without charge by the French authorities.  He was subsequently charged and appeared on Indictment with the co-accused but pleaded not guilty and then after a convoluted procedural history was acquitted by a majority verdict of the Jury. 

Burrow and Da Silva were arrested and eventually made admissions.  Ramalho was arrested upon his return to Jersey and again made admissions.  He contended that the importation was for his sole personal use which the Crown accepted as the factual basis for his guilty plea. 

Despite Burrow's denial that he had ever touched the package found concealed internally within Ramalho, Burrow's DNA was subsequently found on the packaging. 

The Crown took the starting point for Burrow and Da Silva of 8 years' imprisonment and a starting point of 9 years for Ramalho.  The heroin had a wholesale value in the region of £5,000 and a street value of £25,000.  The crack cocaine had a street value of between £900 and £950.

Burrow only - Count 2

Burrow whilst under investigation for Count 1 broke into and entered a friend's house and stole a set of golf clubs and a bag.  The golf bag and one club were recovered but the remaining clubs were never recovered.  Burrow admitted committing the offence and claimed that he thought the owner as a friend would not mind if he used his clubs. 

Details of Mitigation:

The Crown

Guilty plea entered on Indictment and co-operative.  Not of good character but record limited.  The Crown took into account the question of delay to the trial of the co-accused, Mr Eagle.  The Crown sought a consecutive sentence in relation to the breaking and entry offence. 

Defence

Limited role so as to make an introduction.  The purpose of the transaction was for Ramalho to get heroin for personal use.  Limited benefit to Burrow.  A drugs "blow-out" in the UK.  No profit for Burrow.  Not trusted with the money.  Not asked to undertake the importation until he was in the UK.  He then refused.  No issue was taken on the starting point.  Emphasised guilty plea and co-operation with the police and the delay.  Had good work record and previous sporting achievements.  It was suggested greater allowance for mitigation should be made in the Crown's conclusions. 

Previous Convictions:

Possession of cannabis and motoring offences.

Conclusions:

Count 1:	Starting point 8 years' imprisonment.  4 years' imprisonment.
Count 3:	6 months' imprisonment, consecutive

Total:  4 years and 6 months' imprisonment.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

These three defendants are all heroin addicts.  Ramalho was told that he could purchase heroin in the UK cheaper than in Jersey. 

Burrow had contact and agreed to go with Da Silva and to purchase heroin in the UK for Ramalho.  Ramalho gave £2,500 to Da Silva as he did not trust Burrow.  Just under 25 grams of heroin was purchased together with a quantity of crack cocaine.  Ramalho took the drugs and sought to smuggle them in via Carteret with the assistance of a fisherman by boat.  Stopped by French authorities and drugs discovered.  The defendants were charged on the 26^th September, 2008.  The Court set out the background to the delays which had arisen in relation to the fourth co-conspirator's trial.  The three defendants had served 2 years and 3 months already and the Court noted that there was a substantial delay and took this into account. 

The Court considered the starting point.  Heroin to be imported for personal use.  This was a matter of mitigation rather than any impact on starting point.  The case of Shahnowaz-v-AG [2007] JLR 221, made the position clear.  The 25 grams to be imported fell within the 8-10 band in Rimmer-v-AG [2001] JLR 373.  Ramalho was the most involved and, therefore, the Court took a 9 year starting point.  The appropriate starting point for Burrow and Da Silva was one of 8 years.  Burrow also to be sentenced for an offence of breaking and entry. 

The Court noted guilty plea.  He had one previous conviction.  He had remained drug free in prison.  Took into account the delay.  He was less involved than Ramalho. 

Count 1:	Starting point 8 years' imprisonment.  3 years' imprisonment.
Count 3:	6 months' imprisonment, concurrent.

Total:  3 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Helia Filipe Pires Da Silva

1 count of:

Conspiracy to fraudulently evade 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:  23.

Plea: Guilty.

Details of Offence:

See Burrow above.

Details of Mitigation:

The Crown

Guilty plea entered on indictment and co-operative with the police.  Made full and detailed admissions.  Previous convictions but unrelated to drugs.  An admitted heroin addict.  Offences out of character.  Allowance made for delay. 

