Jersey Unreported Judgments

[2003]JRC074

ROYAL COURT

(Samedi Division)

 

30^th April 2003

 

 

The Attorney General

-v-

Luis Miguel da Silva Antunes;

Sandra Teles Saraiva;

Carlos Jordano Gouveia Viveiros

 

Sentencing by the Superior Number of the Royal Court, to which the defendants were remanded by the Inferior Number on 24^th January, 2003, following guilty pleas as follows:

 

Luis Miguel da Silva Antunes

 

1 count of:

Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: Count 1: diamorphine.

 

Age:     25.

 

Details of Offence:

As regards Saraiva: the two possession charges related to a personal amount of heroin and a personal amount of cannabis found at her flat on the morning of her arrest.  The main offence for which all three were convicted of the more serious offences related to a package containing 142 grams of heroin.  All three defendants were admitted heroin addicts.  A few days before the arrest Viveiros had been visited by an Indian male who urged him to place a package in a hidden location at Noirmont Common.  It was known to Viveiros that the package contained heroin.  There was evidence that Viveiros had been coerced into placing the package in the hidden location since he was injured when he was arrested and he said that his arm had been beaten repeatedly by the Indian with a plastic pipe until he agreed to hide the drugs at Noirmont.  Viveiros was involved in the distribution of drugs generally and a known dealer.  Four or five nights before the date of the arrests Antunes drove Viveiros (who did not have a car) in the company of Saraiva to Noirmont Common.  Once there Viveiros got out of the car and told Saraiva and Antunes to wait in the car.  It was known that he was secreting the drugs somewhere known to him at Noirmont Common.  He then returned to the car and they drove back to town.  A few days later, being the day of their arrest, Viveiros contacted Antunes and arranged for Antunes to drive him to Noirmont Common.  En route they collected Saraiva who had been instructed by telephone to gather together weighing scales, a roll of plastic bags and a piece of glass in order to cut up the heroin and bag it up.  They drove to Noirmont and were pursued by the Police.  When they got there, the Police saw the car parked in a car park at Noirmont and arrested Antunes and Saraiva who were still in the vehicle.  100 yards or so away from the vehicle they apprehended Viveiros who indicated that he had something hidden inside his underclothing.  Inside his underpants was found the package containing the 142 grams of heroin.

It was clear on the facts that Antunes knew that the purpose of the trip to Noirmont was to collect the drugs and it was also clear that he knew that the bag that Saraiva had contained things to do with drugs.  Saraiva was aware of the drugs because she had seen them in her flat earlier in the week, she had previously been on the trip at night a few days before to secrete the drugs, and she was generally aware that Viveiros was involved in dealing drugs.    

 

Details of Mitigation:

On behalf of Antunes it was said that he was a young man with a good record and a good employment record.  He was naïve and immature, resorting to drugs when under stress.  He was not heavily entrenched in drug dealing activities and his involvement was not commercially.  Antunes, it was said, only assisted Viveiros in what he was doing.  Antunes' involvement was because of his addiction to heroin.  In relation to the Crown's request for a Deportation Order it was said that Antunes had lived in Jersey for five years and had only been back to Portugal once for two weeks during that time.  He had a brother living in Jersey for two years.  His girlfriend, who was also from Madeira, had been in Jersey for six years.  He had good prospects to get his job back when he was released from custody and it was said that deportation would be a disproportionate sentence in all the circumstances.     

 

Previous Convictions:

None.

 

Conclusions:

Count 1:

4 ½ years' imprisonment.

Deportation recommended.

 

Sentence and Observations of Court:

Count 1:

12 months' imprisonment

 

The Court refused to make a Deportation Order given that he had a good work record.  It was his first offence and he had a lesser involvement than Viveiros.  He was however warned that if he re-offended again it would be likely that he would be deported.

The Court observed that he drove Viveiros to Noirmont knowing it to be for the purposes of collecting heroin where it was stashed.  The Court observed that his involvement was marginally less than that of Saraiva but the Court held that he had much stronger mitigation in his favour.  He had no previous convictions, had been assaulted in prison, had a good work record, had support as indicated in the Social Enquiry Report and the Drug and Alcohol Report and he appeared to be well motivated to conquer his addiction.  That enabled the Court to impose a notably lesser sentence.        

