Jersey Unreported Judgments

[2005]JRC115

ROYAL COURT

(Samedi Division)

16^th August 2005

Before     :

Sir Philip Bailhache, Kt. Bailiff, and Jurats Le Breton, Georgelin, Allo, Clapham and Newcombe.

The Attorney General

-v-

Jose Miguel de Freitas Henriques

Bruno Rafael Jardim Freitas

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 22^nd April, 2005, following guilty pleas to the following charges:

Jose Miguel de Freitas Henriques

2 counts 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 1978. (Counts 1 and 2).

Age:  26.

Plea: Guilty.

Details of Offence:

On 12^th February, 2005, Henriques and Freitas were stopped at Elizabeth Ferry Terminal by customs officers shortly after they disembarked from the Commodore Clipper, which had arrived from Portsmouth.

Both were advised of the prohibitions and restrictions in force relating to controlled drugs and both stated they had nothing to declare.  Freitas provided a urine sample which tested positive to opiates, cocaine and cannabis.  Henriques consented to a mouth swab which tested positive to opiates and cocaine.  Both were searched (with negative results), arrested and transported to the General Hospital to be X-rayed.

Shortly before his X-ray, Freitas admitted to a doctor that he had swallowed several packages.  Freitas' X-ray showed several suspicious packages in his lower abdomen.  Henriques' X-ray proved negative to any foreign objects.  Both were returned to the custody suite at Elizabeth Terminal.

Whilst in custody Henriques and Freitas visited the toilet on several occasions.  Henriques passed a total of 15 packages and Freitas passed 11 packages.  Those passed by Henriques contained a total of 33.82 grams of heroin and 1.98 grams of cocaine.  Those passed by Freitas contained 21.81grams of heroin and 0.808 grams of cocaine.  In total 55.63 grams of heroin (wholesale value of between £8,505 and £11,340), 2.788 grams of cocaine (wholesale value £192).

On the evening of 13^th February, 2005, the manager of Condor Ferries handed a suitcase in to customs officials.  The suitcase was presented to Freitas who admitted that it was his.  When shown the suitcase Henriques stated that it belonged to Freitas and contained nothing of his property save for a small camera.

The suitcase contained amongst other things a lotion bottle, a shampoo bottle and a tube of toothpaste.  Each of these items were opened and found to contain several "straw shaped" packages.  These packages were in turn opened and found to contain tablets which were subsequently field tested and reacted positively for the presence of methamphetamine.  On examination by the States Analyst the tablets were found to contain MDMA (ecstasy).

In total 694 units of MDMA (wholesale value between £4,164 and £5,552) were recovered.

Details of Mitigation:

Henriques was born on 4^th July, 1979, and is 26 years of age.  He is Madeiran by birth but currently resides in Jersey.  Until recently, he had maintained a good employment record, but had sought to make extra money to fund his return to Madeira by importing drugs into Jersey.  His own use of drugs would appear to be minimal and he has been assessed at low risk of re-offending.  By way of further mitigation it was accepted that a guilty plea had been entered at the earliest opportunity and had been maintained throughout.  Although a guilty plea was all but inevitable, the Crown gave Henriques reasonable credit for choosing not to proceed to trial, which was his right.  Several references in relation to Henriques were produced by the Defence.

The Crown accepted that the role and involvement of both defendants was merely that of couriers.

Previous Convictions:

Treated as being of good character as only one minor conviction which was unrelated to drugs.  

Conclusions:

Count 1:	4½ years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.

Total: 4½ years' imprisonment.

A confiscation order in the amount of £344 (being the cash received prior to departure and the cost of travel to Jersey) was requested.

Forfeiture and destruction of the drugs was sought.

Recommendation for deportation was sought.  

Sentence and Observations of Court:

Conclusions granted.

Jose Miguel de Freitas Henriques

3 counts 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 1978. (Counts 1, 2 and 3).

Age:  26.

Plea: Guilty.

Details of Offence:

See Henriques above.

Details of Mitigation:

Freitas was born on 6^th October, 1977, and is, therefore, 27 years of age.  He is also Madeiran by birth and, prior to his arrest, resided in Brixton, London.  Freitas is described as being "embroiled" within the drugs culture through his own persistent usage and dependence on drugs although in his Social Enquiry Report interview he stated that his involvement was secondary to Henriques and that he had also attempted to withdraw from the enterprise but agree to carry out the importation when his life was threatened.  Freitas is assessed at medium risk of re-offending but it is thought that this could be decreased if he addressed his addiction issues.  Freitas was also give reasonable credit for his guilty plea even though this was all but inevitable.  Freitas' legal representative also produced numerous references.

