The Attorney General v Mohammed Shahnowaz and Graciela Christina Correia

[2003]JRC121

ROYAL COURT (Samedi Division) 14th July 2003 Before: Sir Philip Bailhache, Bailiff, and Jurats Rumfitt, Potter, Quérée, Georgelin, Allo and Clapham. The Attorney General -v- Mohammed Shahnowaz; Graciela Christina Correia. Sentencing by the Superior Number of the Royal Court, to which the defendants was remanded by the Inferior Number on 21st February, 2003, following guilty pleas to the following charges: Mohammed Shahnowaz 1 count of: Possession of a controlled drug with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law 1978: Count 2: diamorphine 1 count of: . Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 3: cocaine. [On 21st February 2003, the Defendant pleaded not guilty to count 4, which plea was accepted by the Crown; the Crown did not proceed with Count 1.] Age: 29. Plea: Guilty. Details of Offence: Police observed Correia driving a vehicle with Shahnowaz in the passenger seat. The vehicle was seen to turn into the car park near the B & Q store in Queen’s Road, St Helier. The car parked in a poorly lit section of the car park where it was joined by another vehicle driven by an individual who parked alongside it and got out to speak to Shahnowaz. The police moved in whilst Shahnowaz was in the course of supplying the other individual with heroin. Shahnowaz was caught in possession of

a total of 7.70 grams of heroin together with a small quantity of cocaine which he claimed was for his own use. The street value of the heroin was between £2,487 and £3,730 and the street value of the cocaine was £80. The individual being supplied with heroin was subsequently dealt with in the Magistrate’s Court for an offence of simple possession. During police interview, Correia fully admitted not only that she had been aware of Shahnowaz’s drug dealing but also that she had for the preceding two weeks driven him to different places in the Island so as to enable him to sell heroin. Both accused were interviewed by the police to determine their financial status and from those interviews it became clear that both were living beyond their legitimate means. A search of their shared accommodation revealed a quantity of cash totalling £3,832. In the case of Shahnowaz, the Crown sought a declaration of benefit in the sum of £50,696.25 and a Confiscation Order for £8,431.34. This application was contested and evidence was heard from Shahnowaz and two other witnesses called on his behalf. Upon completion of the evidence, the Court pronounced itself satisfied that Shahnowaz had benefited from drug trafficking albeit in a somewhat lower amount than sought by the Crown being the sum of £42,696.25. A Confiscation Order was made for £8,431.34 equating to the value of assets available for

recovery purposes. The Viscount was duly authorised to realise those assets and to apply them towards the Confiscation Order. Details of Mitigation: Shahnowaz had pleaded guilty to the indictment but most importantly gave assistance to the police choosing to name his supplier in open Court. Shahnowaz had long term difficulties with drug addiction and indeed had prior convictions for relatively minor drugs offences. When pressed on the issue by the Court, Shahnowaz admitted through counsel that he had been dealing in drugs but he claimed that he had only done so to support his own considerable drug habit. He also had a considerable gambling problem for which he was seeking counselling at the prison. He had had some limited success in breaking his addiction through the assistance provided by the Alcohol and Drug Service. He was remorseful. Conclusions: Count 2: 4½ years’ imprisonment (8 years’ starting point). Count 3: 3 months’ imprisonment, concurrent. TOTAL: 4½ years’ imprisonment. £8,431.34 confiscation order. The Crown took a starting point for sentence of 8 years’ imprisonment for the more serious offence. That sentence was discounted by 25% for the guilty pleas bearing in mind that Shahnowaz had been caught red-handed. A further reduction of 18 months was made principally for Shahnowaz’s assistance to the police given that there was not much other available mitigation in

this case. The Crown had not been aware at the time of formulating conclusions that Shahnowaz intended naming his supplier in Court. The Crown sought a sentence of four and a half years’ imprisonment for the offence of possession with intent to supply and a concurrent sentence of three months’ imprisonment for the offence of simple possession of cocaine. Sentence and Observations of Court: Count 2: 3½ years’ imprisonment. Count 3: 3 months’ imprisonment, concurrent. The Court observed that Shahnowaz was caught red-handed dealing drugs. The starting point of eight years’ imprisonment was correct. However, the Court observed that the Crown’s conclusions had not taken into consideration the naming by Shahnowaz of his supplier in open Court. The Court took the opportunity to state that this is to be encouraged by the Court. Taking that together with all other available mitigation, the Court reduced the Crown’s conclusions by one year and so sentenced Shahnowaz to three and a half years’ imprisonment for the offence of possession with intent to supply and a concurrent sentence of three months’ imprisonment for the offence of simple possession. An Order was made for the forfeiture and destruction of the drugs. Graciela Christina Correia 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 5:

