Jersey Unreported Judgments

Inferior Number Sentencing - drugs - possession - Class B and Class C - Incitement to pervert the course of justice.

[2017]JRC114

Royal Court

(Samedi)

21 July 2017

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen and Thomas.

The Attorney General

-v-

Marcio Patricio Figueira Dias

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges on the First Indictment and to which the accused was remanded following conviction at Assize trial on 8^th June 2017 on the following charge (Count 4) on the Second Indictment:

First Indictment

3 counts of:

Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1 to 3).

Second Indictment

1 count of:

Incitement to pervert the course of justice (Count 4).

Age:  38. 

Plea: Guilty to First Indictment/Not Guilty to Second indictment.

Details of Offence:

On 31^st July, 2016, the defendant was spoken to by a police officer, the officer asked to see the defendant's identification card which he produced.  The officer noticed a brown resinous substance attached to the identification card.  The substance was analysed and found to be 0.1 of a gram of cannabis resin, a Class B drug (Count 1 on the First Indictment). 

Just over a month later on Tuesday 30^th August, 2016, the defendant was arrested on suspicion of rape.  Upon arrest his home was searched and the following Class C drugs were seized by the Police, 2 diazepam tablets (1mg per tablet); (this forms the basis of Count 2 on the First Indictment.) and 2 alprazolam tablets (10 mg per tablet); (this forms the basis of Count 3 on the First Indictment.) 

The defendant was arrested on 30^th August, 2016, on suspicion of rape which was alleged to have taken place on 27^th August 2016.  On 26^th October, 2016, whilst on remand at HMP La Moye, the defendant telephoned his sister and a conversation took place during which the defendant asked his sister to contact the rape complainant and get her to "stop with this joke" which the sister did via Facebook Messenger.  After this contact had taken place the defendant again spoke to his sister, who confirmed that she had been in contact with the rape complainant. 

Details of Mitigation:

Early guilty pleas to the First Indictment (concerning drugs). 

Previous Convictions:

Two convictions for four motoring offences locally.  Convictions in Madeira for theft, robbery, aggravated theft, disobedience and drug trafficking. 

Conclusions:

First Indictment

Count 1:	1 week's imprisonment.
Count 2:	1 week's imprisonment, concurrent.
Count 3:	1 week's imprisonment, concurrent.

Second Indictment

Count 4:

18 month's imprisonment, consecutive to the First Indictment.

Total: 18 months and 1 week's imprisonment. 

Recommendation for Deportation sought.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

First Indictment

Count 1:	1 week's imprisonment.
Count 2:	1 week's imprisonment, concurrent.
Count 3:	1 week's imprisonment, concurrent.

Second Indictment

Count 4:

6 month's imprisonment, consecutive to the First Indictment.

Total: 6 months and 1 week's imprisonment - resulting in sentence served. 

No recommendation for Deportation made. 

Forfeiture and destruction of the drugs ordered. 

C. R. Baglin, Esq., Crown Advocate.

Advocate S. E. A. Dale for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Mr Dias, you are here to be sentenced on the count on which you were convicted before the jury of incitement to pervert the course of justice and on some drugs offences, and there is also a submission by the Crown that you should be recommended for deportation.  Any offence around perverting the course of justice is a serious offence and it would be unusual for a Court not to look at imposing a custodial sentence for such offences.  It is important though that the Court recognises that because the sentence is at large, it could be up to life imprisonment, the Court recognises that there are different degrees of seriousness.  At the high end of the scale would be planting evidence to incriminate other people or making false complaints that lead to other people facing serious charges and repeated activity takes one up to longer periods of imprisonment in relation to that sort of count; and, below that, pressurising a witness to withdraw a complaint that he or she has properly made is also extremely serious.  There is also a public policy in ensuring that those who complain of rape or sexual offences committed against them should not feel that they will face further contact from the person they complain against until trial. 

