Jersey Unreported Judgments

Superior Number Sentencing - drugs - supply - possession - Class A.

[2012]JRC126

Royal Court

(Samedi)

28 June 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Le Cornu, Morgan, Kerley, Crill and Olsen.

The Attorney General

-v-

Sylwester Szczypek

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 11 May, 2012, following a guilty plea to the following charges:

1 count of:	Being concerned in the supply of a controlled drug, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 2).

Age: 34.       

Plea: Guilty.

Details of Offence:

For a reward of £200 the defendant agreed to collect packages of heroin from a courier and pass them in to the next link in the supply chain.  He was given £5,000 to return to the courier.

Details of Mitigation:

Guilty plea and he has written his own Indictment.  He was caught with £5,000 in his possession and the small quantity of heroin the subject of Count 2 at his home.  He admitted that he had supplied two packages of heroin; that he knew it was heroin because he tried some of it and drew representations of the size of the packages which were not recovered.   Difficult background; medium risk of reoffending

Previous Convictions:

No convictions were recorded on the PNC but the defendant admitted to probation that he had previous convictions for possession of drugs and alcohol related violence.  It was not possible for the police to verify these convictions without further cooperation from the defendant. 

Conclusions:

The starting point was based on the uncertainty over the actual quantity of drugs and the level of involvement as a runner.  50% discount given principally for writing his own Indictment, resulting in a sentence of 4 years in custody.

Count 1:	Starting point 8 years' imprisonment.  4 years' imprisonment.
Count 2:	1 month's imprisonment, concurrent.

Total: 4 years' imprisonment.

Confiscation Order sought in the sum of £5,000.

Forfeiture and destruction of the drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

On the issue of whether deportation was disproportionate the defendant had been in the Island for 5 years and had a 20 month old son born in Jersey.  The Court concluded that a recommendation should be made.  His relationship with the mother of his child had ended, he had a poor work record, a history of abusing alcohol and drugs, previous offences relating to drugs and violence and the relationship with his child could be continued in Poland. The interests of the child and the defendant were outweighed by the detriment to the Island were the defendant allowed to remain. 

Conclusions granted.

Mrs S. E. Fitz., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to being concerned in the supply of heroin.  He was, as the Crown say, a cog in the wheel of distribution in the Island, having been caught with £5,000 in cash after delivering two packages of heroin which have not been recovered.  From the description of the packages given by the defendant and the amount of money seized, it is accepted that the heroin in terms of weight is in the range of 25-50 grams.  In view of the uncertainty as to the quantity and the role of the defendant as a "runner" the Crown have taken 8 years as the starting point, which is the lowest starting point in the 20-50 gram band.  The Defence agree that this is the correct starting point as does the Court.  The defendant has been assessed at a medium risk of reoffending and has a history of drug and alcohol abuse and an inconsistent work record.  He has indicated to the probation officer that he has previous convictions in Poland relating to the possession of heroin and alcohol-related violence. 

2.        As the Crown points out however, there is considerable mitigation available to the defendant who has written his own Indictment.  Without his cooperation the only evidence against him was the £5,000 in cash and the small quantity of heroin found in his home.  The Crown therefore moves for a discount of 50% from the starting point resulting in a sentence of 4 years. 

3.        In terms of mitigation we have listened to the submissions of Mr Haines.  The defendant has, of course, pleaded guilty and we have mentioned his cooperation with the police.  He has shown himself to be remorseful and we are aware of the sad family background which is set out in the social enquiry report.  Mr Haines submitted that we should apply a discount of more than 50% but we have reached the conclusion that the discount put forward by the Crown is correct and we are therefore going to grant the conclusions.

4.        On Count 1 you are sentenced to 4 years' imprisonment, on Count 2; 1 month's imprisonment, concurrent, making a total of 4 years' imprisonment.

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

6.        Turning to the issue of deportation the Crown has asked the Court to exercise its powers under the Immigration Act 1971 to recommend the defendant's deportation upon completion of his sentence.   There is a two part test which the Court must apply; firstly, whether the defendant's continued presence in Jersey would be detrimental to the public good and secondly, whether deportation would be disproportionate having regard to the rights under ECHR of both the defendant and others not before the Court, in this case his girlfriend and his child.  With regard to detriment to the public good, it was said in the case of De Carvalho-v-AG [2007] JRC 087 :-

"The Court has said on numerous occasions that there is no place on this Island for foreign nationals who deal in, or import, Class A drugs to the damage of the young people of this Island.  We quote, once again, from the words of the English Court of Appeal in Samaroo-v-Secretary of State  for Home Department [2011] EWCA Civ 1139, which is a passage which has regularly been quoted before.  The Court of Appeal there said this:-

'In my judgment, the Secretary of State was entitled to regard Class A drug trafficking offences as very serious, and ones which are particularly serious and harmful to society.  He was entitled to attach such importance to his general policy of deporting those convicted of importation of Class A drugs in order to protect those resident in the UK from the harmful effects of drugs and by deterring others in the interest of preventing crime and disorder.'

This Court has said on previous occasions that it endorses those sentiments and we repeat that on this occasion.  The comments, of course, apply equally to drug dealing and to drug importation." (Divider 5 page 139). 

7.        In the case of AG-v-Vieira [2007] JRC 195 the Court found that even one serious offence may lead to the conclusion that the offender's presence is detrimental even if he is at a low risk of reoffending.  The defendant here is at a medium risk of reoffending.  We too endorse the general policy of the Court in relation to this matter.  In our view this is a very serious offence for which we have just sentenced the defendant to a term of imprisonment of 4 years.  We therefore agree with the Crown that the first part of the test is met. 

8.        Turning to the second part of the test the defendant has not been in the Island long.  He has no parents or siblings on the Island.  He does not have employment and did not have employment prior to the offending.  He has a girlfriend with whom he has had an on/off relationship, damaged, the Crown tell us, by his drinking and now of course by his involvement in trafficking or dealing in Class A drugs.  He has a young child who is 20 months old and the Crown say that he has not managed to put the interests of that child before his own drinking and this offending. On his own admission he has a record of offences for drugs possession and alcohol-related violence.  His girlfriend has told others that the relationship is at an end but she has written to us a letter which we have considered carefully asking that no recommendation for deportation should be made, both for the child's sake and for the defendant's sake.  She tells us that she visits the defendant regularly in prison. 

9.        In so far as the rights of his girlfriend and child are concerned, the Crown submitted that the bonds between them are not so strong that they should outweigh the detriment which the community would suffer if the defendant were to remain here.  His girlfriend, say the Crown, can choose to accompany him should she so wish.  We note that the defendant is not on the child's birth certificate and that he has not applied for parental responsibility or been granted it by his girlfriend.  But leaving that aside, it seems to us that it is the human rights of the child that require the greatest consideration on our part.  This we have done with as much care as we can and with great concern.  But at the end of the day we agree with the arguments put forward by the Crown. 

10.      We conclude that the public interest here outweighs the human rights of the defendant, his girlfriend and the child.  We do therefore recommend that the defendant be deported at the end of his sentence. 

Authorities

Whelan on aspects on Sentencing in the Superior Court of Jersey.

Immigration Act 1971.

De Carvalho-v-AG [2007] JRC 087.

AG-v-Vieira [2007] JRC 195.