Jersey Unreported Judgments

Royal Court (Superior Number)

(exercising the appellate jurisdiction conferred on it by

Article 22 of the Court of Appeal (Jersey) Law, 1961

2 June 1998

John Alexander Crawford

-v-

AG

Application for leave to appeal against a total sentence of 2½ years imprisonment, imposed by the Inferior Number of the Royal Court on 23 January 1998, on a guilty plea to:

2 counts ofillegal entry and larceny:

count 1: on which count sentence of 12 months imprisonment was passed.

count 3: on which count sentence of 3 months imprisonment concurrent, was passed.

2 counts ofbreaking and entering and larceny:

count 2: on which count sentence of 2 years imprisonment, concurrent was passed.

count 4: on which count sentence of 2 years and 3 months imprisonment, concurrent, was passed 2 counts of assault:

count 5: on which count sentence of 3 months imprisonment, consecutive was passed.

count 6: on which count sentence of 3 months imprisonment, concurrent, was passed.

Leave to appeal was refused by the Deputy Bailiff on 12 February 1998; the application was renewed to the plenary Court, under Article 39 of the Court of Appeal (Jersey) Law, 1961, on 16 February 1998.

Advocate DJ Petit for the Appellant

JGP Wheeler Esq., Crown Advocate

JUDGMENT

THE DEPUTY BAILIFF: The appellant is aged 42, and is a married man with children. The offences to which he pleaded guilty occurred over a period of 7 months. The first break-in was at the Beach Hotel in Gorey; entry was gained by smashing the rear fire doors of the hotel with a piece of wood. The hotel at the time was closed for refurbishment.

The appellant later sold a television set that he had stolen from the hotel for £30, with a false story as to how he had obtained it. A volley-ball net was also stolen. Those items totalled £300 in value. The television set has not been recovered.

During the afternoon of Sunday, 15 June the appellant drove to a private house in St Ouen where he had been employed as a labourer. The appellant broke into the garage and stole property, and then using a ladder entered the first floor of the property, again effecting entry by force, using a flat bladed instrument.

The items stolen there were mainly tools, but included a Royal Doulton dinner service and two French dinner services, the value of the goods amounted to £4,000, and many - including the dinner services - have not been recovered,.

On 25 September, the appellant stole a sledgehammer from a building site at Georgetown, and tried to sell it to a man called Compton at the bookmakers across the Bagot Road. On 28 September, the appellant was drinking heavily in Comptons flat, in Gorey Village. He was watching the flat of a Mr and Mrs Sutherland through the window; it is perhaps relevant to note that the appellant himself lives in Gorey Village. It was a Sunday and when the Sutherland’s left for Sunday lunch, the appellant took his socks off and replaced his shoes, the socks were apparently to put on his hands to leave no fingerprints.

He broke into the Sutherlands flat with a crow-bar and stole a large number of personal items which he put in a large hold-all. The appellant had told Compton he was going to break in and did so. He returned with his "swag" to Comptons flat, where he threatened him to make him remain silent. He then returned to the Sutherlands home and stole more items. The commercial value was some £8,000.

Mrs Sutherland fortunately returned home with her mother and daughter, and it was her vigilance that led to the appellants being discovered hiding fully clothed in Comptons shower. He had been drinking heavily and in his drunken state gave a cock and bull story to the police, but the stolen property, of course, was recovered.

In the course of being arrested he became violent, and attempted at one stage to bite a police officer. Later at the police station he attempted to head-butt the same officer, and had to be physically restrained.

The appellant was sentenced to a total of 2 years and 6 months, and the appeal is founded not on the fact that a custodial sentence was not correct, but that in all the circumstances, it was manifestly excessive and/or wrong in principle.

It is necessary for the purposes of this appeal to analyse to some extent the Court’s findings on each of the four counts, but in particular on counts 2 and 4, and most especially count 4 because that count - the break-in at Gorey Village - received the longest sentence of 2 years and 3 months, as opposed to the 2 years and 6 months moved for by the Crown.

On count 1, the appellant received a sentence of 12 months in prison, this was the sentence moved for by the Crown, and of course there was a consecutive sentence of 3 months for the attempted assault on 2 counts, of the police officer.