2.        We take into account though that pressurising a witness to withdraw what turns out to be an unproved complaint is less serious and where there is no great pressure but there is contact or interference, that is probably less serious still - nonetheless serious because any attempt to pervert the course of justice is of itself serious.  

3.        On the facts of this case you were arrested on 30^th August on suspicion of rape.  Ultimately on a trial before the jury you were unanimously acquitted and the Court considers that the fact that you were unanimously acquitted does cast some light on the extent to which you are to be held culpable, to be blamed, for what you did in relation to perverting the course of justice.  You had been in custody for some 2 months when the activity, the action that led to the perverting the course of justice, took place.  The facts relating to that are that you spoke to your sister, who lives in Madeira, and you suggested that she should speak to your mother whom you were not allowed to contact under the bail conditions and ask your mother to go to the complainant and apologise.  The context of the apology was that you considered that she had consented at the time and we take it from that that you were suggesting that she, the complainant, must have misunderstood.  When we look at what you said to your sister we take into account that there was no threat, there was no real pressure, and that you were really encouraging your sister to encourage the complainant to tell the truth, and it would be wrong for us to look at the way in which your sister interpreted what you said and to hold you responsible for any actions that she took, which go beyond what you had asked her to do.  At the same time the jury have found you guilty and it follows that the jury must have considered that you knew that your sister was certainly at risk of doing some of the things that she did.  Nonetheless, all the cases which have been put before us by the Crown fall into quite a different category where there was more direct pressure or overt threats, where the defendant had actually committed the offence in any event, and where therefore the attempt to pervert the course of justice was much more direct.  Having said all that we repeat that the attempt to pervert the course of justice is of itself a serious offence and the jury have found you guilty of that and you are to be sentenced accordingly. 

4.        We think this offence does come at the bottom of the scale of attempting to pervert the course of justice, so much so that we probably would normally have imposed an order of community service and we are looking at 120 hours' community service or 6 months' imprisonment.  As it happens you have been in custody on remand and have served in excess of that period and for that reason we are going to sentence you to 6 months' imprisonment on this particular count of incitement to pervert the course of justice.  On the drugs counts you are sentenced as the Crown has concluded to 1 week's imprisonment, concurrent, on each of those charges, concurrent with each other and consecutive to the count of incitement to pervert the course of justice and so the total sentence of imprisonment is 6 months and 1 week, again it makes no difference because you will be released today. 

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

6.        We now come to the conclusion that we should recommend deportation and we apply the test which is set out in Camacho v AG [2007] JLR 462.  The first question we have to ask ourself is whether your continued presence in the Island is undesirable such that because of your conduct we should recommend you for deportation.  We are not going to make the recommendation for deportation because we do not consider the first part of the test in Camacho to have been passed, having regard to the circumstances which we have described in relation to the offence which you have been found guilty of committing.  If we had thought that that test had been passed we would have to go on to consider other features which are relevant and that includes your previous record as well as the other features which your counsel has relied upon, your good work record and so on.  And I want to say this to you in particular because your record includes a motoring offence which was committed in May 2015 of driving whilst over the prescribed limit and within two months you had committed a further offence of driving whilst disqualified, driving without insurance, which were serious offences for which you were sentenced to imprisonment., serious because you showed by that a disregard of what the Court had said on the previous occasion in May. 

7.        Although we are not making an order, a recommendation for deportation today, you must appreciate that if you commit any further offences and the question of deportation comes up again this will work very much against you.  It is said to us by your counsel that you have usefully used the period in custody to become free of drugs and if you have that is very much to your credit.  Addiction to drugs is not something you can lose just like that.  It is not an eleven-month sprint, it is a lifetime commitment to lose that addiction and you need to reflect on that if you are to keep yourself free of criminal activity and be allowed then to stay in this Island. 

Authorities

Camacho v AG [2007] JLR 462. 

AG v Tucker [2003] JRC 119. 

AG v Shore [2010] JRC 064. 

AG v Saeed [2013] JRC 246. 

AG v T [2014] JRC 154.