diamorphine. [On 21st February 2003, the Defendant pleaded Not Guilty to count 6, which plea was accepted by the Crown.] Age: 24. Plea: Guilty. Details of Offence: See M. Shahnowaz above. Details of Mitigation: Correia had also pleaded guilty to the indictment. She had made admissions to the police going beyond those strictly necessary. Her involvement was more peripheral. She had received no reward for her actions. She was a young single mother with a three year old daughter. In her case, it was contended that a sentence of imprisonment was not inevitable. Correia had a minor criminal record but no prior convictions for drugs offences. Conclusions: Count 5: 1 years’ imprisonment. The Crown had regard to the decision of the Court of Appeal in McDonough –v- AG (28th September 1994) Jersey Unreported, in which the Court made it clear that the guidelines for offences of supply and possession with intent to supply are not applicable to offences of being concerned in supply. For this reason, no starting point for sentence was selected. The Crown did consider it necessary to move for a sentence of imprisonment but felt able to differentiate between the roles played by Shahnowaz and Correia. The Crown moved for a sentence of twelve months’ imprisonment. Sentence and Observations of Court: Count 5: 180 hours Community Service Order. The Court stated that she had pleaded guilty to a

serious offence and the Court could quite understand why the Crown had moved for a custodial sentence. Indeed, the Court had even considered deportation at one point in its deliberations. Nevertheless, taking account of the mitigation and being of the view that Correia had been naive and under the influence of Shahnowaz, the Court felt able to impose a non-custodial sentence. Correia was ordered to perform 180 hours’ of community service and the Court took the opportunity to state that the appropriate sentence of imprisonment in lieu would indeed have been twelve months’ imprisonment as sought by the Crown. A.D. Robinson, Esq., Crown Advocate. Advocate A.J.D. Winchester for Mohammed Shahnowaz. Advocate J. Grace for Graciela Christina Correia.

JUDGMENT (of 10th July, 2003 re Graciela Christina Correia) THE BAILIFF: 1. Miss Correia you have pleaded guilty to a very serious offence of being concerned with the supply of heroin, and we quite understand why the Crown Advocate has moved for a custodial sentence. Indeed, as you heard me say earlier on, the case is so serious that we have given some consideration as to whether we should put proceedings in train to make a recommendation to the Lieutenant Governor that you should be deported from the Island.

2. The Court has taken into account all the matters urged by counsel on your behalf. We accept that you were to a certain extent under the influence of your co-accused, and that you were naïve in relation to what you were doing in his company. We are going, therefore, to impose a non-custodial sentence which will enable you to continue to care for your daughter. We want you to understand that if you do not comply with the Community Service Order which we are about to impose, or if you commit other offences of this nature and come back before the Court it is extremely likely that you will be sent to prison and therefore cause great distress, we have no doubt, to your child; and it may have other consequences in terms of your being permitted to remain in this Island as well.

3. We are going to impose a sentence of community service. You are ordered to do 180 hours community service to the satisfaction of the Community Service organiser, and we state that the sentence of imprisonment which we would otherwise have had in mind is one of 12 months’ imprisonment. We hope that you will take advantage of this chance which the Court is giving to you and that we will not see you again.

JUDGMENT (of 14th July, 2003 re Mohammed Shahnowaz) 4. Shahnowaz is to be sentenced on one count of possession with intent to supply heroin and one count of possession of cocaine. He was caught red handed in the act of supplying heroin to a third party who has subsequently been sentenced.

5. The total weight of heroin seized was 7.7 grams valued at approximately £3,000 at street value. The Crown Advocate has taken a starting point of 8 years’ imprisonment. Mr Winchester for the defendant has argued that this was too high. What we have to do is to assess the degree to which the defendant was engaged in commercial drug trafficking. He was in our judgment a retail distributor of Class A drugs.

6. It is clear, however, from the fact that his legitimate gainful employment over the past 18 years or so was limited to part-time employment that he was profiting from his illicit commercial activity. That is also indicated by the confiscation order which we have made. We agree that the proper starting point is one of 8 years’ imprisonment.

7. In mitigation Shahnowaz has pleaded guilty and has been co-operative with the police to the extent of naming his supplier and authorising his counsel to reveal that fact in open Court. That last factor was not taken into consideration by the Crown Advocate in moving conclusions. The Court has said before that it will encourage co-operation of this kind which it believes to be in the public interest. The more that drug traffickers appreciate that they may be identified by those with whom they deal, the greater the discouragement to engage in drug trafficking and the better for society as a whole.

8. We have taken into account the other mitigating factors set out in the Social Enquiry Report and in the address of counsel for the defence. We propose to reduce the conclusions by one year and you will be sentenced on count 2, to 3½ years’ imprisonment; and on count 3, to 3 months’ imprisonment, concurrent; making a total of 3½ years’ imprisonment. We finally order the forfeiture and destruction of the drugs. Authorities Whelan: Aspects of Sentencing Superior Court of Jersey (2nd Ed’n): pp 19-21: pp 41-4: Class A: Supply and possession with intent to supply: Rimmer & Others. Campbell &Ors –v- A.G. [1995] JLR 136. Rimmer & Ors. –v- A.G. [2001] JLR 373. McDonough –v- A.G. (28th September 1994) Jersey Unreported; [1994/193]. R –v- Raby [2003] EWCA 96. A.G. –v- Antunes & Ors [2003] JRC 074. Drug Trafficking Offences (Jersey) Law 1988. Drug Trafficking Offences (Miscellaneous Provisions) (Jersey) Law 1996. A.G. –v- Le Pavoux & Baumgärtner [2003] JRC075. A.G. –v- Amorim [2003] JRC061. A.G. –v- Kenward (6th March, 2000) Jersey Unreported; [2000/142].