 

Sandra Teles Saraiva

 

1 count of:	Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: Count 2: diamorphine.
2 counts of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 3: diamorphine. Count 4: cannabis.

 

 

Age:     22.

 

Details of Offence:

See Antunes (above).

 

Details of Mitigation:

On behalf of Saraiva it was said that she was motivated to participate in this crime due to her own addiction.  She had been co-operative with the Police and had pleaded guilty.  She was a heroin addict.  She was very young.  She had suffered ill health whilst at school which hampered her education.  She had the typical chaotic lifestyle with a drug user's inability to help herself even when help was offered.

 

Previous Convictions:

Saraiva had previous convictions for drugs offences.  These included a conviction in February 2002 for producing a controlled drug, for which she received 18 days imprisonment, and permitting her premises to be used for the production, supply and use of drugs.  During 2000 she had twice breached a Probation Order which had been given to her in relation to producing a controlled drug, namely cannabis and also for permitting premises to be used for production/supply/use of drugs. 

 

Conclusions:

Count 2:	5 ½ years' imprisonment.
Count 3:	4 months' imprisonment, consecutive.
Count 4:	1 month's imprisonment, concurrent.

Confiscation order: £163.

 

Sentence and Observations of Court:

Count 2:	2 ½ years' imprisonment.
Count 3:	4 months' imprisonment, concurrent.
Count 4:	1 month's imprisonment, concurrent.

The Court ordered the forfeiture and destruction of the drugs.  The Court held that she was aware that Viveiros had a stash of heroin at Noirmont and noted that she brought the utensils to bag up the heroin on site.  She did not know how much heroin there was.  The Court adopted the principles enunciated by the Court of Appeal in the case of McDonough which made it clear that sentencing guidelines for being concerned in the supplying of a controlled drug were not the same as those in relation to drug trafficking offences generally.  The Court therefore rejected the Crown's submission that Rimmer should be used as the guideline case for offences of this nature.  The Court observed that Saraiva's involvement was less serious than being in possession with intent to supply, but even such limited involvement must lead to a term of imprisonment and the Court endorsed the findings of the English Court in the English case of R -v- Raby.    

 

Carlos Jordano Gouveia Viveiros

 

1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 5: diamorphine.
1 count of:	Possession of a controlled drug, with the intent to supply contrary to Article 6 (2) of the Misuse of Drugs (Jersey) Law, 1978: Count 6: diamorphine.

 

[On 24^th January, 2003, the Defendant's plea of not guilty to count 5 was accepted by the Crown].

 

Age:     23.

 

Details of Offence:

See Antunes (above).

 

Details of Mitigation:

On behalf of Viveiros it was said that he had been forced to secrete the drugs by the Indian who beat him and made him do it against his will.  Viveiros alleged far greater involvement on the part of Saraiva than was being admitted by her.  Viveiros was simply collecting the heroin and returning it to the Indians with no intention of making any commercial gain out of it.  Instead he was avoiding further painful repercussions.  He had been co-operative with the Police and pleaded guilty and had the benefit of residual youth on his side, being only 23 years old.  The defence pointed to his difficult personal upbringing with violence inflicted upon him by his father.  He made efforts to stay clean for the three and a half months after he was released from prison following his previous heroin conviction.  He had also been threatened and attacked in prison. 

As far as the deportation moved for by the Crown, this was resisted but it was conceded that his record was poor and he had been given a chance by the Court on a previous occasion.

 

Previous Convictions:

Viveiros had two relevant convictions: the first dating back to February 1999 for possession of a controlled drug with intent to supply, namely ecstasy, in respect of which he received a Probation Order for one year with 90 hours' Community Service.  In July of that year he breached that Probation Order but it was ordered that it should be continued.  In February 2001 he was convicted by the Royal Court of possessing heroin with intent to supply and received two and a half years' imprisonment.