Before examining the authorities, we need to say something in general terms. The law has always regarded breaking and entering as a serious offence, that must be said. Nothing can be more disquieting to a householder than to know that the sanctity of his or her home has been violated. That can cause both fear and distress, and it is these particular elements that a Court will always emphasis when sentencing an offender.

Citizens of this Island have every right to feel safe whilst they are in their own homes, and any attempt to break into private property will leave a victim with a sense of insecurity and a sense of violation, that is whether they are in the property at the time or return later. It is that sense of insecurity that can lead to an increase in sentence if, for instance, the breaking and entering takes place at night, particularly if the householder is in the home at the time, however, that does not mean that the sense of violation is any less when a householder - absent during the day - returns to find his house burgled.

Looking at individual cases, as we have this afternoon, can in our view be a sterile exercise, there is bound to be a difference between an opportunist crime - perhaps with a hand thrust through an open window - and a carefully planned crime aimed at stealing items of high value. Professional burglars are just that; they prey on their fellow-citizens on a regular basis, and sometimes of course they couple their crimes with acts of violence on the infirm or the weak. Now, those cases deserve to be punished with the full force of the law. Others will, of course, be more opportunist than planned. Some breaking and entering - sadly increasingly in this Island - will have been committed to gain money for drug addiction, but of course self-induced addiction cannot be relied upon as a mitigating fact.

We have considered all the cases cited before the Court below, and always a Court must have regard - as we have said - to the fact that the public of this Island regard with abhorrence those who break into the houses of others. We feel that having regard to the cases cited in Whelan: "Aspects of Sentencing in the Superior Courts of Jersey", particularly the cases upon which Mr Petit is relying this afternoon - Attorney General -v- Da Silva, Allo -v- Collins, and the English case of R -v- Edwards and Brandy - that a proper sentencing bracket would indicate perhaps 3 to 5 years for properties broken into during the day and 4 to 6 years for private properties broken into and entered by night, but we must exercise caution in this regard when trying to fix a bracket for sentencing, because in every case there will be mitigating circumstances, not least of which will be a plea of guilty, and in every case there will be aggravating circumstances, not least of which is self induced intoxication.

It is because the mitigating and aggravating circumstances will be different in each case that we can only give the broadest of guidelines. The learned Bailiff said as much in the case of Da Silva, where he carefully reviewed all the authorities. At page 3 of that judgment he said this:

Looking for a moment at count 4, the break-in at Gorey Village, the Court in its judgment said this:

Mr Petit has criticised that paragraph, but we can find no fault with it on the facts as they were outlined in the statement of case by the learned Crown Advocate.

The appellant has pleaded that his actions were spontaneous, that affirmation does not lie well with the facts: the appellant watched the property, told Compton he would break in, saw the family leave, put socks on his hands, broke in to the flat with a crow-bar and returned to Compton to threaten him and went once more to steal personal items.

What we think the Court did was to take into account the 7 year gap since the appellants last offence, but each property was entered into by force and we can see clear evidence of planning in each offence. The Court may - but we are not sure that it did - have ignored that these offences were committed in breach of a binding over order wherein, on the 24 January, 1997, the appellant was bound over for three years for committing a grave and criminal assault on his wife.

There was of course the remorse that he has shown to the Court, although his letter to the Court, hand written, was dated 22 January, the day before his appearance in Court for sentencing, and we do not think that any Court would be easily persuaded that an addict is genuinely determined and able to conquer his addiction.

But, before coming into Court, we have studied the carefully prepared reports that were before the Court below. Despite Mr Petits valiant attempts however, we can see no reason why the Court below was bound by a two year starting point or any other starting point and we cannot see that it was wrong in principle in the decision that it reached.

Leave to appeal is refused, and we have to say this, that had members of this Court been sitting with the facts expressed by the Crown Advocate, the appellant might well have received a longer sentence.

Authorities

Whelan: "Aspects of Sentencing in the Superior Court of Jersey": pp.64-69

Ibid.: Noter-Up: May, 1996 - May, 1997: pp.25-29

A.G.-v-Da Silva (4 December 1997) Jersey Unreported

R -v- Edwards, Brandy (1^st July, 1996) TLR 384

A.G -v- O’Shea (11 January 1991) Jersey Unreported

A.G -v- Allo & Collins (1983) JJ 85