Jersey Unreported Judgments

2002/207

ROYAL COURT

(Samedi Division)

 

30^th October, 2002

 

 

The Attorney General

-v-

Aaron John McDonagh

Oliver Munks,

Paul James Mohammed

 

Aaron John McDonagh

First Indictment

 

2 counts of:	receiving, hiding or withholding stolen goods: (counts 1, 2);
1 count of:	taking and driving away a motor vehicle without owner's consent, contrary to Article 28(1) of the Road Traffic (Jersey) Law 1956 (count 3);
1 count of:	driving without licence, contrary to Article 3(1) of the Road Traffic (Jersey) Law 1956 (count 4);
1 count of:	using a motor vehicle uninsured against Third Party Risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law 1948 (count 5).

 

Breach of 70 hours community service order made in Magistrate's Court on 28^th December, 2001, following conviction on 1 count of grave and criminal assault and 1 count of resisting police.

 

Age:     29.

 

Plea:    Guilty; Breach admitted.

 

Details of Offence:

Two break-ins occurred at two Pharmacies with a quantity of medication and prescribed drugs being stolen from each of the Pharmacies.  Munks pleaded not guilty to any involvement in the first break-in (which plea was accepted) but pleaded guilty to aiding or assisting in the second break-in by driving another person to the crime scene and acting as a look out.  He subsequently divided up the stolen items and retained some.  The stolen drugs were then taken to McDonagh's home address where the drugs were distributed to a number of people present at the premises including McDonagh.  McDonagh admitted being in possession of drugs stolen from the two break-ins.  Munks had parked his car illegally outside McDonagh's premises and the following day Munks, having been given a parking ticket, he was searched by a Police Officer who found a quantity of medication and prescribed drugs in Munks' vehicle together with a wooden stick-knife.  Munks claimed that he had kept the knife for his protection as his brother had previously been assaulted whilst in his car.

Later the same day McDonagh was found slumped in a street by a Police Officer having taken a heroin overdose.  Nearby was a car with its engine running and with a passenger asleep.  Enquiries revealed that the car belonged to McDonagh's mother and that McDonagh had taken his mother's vehicle without her consent or authority and at the time he did not have either a driving licence or insurance.  McDonagh subsequently admitted that he had taken the vehicle albeit that he had been under the influence of heroin and the prescribed drugs that he had taken.  Both men admitted during interview that they were heroin addicts.

McDonagh was in consequence of these new offences in breach of the Community Service Order imposed by the Magistrate's Court for grave and criminal assault involving a head butt and also for resisting arrest.

 

Details of Mitigation:

He pleaded guilty and was co-operative being open and frank with the Police in interview.  The stolen goods were of relatively low value and he had no involvement in the original break-ins/larcenies.  It is contended that the receiving charges were at the lower end of the scale and that McDonagh had simply allowed his premises to be used as a base for dealing out the drugs stolen.  He made no financial gain although he did benefit by having a share of the drugs.  His life was in chaos because of his heroin addiction.  He had not previously received a non-custodial sentence in the form of a treatment order.  This was not a soft option as it would deal with the underlying drug problem.  McDonagh was in dire straits and the Alcohol and Drug Service Report indicated that McDonagh's level of addition was such as to place him at risk of being a fatality.  It was requested that he be given one final opportunity to take advantage of the support that was available to overcome his heroin addiction

.

Previous Convictions:

Numerous for dishonesty, violence and public order.

 

Conclusions:

Count 1:	6 months' imprisonment;
Count 2:	6 months imprisonment, concurrent;
Count 3:	1 month's imprisonment;
Count 4:	£500 fine or 1 month's imprisonment, concurrent in default of payment;
Count 5:	1 month's imprisonment.

 

Sentences on counts 3, and, 5, concurrent with each other, but consecutive to sentences on counts 1 & 2.

Breach of community service order: 2 months' imprisonment; consecutive to sentences passed on indictment.

9 months' imprisonment, in total.