Defence

The Crown sought a recommendation for deportation.  The defence suggested that starting point was too high due to her limited role.  She was effectively babysitting the money.  7 year starting point suggested.  Greater credit should be provided for her mitigation.  Emphasised guilty plea, co-operation.  Drugs for personal use for Ramalho.  She was immature at the time of the offence and had a difficult upbringing.  Remorse for her involvement.  Positive plans for the future and using time in custody positively.  Has support of family.  Greater deduction for the delay.  It was contended that the test not applicable to her in relation to recommendation for deportation. 

Previous Convictions:

Common assault x 2.

Conclusions:

Count 1:

Starting point 8 years' imprisonment.  4 years' imprisonment.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

These three defendants are all heroin addicts.  Ramalho was told that he could purchase heroin in the UK cheaper than in Jersey. 

Burrow had contact and agreed to go with Da Silva and to purchase heroin in the UK for Ramalho.  Ramalho gave £2,500 to Da Silva as he did not trust Burrow.  Just under 25 grams of heroin was purchased together with a quantity of crack cocaine.  Ramalho took the drugs and sought to smuggle them in via Carteret with the assistance of a fisherman by boat.  Stopped by French authorities and drugs discovered.  The defendants were charged on the 26^th September, 2008.  The Court set out the background to the delays which had arisen in relation to the fourth co-conspirator's trial.  The three defendants had served 2 years and 3 months already and the Court noted that there was a substantial delay and took this into account. 

The Court considered the starting point.  Heroin to be imported for personal use.  This was a matter of mitigation rather than any impact on starting point.  The case of Shahnowaz-v-AG [2007] JLR 221, made the position clear.  The 25 grams to be imported fell within the 8-10 band in Rimmer-v-AG [2001] JLR 373.  Ramalho was the most involved and, therefore, the Court took a 9 year starting point.  The appropriate starting point for Burrow and Da Silva was one of 8 years.  Burrow also to be sentenced for an offence of breaking and entry. 

She was aged 22 at the time and the Court agreed with counsel that less involved than co-accused Burrow.  Similar mitigation of guilty plea, personal use, positive use in prison etc.  If the Court had been minded to impose custodial sentence then it would have been 2½ years.  However, there was a recommendation for a Treatment Order and the Court concluded that her best chance of not returning before the Court was to address her heroin addiction.  In reaching that decision had taken into account the period she had spent already on remand which was a substantial period. 

Count 1:

Starting point 8 years' imprisonment.  A 12 month Probation Order plus a 12 month Treatment Order.

Advised she would have to comply with Probation and Alcohol and Drugs Service and submit to random drug testing.  If she refused or failed than she would be brought back to Court and would more than likely go to prison. 

The Court found that her presence was detrimental given her involvement in drugs.  However, a recommendation would be disproportionate.  Given warning that if she was to re-offend then would be at real risk of facing such a recommendation. 

No recommendation for deportation made. 

Forfeiture and destruction of drugs ordered. 

Antonio Fernando Gaspar Ramalho

1 count of:	Conspiracy to fraudulently evade 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:	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:  42.

Plea: Guilty.

Details of Offence:

See Burrow above.

Details of Mitigation:

The Crown

Guilty plea entered on first appearance in the Magistrate's Court.  Treated as a man of good character and admitted being a long term heroin addict.  Co-operative in interview.  Importation for personal use.  Allowance made for delay. 

Defence

Contended that greater allowance should be made for the mitigation from the 8 year starting point.  Guilty plea, fully co-operative and admissions.  Entitled to a full one third, personal use for drugs, general good character and the issue of delay.  Accepted risk of deportation but argued first offence and, therefore, should be given a chance.  He and his wife had made their family home here and the children in education.  Deportation would be disproportionate. 

Previous Convictions:

Speeding.

Conclusions:

Count 1:	Starting point 8 years' imprisonment.  5 years' imprisonment.
Count 4:	9 months' imprisonment, concurrent.

Total:  5 years' imprisonment.

Forfeiture and destruction of drugs sought.

Confiscation Order in the nominal sum of £1 sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

These three defendants are all heroin addicts.  Ramalho was told that he could purchase heroin in the UK cheaper than in Jersey. 