 

Conclusions:

Count 6:

8 years' imprisonment.

Deportation recommended.

 

Sentence and Observations of Court:

Count 6:

7 years' imprisonment.

Deportation recommended.

The Court observed that he had previous convictions in February 2001 and noted that in the judgment of the Court on that occasion, when he was sentenced to two and a half years for possession of heroin with intent to supply, that he had stated his intention to reform.  The Court however noted that a short period after his release from that term of imprisonment he became involved in drugs again.  The Court held that the correct starting point was ten years but taking into account all of the available mitigation, including guilty plea, his age, his background as stated in the reports, but, balancing that against a poor record, the Court held that a three year discount was sufficient resulting in a term of seven years imprisonment.

As far as deportation was concerned, the Court held that there was no doubt that his continued presence in Jersey was detrimental to the community.  The Court had to balance that detriment with the hardship that would be suffered by Viveiros in being deported.  Given that he had been warned on the last occasion that he would be deported if he re-offended, the Court had no hesitation in recommending deportation once his term of imprisonment had been served.

 

M. St.J. O'Connell, Esq., Crown Advocate.

Advocate J. Bell for L. M. S. Antunes.

Advocate Mrs S.A. Pearmain for S. T. Saraiva.

Advocate J.C. Gollop for C. J. G. Viveiros.

 

 

JUDGMENT

 

 

THE deputy Bailiff:

1.        We will deal first with Viveiros.  On 19^th February, 2001, you were sentenced to two and a half years' Youth Detention for possession of heroin with intent to supply.  At the time the Court was told of your determined efforts to conquer your heroin addiction and reduced the Crown's conclusions.  Sadly, within a short while of your release from Youth Detention in June last year, you started taking heroin again and you have now once again become embroiled in criminality relating to drugs, because you have pleaded guilty to one count of possession with intent to supply some 143 grams of heroin with a street value of between £42,000 and £64,000, depending on how its sold.

2.        The Crown has accepted that the Court should proceed on your version of events, notwithstanding that that is quite inconsistent with the version put forward by your two co-accused.  We therefore proceed to sentence on the basis accepted by the Crown, namely that you were fetching the heroin on this occasion from Noirmont in order to deliver it to some Indians, who had previously shown you where it was to be hidden and who had physically coerced you into so acting. 

3.        The applicable case is of course Rimmer and ors -v- AG [2001] JLR 373, in order to assess the starting point.  Starting points of between 10 and 13 years are suggested for offences involving from 100 to 250 grams.  The Court must also take into account the nature and scale of your involvement.  The Crown has suggested a starting point of eleven years, but we think that, on the basis of your involvement as described by you, the correct starting point is 10 years, being the bottom of the applicable band.

4.        In mitigation we take into account that you have pleaded guilty, your age - 23 and your background as set out in the reports.  You have a poor record because you have two previous convictions for possession of Class A drugs with intent to supply, albeit that the first appears not to have been too serious.

5.        The Crown decided that a deduction of three years was appropriate to reflect all the mitigation.       Having heard and taken account of all that Mr Gollop has said we think three years is sufficient.  The sentence on the one count which you face, Viveiros, is therefore seven years' imprisonment and we order the forfeiture and destruction of the drugs.

6.        We must also consider the question of deportation.  We have no doubt that your continued presence in the Island is detrimental.  This is your third offence since 1999 of involvement in drug trafficking offences, relating to Class A drugs; you have not been in regular employment.  We must balance against the detriment the hardship which you or members of your family would suffer but you only came to Jersey when you were 17, some 6 years ago and your brother is the only close member of your family here.  You were warned on the last occasion by the Immigration Department that if you re-offended you would be likely to be deported; you have ignored that warning; we have no hesitation in recommending that you be deported.

7.        We turn now to Saraiva.  You fall to be sentenced on the basis that you were aware that Viveiros had a stash of heroin at Noirmont Common and you helped him by, at his request, taking the scales, roll of bags and glass to him in the car and accompanying him to Noirmont, knowing that he intended to bag up some heroin.  It is accepted that you did not know how much heroin he had there, nor how much he intended to bag up on the day. 