 

Sentence and Observations of Court:

 

Count 1,2,3,& 5:	Conclusions granted, with 18 months' disqualification from driving on counts 3 & 5;
Count 4:	£250 fine or 1 month's imprisonment.

 

Breach of community service order:  conclusions granted.

This is yet another case which shows the consequences of heroin addiction with McDonagh and Munks being drawn into offences of dishonesty because of their addition.  In McDonagh's case the root of his problems was his heroin addiction.  Now motivated to try and overcome that addiction.  However he failed to take advantage of the opportunities given to him in the past from the Court.  He had been placed on probation which he then breached and then having been placed on Community Service he also breached that.  Given his repeated failure to respond to non-custodial there was no alternative to custody. 

 

Oliver Munks

First Indictment

 

1 count of:	aiding, assisting or participating in breaking and entry and larceny (count 6A);
1 count of:	receiving, hiding or withholding stolen goods (count 7);
1 count of:	carrying offensive weapon without authority, contrary to Article 43(1) of the Firearms (Jersey) Law 2000 (count 9).

 

[On 26^th July, 2002 the Crown accepted not guilty pleas to counts 6 and 8].

 

Second Indictment

 

1 count of:

receiving, hiding withholding stolen goods (count 9).

 

[Pleas of not guilty to counts 8 and count 8A were accepted by the Crown].

 

Age:     24.

 

Plea:    Guilty.

 

Details of Offence:

First Indictment

Two break-ins occurred at two Pharmacies with a quantity of medication and prescribed drugs being stolen from each of the Pharmacies.  Munks pleaded not guilty to any involvement in the first break-in (which plea was accepted) but pleaded guilty to aiding or assisting in the second break-in by driving another person to the crime scene and acting as a look out.  He subsequently divided up the stolen items and retained some.  The stolen drugs were then taken to McDonagh's home address where the drugs were distributed to a number of people present at the premises including McDonagh.  McDonagh admitted being in possession of drugs stolen from the two break-ins.  Munks had parked his car illegally outside McDonagh's premises and the following day Munks, having been given a parking ticket, he was searched by a Police Officer who found a quantity of medication and prescribed drugs in Munks' vehicle together with a wooden stick-knife.  Munks claimed that he had kept the knife for his protection as his brother had previously been assaulted whilst in his car.

Later the same day McDonagh was found slumped in a street by a Police Officer having taken a heroin overdose.  Nearby was a car with its engine running and with a passenger asleep.  Enquiries revealed that the car belonged to McDonagh's mother and that McDonagh had taken his mother's vehicle without her consent or authority and at the time he did not have either a driving licence or insurance.  McDonagh subsequently admitted that he had taken the vehicle albeit that he had been under the influence of heroin and the prescribed drugs that he had taken.  Both men admitted during interview that they were heroin addicts.

McDonagh was in consequence of these new offences in breach of the Community Service Order imposed by the Magistrate's Court for grave and criminal assault involving a head butt and also for resisting arrest.

Second Indictment

Mohammed was seen by an off duty Police Officer acting suspiciously in the company of another male by a vehicle.   Mohammed gained entry to the vehicle as one of the doors was opened and stole a mobile phone.  When approached by the Officer Mohammed and his accomplice ran off but Mohammed was apprehended and found to be in the possession of the mobile phone.

Three break-ins occurred in two commercial premises and various items were stolen.  The total value of the goods stolen was approximately £10,000 and included a small metal safe.  Acting on information received the Police attended at Mohammed's home address where the safe was located and a number of items stolen from the premises were recovered.  A section of the safe had been removed and there was a distinctive smell similar to that of burnt metal evident in both the yard to the premises and inside the premises.  An angle grinder and spanner were found nearby.  One of the Officers who attended at Mohammed's flat noted the smell as he had smelt something similar earlier that day when Munks had come to the Police Station to sign on for the purposes of bail in relation to other offences.  It was accepted by the Crown that neither Mohammed nor Munks had played any part in the break-ins.  Mohammed admitted that he had received the various items found at his premises suspecting that they had been stolen.  It was the Crown's case that Munks had been responsible for grinding open the safe.  This was denied by him and his plea was entered on the basis that he had received the safe and £20 from the contents thereof.  It was the Defence's contentions that Munks had simply been present when the safe was opened which accounted for his sooty appearance at the Police Station and the smell of burnt metal on his clothing etc.

