Jersey Unreported Judgments

2000/172

3 pages

ROYAL COURT

(Samedi Division)

 

1^st September, 2000

 

Before:  M.C. St.J. Birt, Esq., Deputy Bailiff and

Jurats Myles and Le Breton

 

The Attorney General

-v-

William Stuart Swinburne

 

 

4 counts of:  breaking and entering and larceny (counts 1, 2, 3 and 4);

1 count of:   breaking and entering with intent to commit a crime (count 5).

 

Plea:  Guilty

 

Age:   43.

 

Details of Offence:

 

Three counts (Counts 1,2, and 5 ) concerned break-ins by night at commercial premises where the accused found little or nothing to steal.  Count 3 did not involve the theft of property of significant value but it was a mean offence as the flat concerned was occupied by someone who had lent the accused money.   The break-in occurred during the day time when the occupant was not in the premises.  Count 4 was a serious offence involving a pre-planned break-in by night at Babylon Nightclub using inside information to gain access to the safes from which £9,781 in cash was stolen.  All the offences were committed to fund the accused's heroin addiction.

 

Details of Mitigation:

 

The accused pleaded guilty to the Indictment and was co-operative with the police.  The accused also procured the return of a sizeable proportion of the cash stolen from Babylon.  Whilst the accused had a long record of conviction, there were gaps in his offending  and only one prior conviction for an offence of this type which occurred many years before.   Since arrest in January 2000, the accused had remained free of drugs and both the Probation and the Alcohol & Drug Service were supportive and favoured the imposition of a non-custodial sentence.  The accused also had severe health problems, admittedly attributable to his alcohol and drug abuse, which could be said to be life threatening, and the accused sought probation from the Court as an act of mercy.

 

Conclusions:

 

Count 1:   6 months' imprisonment;

Count 2:   6 months' imprisonment, concurrent;

Count 3:   6 months' imprisonment, concurrent;

Count 4:   12 months' imprisonment, concurrent;

Count 5:   6 months' imprisonment, concurrent.

TOTAL:  12 months' imprisonment.

In accordance with A.G-v- Aubin (1987-88)  JLR Note 19, the Crown sought a custodial sentence.  The Crown considered a total sentence of two years imprisonment right for the offending but moved for a total sentence of 12 months' imprisonment in light of the mitigation.  !2 months' imprisonment was sought in relation to the break-in at Babylon and sentences of 6 months' imprisonment were sought in relation to the other counts, all to run concurrently.

 

Sentence and Observations of the Court:

 

1 year Probation Order with 120 hours' Community Service, concurrent, on each count; to attend Drugs and Alcohol Service.

The Court considered that ordinarily the Crown was right and that a 2 year sentence of imprisonment was appropriate.  In light of the mitigation and as an act of mercy, the Court was minded to impose probation.  The Court noted that the English Court of Appeal decision in R -v- Bernard had been adopted in A.G -v- Gosselin and the accused was able to bring himself within the fourth paragraph of the principles enunciated by the English Court of Appeal in the Bernard decision  (reduction in sentence due to ill health as an act of mercy).

 

 

 

A.D. Robinson, Esq., Crown Advocate.

Advocate R. Juste for the accused.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This defendant is a heroin addict.  He has admitted that he carried out these burglaries to fund his drug habit.  The most serious offence was the break-in at the 'Babylon' nightclub which was clearly pre-planned and resulted in the theft of a considerable sum of money.

 

2.            We agree with the Crown that in the ordinary way this defendant could have expected to receive a sentence of two years' imprisonment.

 

3.            However, Miss Juste has put forward a number of matters.  She has referred to her client's guilty plea and to the fact that on some of the counts he wrote his own indictment; she has also drawn our attention to the fact that he returned the bulk of the money stolen from 'Babylon', and has pointed to the significant efforts he has made since January to conquer his long-standing heroin addiction and generally to turn his life around; and we certainly take full note of that.  Miss Juste has in addition mentioned the other mitigation available on the papers and finally referred us to her client's medical condition which depicts a somewhat sorry picture.

 

4.            Miss Juste has further quoted from R -v- Bernard [1997] 1 Cr.App.R.(S) 135, the principles of which were adopted by this Court in the case of AG -v- Gosselin (31^st March, 2000) Jersey Unreported.  She submits that the medical condition in this case comes within the fourth paragraph of the principles set out in Bernard, namely that "an offender's serious medical condition might enable the court as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate".

 

5.            We have taken all these factors into account and we have concluded that, as an act of mercy, we can deal with this by way of a non-custodial sentence.

 

6.            Stand up, please, Swinburne.  The Court is going to place you on probation for one year; it will impose a condition that you attend the Drugs and Alcohol Service as required; that you remain abstinent from all opiates; and that you submit yourself to random supervised urine analysis as required by the Drugs and Alcohol Service.  We also order that you undertake 120 hours of Community Service.

 

7.            If you breach any of those conditions you will be brought back before the Court and you will probably find yourself being sent to prison.  You must count yourself extremely fortunate that the Court has not imposed a prison sentence on this occasion.

Authorities

 

 

AG -v- Aubin (14^th May, 1987) Jersey Unreported; (1987-88 JLR N-19.

 

AG -v- Gaffney (5^th June, 1995) Jersey Unreported.

 

R -v- Bernard [1997] 1 Cr.App.R.(S) 135.

 

AG -v- Gosselin (31^st March, 2000) Jersey Unreported.

 

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

 

Ibid:  Noterup:  May, 1996 - 1997: P.20.