8.        In the case of McDonough -v- AG (28^th September 1994) Jersey Unreported, the Court of Appeal made it clear that the guidelines for offences of supply and possession with intent to supply do not apply to offences of being concerned in supply because of the wide variety of conduct which falls within that offence.  The Rimmer guidelines are therefore not applicable.  The Crown has not suggested a starting point.  No doubt that was because of the comments of the Court of Appeal in McDonough when it said this:

"We think it neither necessary nor helpful to approach the matter by fixing a starting point and then discounting for the applicant's plea of guilty and for any other mitigation to which the circumstances may properly be said to give rise.  Such methodology is appropriate to cases where there are established guidelines.  It is not appropriate to the present case."

This Court has, on other occasions, spoken of the difficulties of applying the concept of starting points to offences where the circumstances can be so varied. 

9.        On any view, in our judgment, the limited involvement of Saraiva, namely the delivery of the bagging up equipment on one occasion, is less serious than cases of possession with intent to supply Class A drugs.  But even minor involvement in assisting in the supply of Class A drugs will almost certainly lead to a prison sentence.  In that sense we endorse the comments to that effect made in the English case of R -v- Raby [2003] EWCA Crim 96 C.A. 

10.      In mitigation, we take into account the guilty plea and co-operation at interview; your youth (22); and the background set out in the report, although this makes it clear that you do not appear to be motivated to address your problems and that is also the view of the Drug and Alcohol report.  Furthermore, you are not of good character, in the sense that you have a previous offence for producing cannabis and permitting premises to be used to smoke cannabis and you did not respond favourably to the Probation Order made in that case.

11.      We have taken note of the case of Andrade (10^th October 2002) Jersey Unreported [2002/191] to which we were referred by counsel for Antunes but we regard the mitigation in that case as having been rather more powerful than the mitigation in this case.  Taking account of the mitigation and your involvement in this case, we think that the appropriate sentence is as follows: on count 2: two and a half years' imprisonment; count 3: four months' imprisonment; count 4: one month's imprisonment; the sentences on counts 3 and 4 to be concurrent with that on count 2, making two and a half years in total and we order the forfeiture and destruction of the drugs.

12.      We come finally to Antunes.  You too are a heroin addict. Your involvement was to drive Viveiros to Noirmont Common, knowing that he intended to bag-up some heroin, in exchange for a free personal amount of heroin for your use.  Again, you did not know how much heroin he had there, nor how much he intended to bag-up on the day.  We agree with the Crown that your involvement is marginally less than that of Saraiva.

13.      However we regard the mitigation in your case as being much stronger.  In particular, you have no previous convictions, which stands you in good stead.  You have pleaded guilty and were cooperative at interview; you have undergone an assault in prison.  But, more significantly, you have a good employment record, unlike your co-accused, and you have obtained support from the Social Enquiry Report and the Drug and Alcohol Report.  They show that you have a real determination to conquer your addiction, that you are motivated in this respect and that you are considered to be at low risk of re-offending.  In all the circumstances we think that the mitigation in your case is therefore more powerful and enables a noticeably lesser sentence to be imposed in your case.  The sentence in your case on the one count that you face is one of twelve months' imprisonment.

14.      As to deportation, given your good work record, the fact that this is your first offence and your limited involvement we do not think it necessary in this case to recommend deportation but I must warn you that if you commit any future offences it is likely that you will face deportation.

Authorities

Rimmer and ors -v- AG [2001] JLR 373.

McDonough -v- AG (28^th September 1994) Jersey Unreported.

R -v- Raby [2003] EWCA Crim 96 C.A.

AG -v- Lopes (16^th March 2001) Jersey Unreported; [2001/63]

AG -v- Viveiros (19^th February 2001) Jersey Unreported; [2001/42]

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edition): pp. 20,32, 45-7.

AG -v- Andrade and ors (10^th October 2002) Jersey Unreported [2002/191]