In consequence of these offences Mohammed was in breach of a Community Service Order imposed by the Magistrate's Court for offences of possession of cannabis and receiving, hiding or withholding stolen goods to the value of £2,000.  He had been sentenced to a 90 hour Community Service Order and the Magistrate had indicated he would otherwise have imposed a 3 month sentence in Youth Detention.

 

Details of Mitigation:

First Indictment

Munks had the benefit of his guilty pleas and he too was also a heroin addict.  His guilty pleas however were not entered at the first opportunity and he was therefore not deserving of a full one-third.  He was co-operative with the Police and the drugs stolen were of a relatively low value.  His counsel was instructed not to argue against a custodial sentence.  Whilst Munks had previous offences there had been a gap in offences between 1996 and 1999 and the non-custodial penalties imposed previously, he had completed satisfactorily.  Munks was to be sentenced on a second indictment with another co-accused on the same occasion and therefore defence counsel's submission related more to the totality principle rather than specific mitigation.  (See Unreported Judgment in the case of A.G. -v- Mohammed and Munks 30^th October, 2002).

Second Indictment

Munks had pleaded guilty to receiving the safe and £20.  It was accepted that he had not been involved in the break-ins and therefore his involvement was limited.  The defence contended that there was no real evidence to suggest that he had been responsible for opening the safe in contrast to being simply present when it was opened.  Any doubts should be in his favour.  There had been a gap in his previous offending and he had previously completed satisfactorily non-custodial options imposed.  Defence counsel was instructed not to oppose a custodial sentence and therefore submissions were principally in relation to the totality principle for sentencing on both Indictments.  It was suggested that the Crown's Conclusions were excessive and not in keeping with Munks' criminality.  References were provided.

 

Previous Convictions:

First Indictment and Second Indictment

Numerous for dishonesty, including breaking and entering and receiving stolen property, possession of controlled drugs, grave and criminal assault and motoring offences.

 

Conclusions:

First Indictment

 

Count 6a:	15 months' imprisonment;
Count 7:	9 months' imprisonment concurrent;
Count 9:	3 months' imprisonment, consecutive.

 

Second Indictment

 

Count 9a:

18 months' imprisonment, consecutive to sentences passed on First Indictment

 

Sentence and Observations of Court:

Conclusions granted, save that sentence of 12 months' imprisonment passed on count 9a of Second Indictment.

Total: 2½ years' imprisonment.

 

First Indictment

Munks had been released on bail on the first Indictment but within a short space of time had re-offended.  He pleaded guilty to which he was entitled to substantial credit and the Crown was incorrect to suggest that he had previously failed to respond to non-custodial penalties.  Accepted that custodial sentence was inevitable.  The Court felt able, in the light of the mitigation available to reduce Conclusions. 

Second Indictment

He had been released on bail on he first Indictment but within a short space of time had re-offended.  Despite the Crown's allegation that Munks played an active part in opening the safe, the Court accepted there was a lack of evidence to substantiate it and therefore accepted the Defence version of events.  He was entitled to substantial credit for his guilty plea and the Crown was incorrect to suggest that he had previously failed to respond to non-custodial penalties.  Munks had accepted that a custodial was inevitable.  The offence was a completely separate incident committed whilst on bail.  The Court took a serious view for this offence.

 

Paul James Mohammed

Second Indictment

 

1 count of:	larceny (count 1).
3 counts of:	receiving, hiding or withholding stolen goods (counts 3,5, 7).