The Crown accepted that the role and involvement of both defendants was merely that of couriers.

Previous Convictions:

Treated as being of good character as only one minor conviction which was unrelated to drugs.

Conclusions:

Count 1:	4½ years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 3:	4½ years' imprisonment, concurrent

Total: 4½ years' imprisonment.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Following submissions from the Counsel for Freitas the Court concluded that is was mere chance that the MDMA was in Freitas' suitcase and that both parties should be considered responsible for all of the drugs.  This said, as Henriques had not been charged in connection with the ecstasy they could not increase his sentence in this regard nor did they think it was equitable for Freitas to receive a sentence 1 year longer than Henriques.  The Court therefore concluded that it would not apply the principles set out in AG v Valler as suggested by the Crown.

Conclusions granted.

A. R. Binnington, Esq., Crown Advocate.

Advocate R. Tremoceiro for Henriques.

Advocate S. A. Pearmain for Freitas.

JUDGMENT

THE BAILIFF:

1.        Henriques and Freitas have admitted importing heroin and cocaine and Freitas has, additionally, admitted importing ecstasy.  They were arrested at St Helier Harbour on 12^th February, 2005.  The heroin and cocaine were concealed internally.  In total 55 grams of heroin, with a wholesale value of between £8,500 and £11,000, and nearly 3 grams of cocaine, valued at £192, were imported.  In addition 694 tablets of MDMA, with a wholesale value of £5,000 were imported by Freitas.

2.        Both defendants admitted that they were to be paid £3,000, or so, for carrying out the importation.  They both entered the transaction with their eyes open. The defendants have each sought to attribute greater responsibility, for the offences, to the other.  The Crown has concluded that there is nothing to chose between the defendants in terms of their culpability in relation to the importation of the heroin and cocaine.  The Crown Advocate regarded both defendants as being couriers of the drugs.

3.        Applying the principles set out in AG v Valler [2002] JRC 048, the Crown Advocate has, however, recommended that the Court should adopt a higher overall starting point in relation to Freitas than for Henriques.  The Crown has recommended a starting point of 10 years for Freitas and 9 years for Henriques. 

4.        Defence counsel for Freitas urged upon the Court that both men carried equal responsibility for these offences and that it was, in a sense, accidental that the ecstasy was transported in a suitcase owned by her client. 

5.        The Court has had long and anxious discussion as to whether the starting point for Freitas should be increased on Valler principles in relation to the 750 tablets of ecstasy.  On balance, and by a majority, we have concluded that the evidence suggests that this was a joint venture, overall, for which both defendants were equally culpable.  On that basis we think, in the exercise of our discretion, that the same starting point of 9 years should be applied in relation to both defendants and that the starting point for Freitas should not be increased.

6.        Turning to the mitigation available to each defendant.  Henriques has pleaded guilty to the indictment, he has no relevant previous convictions and a number of character references have been placed before the Court showing that, in general, he was of positive good character before the commission of these offences.  It does appear that these offences were out of character and it is regrettable that he should have succumbed to temptation.  Taking all the available mitigation into consideration, we think that the Crown has applied the correct deductions, the conclusions are therefore granted.

7.        Henriques you will be sentenced on Count 1; 4½ years' imprisonment, Count 2; 3 years' imprisonment, to run concurrently, making a total of 4½ years' imprisonment.

8.        Freitas has pleaded guilty and also has no relevant previous convictions.  We have looked at the references available to Freitas, he has had disadvantages in terms of his upbringing, not suffered by Henriques, but on the other hand he has admitted being involved in the drug scene prior to his involvement in these offences. 

9.        Taking all available mitigation into consideration, we sentence you, Freitas, on Count 1; 4½ years' imprisonment, Count 2; 3 years' imprisonment, Count 3; 4½ years imprisonment, all those sentences to be concurrent, making a total of 4½ years' imprisonment.

10.      The Crown has invited the Court to consider recommending to the Lieutenant Governor that you be deported at the conclusion of your sentences.  Neither defendant has opposed the suggestion by the Crown Advocate.  Applying the principles set out in R v Nazari [1980] 2 Cr App. R (S) 84 we agree that the interests of the community would be served by recommending deportation, and there being no other relevant factors militating against that recommendation the Lieutenant Governor will be recommended to deport both defendants when they have served their sentences.

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

Authorities

AG v Valler [2002] JRC 048.

R v Nazari [1980] 2 Cr App. R (S) 84.