Burrow had contact and agreed to go with Da Silva and to purchase heroin in the UK for Ramalho.  Ramalho gave £2,500 to Da Silva as he did not trust Burrow.  Just under 25 grams of heroin was purchased together with a quantity of crack cocaine.  Ramalho took the drugs and sought to smuggle them in via Carteret with the assistance of a fisherman by boat.  Stopped by French authorities and drugs discovered.  The defendants were charged on the 26^th September, 2008.  The Court set out the background to the delays which had arisen in relation to the fourth co-conspirator's trial.  The three defendants had served 2 years and 3 months already and the Court noted that there was a substantial delay and took this into account. 

The Court considered the starting point.  Heroin to be imported for personal use.  This was a matter of mitigation rather than any impact on starting point.  The case of Shahnowaz-v-AG [2007] JLR 221, made the position clear.  The 25 grams to be imported fell within the 8-10 band in Rimmer-v-AG [2001] JLR 373.  Ramalho was the most involved and, therefore, the Court took a 9 year starting point.  The appropriate starting point for Burrow and Da Silva was one of 8 years.  Burrow also to be sentenced for an offence of breaking and entry. 

They took Ramalho first as he was the most involved.  Guilty plea from outset.  Drugs for personal use.  No previous convictions.  Good work references and took account of the delay.  The Court accepted defence submissions that from a starting point of 9 years with a full one third discount reduced the sentence to 6 years and greater allowance then needed to be made than had been provided by the Crown for the other mitigating factors of personal use, good character and delay.  The sentence to be imposed on Ramalho:-

Starting point 9 years' imprisonment.

Count 1:	4 years' imprisonment.
Count 4:	3 years' imprisonment, concurrent.

Total:  4 years' imprisonment.

Forfeiture and destruction of drugs ordered.

Confiscation Order in the nominal sum of £1 made.

Deportation

The Court had no doubt that continued presence was detrimental.  Those who are involved in dealing in Class A drugs are likely to be found to be detrimental to the community.  However, the Court was in no doubt that recommendation would be disproportionate to daughters and family.  By Ramalho's conduct he had placed himself at risk of deportation.  Should he re-offend then he would be at a very real risk of a recommendation for deportation. 

No recommendation for deportation made.

J. C. Gollop, Esq., Crown Advocate.

Advocate N. S. H. Benest for Burrow.

Advocate A. J. Clarke for Da Silva.

Advocate E. L. Jordan for Ramalho.

JUDGMENT

THE BAILIFF:

1.        The three defendants in this case are all heroin addicts.  Ramalho wished to purchase heroin in the United Kingdom where it is cheaper.  Burrow had contacts and therefore it was agreed that Burrow and Da Silva would go to England and buy the heroin for Ramalho.  Ramalho gave them £2,500; the money was given to Da Silva because Ramalho did not trust Burrow.  Burrow and Da Silva used the money to buy 25 grams of heroin, Ramalho then came over, took delivery of the heroin and sought to smuggle it back in a boat from Carteret but fortunately he was stopped by French customs. 

2.        The defendants were charged as long ago as 26^th September, 2008, and they have been in custody ever since.  The delay was largely because of the need to try an alleged fourth co-conspirator who had pleaded not guilty.  That trial was originally due to be heard in August 2009 but the Prosecution elected to argue that it should be before Jurats rather than a Jury because of a change in the Law; that matter took a while to resolve in relation to another case which impacted upon this; following that there was a problem over his counsel.  The trial finally took place at the beginning of March 2010, with the result being an acquittal.  Therefore the defendants have already served the equivalent of a sentence of 2 years and 3 months.  This is clearly a substantial delay and the Court proposes to take it into account.

3.        We must consider first the starting points.  The fact that the heroin was to be for Ramalho's personal use is a matter of mitigation rather than a matter in relation to the starting point, as determined in the leading case of Shahnowaz-v-AG [2007] JLR 221.  24 grams is at the lower end of the 20-50 gram bracket in Rimmer-v-AG{2001] JLR 373 which has a starting point of between 8 and 10 years.  Ramalho was clearly the most involved because he organised this for his benefit.  We therefore take a starting point of 9 years in his case and a starting point of 8 years in relation to the other two defendants.  We should add that Burrow also has to be dealt with for an offence of breaking and entry. 