 

[The Crown accepted not guilty pleas to counts 2, 2A, 4, 4A, 6, 6A].

 

Breach of 90 hour community service order made on 27^th March, 2002, in the Magistrate's Court following conviction on 1 count of receiving, hiding or withholding stolen goods and 1 count of possession of cannabis.

 

Age:     20.

 

Plea:    Guilty; breach admitted.

 

Details of Offence:

Mohammed was seen by an off duty Police Officer acting suspiciously in the company of another male by a vehicle.   Mohammed gained entry to the vehicle as one of the doors was opened and stole a mobile phone.  When approached by the Officer Mohammed and his accomplice ran off but Mohammed was apprehended and found to be in the possession of the mobile phone.

Three break-ins occurred in two commercial premises and various items were stolen.  The total value of the goods stolen was approximately £10,000 and included a small metal safe.  Acting on information received the Police attended at Mohammed's home address where the safe was located and a number of items stolen from the premises were recovered.  A section of the safe had been removed and there was a distinctive smell similar to that of burnt metal evident in both the yard to the premises and inside the premises.  An angle grinder and spanner were found nearby.  One of the Officers who attended at Mohammed's flat noted the smell as he had smelt something similar earlier that day when Munks had come to the Police Station to sign on for the purposes of bail in relation to other offences.  It was accepted by the Crown that neither Mohammed nor Munks had played any part in the break-ins.  Mohammed admitted that he had received the various items found at his premises suspecting that they had been stolen.  It was the Crown's case that Munks had been responsible for grinding open the safe.  This was denied by him and his and his plea was entered on the basis that he had received the safe and £20 from the contents thereof.  It was the Defence's contentions that Munks had simply been present when the safe was opened which accounted for his sooty appearance at the Police Station and the smell of burnt metal on his clothing etc.

In consequence of these offences Mohammed was in breach of a Community Service Order imposed by the Magistrate's Court for offences of possession of cannabis and receiving, hiding or withholding stolen goods to the value of £2,000.  He had been sentenced to a 90 hour Community Service Order and the Magistrate had indicated he would otherwise have imposed a 3 month sentence in Youth Detention.

 

Details of Mitigation:

The offence of larceny of the mobile phone was a stupid offence having committed it in close proximity to the Police Station.  It was an opportunistic larceny.  Mohammed was not a sophisticated criminal.  He had the benefit of his guilty plea and he had generally been co-operative with the Police.  It was not suggested that he was acting as a fence or that he would profit from handling the stolen property.  The reports confirmed that Mohammed had a long term drugs problem and was a heroin addict at the time of the offending.  Whilst on remand he had undergone a detoxification course.  Despite breach of Community Service Order, the Defence contended that Mohammed could be dealt with by way of a non-custodial sentence and in particular by way of a treatment order.  This would not be a soft option and could be justified because of his age and a change in his motivation to change his lifestyle.  The defence therefore sought an individualised sentence.  That approximately £7,500 of the goods were found at Mohammed's premises and therefore recovered and returned to its lawful owners.

 

Previous Convictions:

Numerous for dishonesty including receiving, hiding or withholding stolen property, and possession of controlled drugs.

 

Conclusions:

 

Count 1:	2 months' youth detention;
Count 3:	12 months' youth detention;
Count 5:	12 months' youth detention;
Count 7:	2 years' youth detention.

 

(Counts 3, 5, 7: concurrent with each other, but consecutive to count 1 sentence.

Breach of community service order : 3 months' youth detention, consecutive to sentences passed on indictment.

 

Sentence and Observations of Court:

Conclusions granted, except that sentence on count 7 reduced to 15 months'.

Total: 20 months' youth detention.

