Jersey Unreported Judgments

[2007]JRC081

ROYAL COURT

(Samedi Division)

13^th April, 2007

Before     :

J. A. Clyde-Smith Esq., Commissioner, and Jurats de Veulle and Clapham.

The Attorney General

-v-

Nelio Nunes Abreu

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

2 counts of:	Supplying a controlled drug, contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 1 and 2).
1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 8 (2) of the Misuse of Drugs (Jersey) Law 1978.  (Count 3).
1 Count of:	Possession of a controlled drug with intent to supply, contrary to Article 8 (1) of the Misuse of Drugs (Jersey) Law 1978.  (Count 4).

Age:  38.

Plea: Counts 1, 2 and 4 Guilty.  Count 3, Not Guilty.

Details of Offence:

The Defendant was seen to supply a bag of heroin to an individual.  Upon arrest he swallowed a wrap of heroin during search.  At his accommodation a further three wraps were found.  In interview he admitted that he had supplied heroin to various parties over a two month period.

Details of Mitigation:

Guilty pleas.

That the principal supply charge was based entirely on his own admissions.

Lack of previous drug related convictions.

Previous Convictions:

The Defendant had three previous public order offences but no drug related offences.

Conclusions:

Count 1:	6 months' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 4:	3 months' imprisonment, concurrent.
Total:	3½ years' imprisonment.

Confiscation Order £745.39.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation.

Sentence and Observations of Court:

Count 1:	6 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 4:	3 months' imprisonment, concurrent.
Total:	12 months' imprisonment.

As the Defendant was not seen as a major player and had only supplied 1½ grams the Court took a starting point of 5 years.  The Court took into account the guilty plea, lack of previous convictions, his good work record and the fact that his addiction had been very short lived.

The Court declined to make a recommendation for deportation on the basis that it could not be established that the Defendant's continued presence would be detrimental to the Island.  This was based on the fact that he had a long and good work record, had been in the Island a considerable amount of time, had only been involved with heroin for a short period and had given assurances that he would mend his ways.

Confiscation Order £745.39.

Forfeiture and destruction of the drugs is ordered.

S. E. Fitz, Crown Advocate.

Advocate R. Tremoceiro for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant, who is aged 38, first became involved in illegal drugs as recently as July 2006 when friends introduced him to heroin.  At the time he was feeling depressed from splitting up from his girlfriend who had moved to London with their young son.  He found heroin helped him to cope with this distressing period of his life and he quickly acquired a daily habit of one to two bags which he funded from his wages and savings.

2.        As a result of his drug addiction he was sacked from his last two jobs and became unemployed and was unemployed at the time of his arrest.  He and his friends shared their supply of heroin.  The principal purpose of his purchasing was for his personal use.  He used approximately four bags a day.

3.        On each occasion that he purchased a gram of heroin he would divide the gram into no more than eight separate bags, some of which he would supply to fellow addicts at their request, as they supplied him.

4.        From each of 3 grams of heroin, which he volunteered purchasing, he did not sell in excess of four £50 bags which he used to recoup the £200 outlay.  This admission constitutes the second count in the indictment which is the most serious of the 3 counts.

5.        He was arrested on 6^th December, 2006 in the act of supplying one bag of heroin to a Miss Maria Moniz, this constitutes the first count.  At the time he placed the bag in his mouth and swallowed it, which constitutes the third count of possession.

6.        The Courts have established guidelines in relation to the starting point for the supply of the powder form of a Class A drug to be 7 to 9 years for 1 - 20 grams.  The Crown has taken a starting point of 7 years. 

7.        Counsel for the defence has pointed out to us that these are guidelines and not tramlines and taking into account what we regard as the degree of this defendant's involvement in drug trafficking supported by the letter from Mr Gafoor of Alcohol and Drugs Service, where he says that he did not consider the defendant to be a major player in the local illegal drugs distribution network, we regard 5 years as being the appropriate starting point. 

8.        By way of personal background the defendant was born and brought up in Madeira.  He was married there for 12 years, and has a nine year old daughter who lives there.  Apart from seasonal work in the Island in 1987 he has resided here from 1991 to the present day with a stay in Guernsey from 2005 to May 2006.  Apart from his very recent problems he has a good work record and has employment waiting for him on his release. 

9.        There are a number of factors in mitigation which we regard as being unusual.  There is, of course, his guilty plea, there is the lack of drug related previous convictions and, perhaps most importantly, the fact that the charge of supplying was based entirely on his own admission.  We have taken into account also the fact that his addiction, or involvement in drugs, is very short lived indeed.  We have read the references and the reports and we note that he does have the support of a group of friends and work to go to. 

10.      For all these reasons we have decided to sentence you as follows.  On Count 1, you will be sentenced to 6 months' imprisonment; on Count 2, you will be sentenced to 1 year's imprisonment, concurrent; and on Count 4, to 3 months' imprisonment, concurrent, giving rise to a total of 1 year's imprisonment. 

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

12.      In terms of the confiscation order we do declare that the defendant has benefited to the extent of £1,100 and make the agreed confiscation order of £745.39.

13.      We turn now to the recommendation for deportation and to the two stage test set out in the R -v- Nazari [1980] 71 CR. App. R 87 case.  The first of which is whether the defendant's continued presence in the Island is detrimental to the community.  We have been much assisted by the authority referred to us by defence counsel of R -v- Maftonian [2006] 1 CR. App. R. (S) 14 p.76, where the Court said the correct approach to this test was explained in the case of Compassi [1987] 9 Cr. App R. (S) 270 in which the Court quashed the deportation recommendation imposed on a man who pleaded guilty to unlawful wounding after having struck another man in the face with a beer glass.  Rose J (as he then was) giving the judgment of this Court said that:

"The question which has to be asked in relation to whether or not it is appropriate that a deportation order should be made is whether or not he constitutes a genuinely and sufficiently serious threat to the requirements of public policy".

14.      Having taken into account all the matters in mitigation to which I have already referred, the fact that the defendant has had a long and good work record, and to his very short involvement with drugs, and the fact that he has assured us, through counsel, that he wishes to break with that addiction and mend his ways, this Court is not satisfied that he constitutes a genuinely and sufficiently serious threat to the requirements of public policy, and we are therefore, not going to make a recommendation that he be deported.

Authorities

R -v- Nazari [1980] 71 CR. App. R 87.

R -v- Maftonian [2006] 1 CR. App. R. (S) 14 p.76.

Compassi [1987] 9 Cr. App R. (S) 270.