4.        We are now going to deal with each of the defendants in turn and we are going to take Ramalho first as he was the most involved.  He pleaded guilty from the outset; we must take into account that the drugs were for personal use; he has no previous convictions; he has a very good work record with many references and letters; and we must take into account the delay.  We very much understand the basis on which Advocate Jordan put forward her submissions.  If one takes a starting point of 9 years and allows a full discount for mitigation, one arrives at a period of 6 years.  There is then the remaining mitigation to be taken into account which includes the personal use, his good character, the delay and the other mitigation available. 

5.        On the Crown's conclusions all of that only comes to 1 year.  We think that is insufficient.  We agree with the proposition put forward by Advocate Jordan. 

6.        The sentence on Count 1 in your case will be one of 4 years' imprisonment and on Count 4; 3 years' imprisonment, concurrent, making a total of 4 years' imprisonment. 

7.        We then turn to the issue of deportation.  We have no doubt that the defendant's continued presence in the island is detrimental.  Those who dabble in offences of this nature in relation to Class A drugs are likely to be found to be detrimental to Jersey by their continued presence.  However, we must then go on to consider whether deportation would be proportionate having regard to the right to private life and any other relevant Convention rights.  We are in no doubt it would not be proportionate to recommend deportation in this case.  There would be a dramatic effect on the two daughters about whom we have heard and read, there would be a dramatic effect on the family generally, this was a first offence and the drugs were for personal use.  Taking all those matters into account we think it would be disproportionate to recommend deportation so we are not going to do so.  But Mr Ramalho you must realise that by your conduct you placed yourself at risk of being deported and should you re-offend when you are released then you will certainly be at risk of being deported on a future occasion, so I hope very much that you understand that. 

8.        We will turn next to Burrow.  He also pleaded guilty, he has one previous conviction for possession of cannabis, he has been in regular employment until July 2007, it is clear that he has been drug free in prison and appears to have seen the depth of his involvement in the drugs scene and how he needs to avoid that in future.  We also of course, in his case, take into account the fact that the drugs were for personal use and that there has been delay.  His involvement is less than that of Ramalho and therefore we think that the right sentence overall is as follows:- on Count 1; 3 years' imprisonment, on Count 3; 6 months' imprisonment, that would normally be consecutive but in all the circumstances, as a matter of mercy, we are going to make it concurrent; so that is a total of 3 years' imprisonment. 

9.        Finally we come to Da Silva who was only 22 at the time.  We agree with her counsel that she was the least involved and therefore her sentence should be less than that of Burrow.  She has many of the same matters of mitigation in terms of delay, personal use, pleading guilty and other matters.  We have also had regard to the various reports.  Had we thought a prison sentence was the right sentence, we would have imposed one of 2½ years.  However, there is a recommendation from Mr Gafoor that a Treatment Order would be appropriate and we think that the best chance of Miss Da Silva avoiding coming before the courts again is if her heroin dependency can be addressed.  We think therefore she would benefit from assistance and we think that her lesser involvement enables us, exceptionally, to proceed in that way, particularly bearing in mind that she has already served the equivalent of 2 years' and 3 months' imprisonment and has therefore been substantially punished.  So what we are going to do in your case is we are going to make a Probation Order for 12 months' coupled with a Treatment Order.  That means that you must attend the probation service as directed but you must also attend the alcohol and drug service as directed and you will be subject to random testing and you must comply with all the instructions which they give.  Should you refuse to do so or fail to do so, then you will be brought back here and you will be sentenced for this offence, in which case we would have to send you back to prison.  So that is the sentence, a 12 month Probation Order and a 12 month Treatment Order. 

10.      In your case, similarly, we do think that your presence here is detrimental for the same reasons as in relation to Burrow but again we think it would be disproportionate to recommend deportation and therefore we are not going to.  But again, you must realise that if you re-offend then you may have had your chance and you may find yourself being deported then. 

11.      We order the forfeiture and destruction of the drugs. 

Authorities

Rimmer-v-AG [2001] JLR 373.

Shahnowaz-v-AG [2007] JLR 221.

Camacho-v-AG [2007] JLR 462.

R-v-Nazari (1980) 3 All E.R. 888.