[2006]JRC122
ROYAL COURT
(Samedi Division)
5th September 2006
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Before :
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Sir Philip Bailhache, Kt., Bailiff, and
Jurats Bullen, Le Breton, Georgelin, Clapham, King and Le Cornu.
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The Attorney General
-v-
Fabio Andre Fernandes Martins
Sentencing by the
Superior Number of the Royal Court,
to which the accused was remanded by the Inferior Number on 9th June, 2006, following a
guilty plea to the following charges:
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1 count of:
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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
(General Provisions)(Jersey) Law 1999.
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Age: 23
Plea: Guilty
Details of Offence:
The Defendant’s car was
stopped by Customs Officers along with his father’s car upon their
simultaneous arrival from a ferry crossing from France. The Defendant, his car and a second
occupant of the vehicle were searched with a negative result. However when the father’s car was
examined a void above the petrol tank containing a plastic wrapped package was
exposed. The package was found to
contain 36.37 grams of a powder tested to be heroin containing 21 per cent by
weight of diamorphine. The father
and other occupant of his vehicle were arrested on suspicion of the above
offence. When the Defendant was
subsequently asked if he had any knowledge of the retrieved package, he stated
he was aware of the package, that it contained heroin and that he had put it there
and his father did not know of its presence.
Details of Mitigation:
Guilty plea, co-operation with
investigating officers, residual youth, remorse and references.
Previous Convictions:
1 drug offence (fine), one theft
and minor miscellaneous motoring offences (community service).
Conclusions:
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Count 1:
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4½ years imprisonment, recommended
for deportation.
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Sentence and Observations of Court:
Conclusions granted.
C. M. M. Yates, Crown Advocate.
Advocate M. J. Haines for Martins.
JUDGMENT
THE BAILIFF:
1.
The Defendant
has pleaded guilty to the importation of 36 grams of heroin into the island. There is no doubt that this is a
commercial quantity. The Defendant
asserts that it was for his personal use, or for the use of himself and his
girlfriend. That may be so although
we note that he appears not to have been in employment for the last 8
months. What is clear is that when
a person imports such a quantity of heroin there is always a risk that some of
it will find its way, by one means or another, onto the streets or into the
possession of others.
2.
The Defendant
is not a mere courier. He
deliberately went to Portugal
to buy this heroin, and he organised its importation, including putting the
drug in his father’s car in St Malo and causing his father to be arrested
for questioning.
3.
Applying
the guideline case of Rimmer, Lusk and Bade-v-AG [2001] JLR 373, the
Crown Advocate has taken a starting point of 9 years imprisonment. That was not seriously contested by
Defence Counsel and we agree that this is the appropriate starting point on the
authorities.
4.
In
mitigation, Martins is still a young man.
He was 22 at the time of the offence. He has pleaded guilty to the Indictment
and admitted his involvement in the offence, co-operating with the
investigating officers. He has
expressed some remorse. He has
provided, through his Counsel, a number of references from relatives and
friends who express their confidence in him. It is sad that a young man of
Martins’ age should have become addicted to heroin and have committed a
serious offence of this kind.
Having said that, we take into account all the mitigating circumstances
and in our judgment the Crown Advocate has made the appropriate allowance for
them. The conclusions are granted
and you are accordingly sentenced to 4½ years’ imprisonment.
5.
We turn
now to the question of deportation.
The Court has considered the guidelines set out in R-v-Nazari
[1980] 3 All ER 880. The test to be
applied by the Court has two elements; the first is whether the continued
presence of the Defendant in the island would be detrimental to the public
good; the second is whether, if the answer to the first question is in the
affirmative, the deportation would be disproportionate, having regard to the
right to family life contained in Article 8 of the European Convention on Human
Rights.
6.
As we have
stated, the Defendant is a heroin addict, although, the Court has been told
that he has de-toxed whilst on remand in prison. He is said in the reports to be at
medium risk of re-offending. The
indisputable fact is that he has not worked for the last 8 months since
becoming a heroin addict. The Court
has no doubt that the first limb of the test is satisfied and that the
continued presence, in Jersey, of the
Defendant is detrimental to the interests of the community. To live in Jersey
is a privilege and if the privilege is abused it is liable to be withdrawn.
7.
Turning to
the second limb of the test, the Court has considered carefully the interests
of the Defendant’s girlfriend and of his parents. The girlfriend is a Portuguese speaker
and could, if she wished, accompany the Defendant if he is deported to Portugal. The Defendant’s parents have lived
in the island for 8 years and the Defendant is their only child. We accept that the parents will be
affected if the Defendant is deported.
8.
Our
conclusion is, by a majority, that the effect upon the family life of the
Defendant would not be disproportionate, having regard to the interests of
other young people in Jersey and indeed to the
interests of the community as a whole.
We will therefore recommend to the Lieutenant Governor that at the
conclusion of his sentence the Defendant be deported to Portugal.
Authorities
Rimmer,
Lusk and Bade-v-AG [2001] JLR 373.
R-v-Nazari [1980] 3 All ER 880.