This is yet another case which shows the consequences of heroin addiction with the two accused being drawn into offences of dishonesty because of their addiction.  In relation to Mohammed's offending it  was accepted that all of the items has been brought to him at the same time and that his involvement was limited.  However, it was still a serious offence.  He had the benefit of a guilty plea and his youth.  He was not a sophisticated offender.  He was now determined to try and conquer his heroin addiction.  They were however serious offences committed when he had already been given an opportunity by the Court in March.  He ignored that opportunity.  Despite his age no alternatives for custodial sentence because of the totality of his offending and his failure to respond to previous non-custodial sentences.

 

J. C. Gollop, Esq., Crown Advocate.

Advocate C.R.G. Deacon for A.J. McDonagh

Advocate R. Tremoceiro for O. Munks

Advocate S.J. Young for P.J. Mohammed

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        This is yet another case which shows the consequences of heroin addiction.  All three of the defendants before us are heroin addicts who have been drawn into offences of dishonesty because of their addiction.

2.        We will deal first with McDonagh.  Stand up McDonagh.  You are before us for two counts of receiving drugs stolen from pharmacies together with motoring offences in relation to your mother's car.  You are also in breach of a community service order imposed by the Magistrate's Court.  As we say the root of your problem is your heroin addiction.  According to the reports you say that you are now motivated to try and overcome this addiction; but you have failed to take advantage of the opportunities which the Courts have given you.  First, they placed you on probation and then, when you breached that probation, they imposed community service despite your previous convictions.  In mitigation we take into account your guilty plea; the fact that very few drugs were received by you; the fact that it was your mother's car that you took; and we have certainly considered very carefully your expressed motivation to overcome your drug habit and the other matters referred to in the Social Enquiry Report, the Drug and Alcohol Report and by your Advocate.  But we have to say that your repeated failure to respond to the opportunities which the Courts have given you means that there is no alternative in our judgment to a custodial sentence.  The sentence of the Court therefore is as follows: on count 1: 6 months' imprisonment; count 2: 6 months' imprisonment, those being concurrent; count 3: 1 month's imprisonment; count 4: £250 fine or 1 month in default of payment to be concurrent; count 5: 1 month's imprisonment; counts 3 and 5 and the default sentence in count 4 to be concurrent but consecutive to the sentences on counts 1 and 2 as they are unrelated.  In relation to counts 3 and 5 we disqualify you from holding a licence for 18 months.  For the breach of community service on the 2 charges, the Magistrate had indicated a sentence of 2 months' imprisonment.  That could be said to be lenient but in the light of his comment, we think it is the sentence we shall impose.  Accordingly, we impose a sentence of 2 months' on each of those charges concurrent with each other but consecutive to the other sentences, making a total of 9 months imprisonment.

3.        Next we consider Munks.  On the first indictment you are before us for 1 count of aiding and abetting a burglary of a pharmacy for drugs, and 1 count of receiving some of those drugs, together with 1 count of possessing an offensive weapon, namely a stick knife.  You were released on bail but within a very short time you committed the offence on the second indictment: receiving a safe stolen from the Corbiere Phare Hotel.  The Crown allege that you played an active part in opening this safe and have moved their conclusions on this count accordingly.  You have denied that and we have listened to what your Counsel has said.  You have asserted that you were merely present, in close proximity, as the safe was opened and we accept that, on the evidence before the Court, we should proceed on your version of events.  In mitigation we take account of your guilty plea; you are entitled to substantial credit for that; and we also note that the Crown was incorrect to say that you had failed on previous occasions to respond to sentences.  In essence your advocate accepted that prison was inevitable but asserted that the overall total was too much in view of the mitigation and in view of the totality principle.  We think that the conclusions can be reduced to take account of the matters we have referred to.  So, on the first indictment, count 6A, (breaking and entry): 15 months' imprisonment; count 7: 9 months'  imprisonment; count 9: 3 months' imprisonment.  The sentences on counts 6A and 7 to be concurrent but on count 9, (possession of the knife) consecutive.  We also order the forfeiture of the knife.  On the second indictment we impose a sentence of 12 months' imprisonment to be consecutive to the offences on the first indictment.  The matter was completely separate and was, of course, committed whilst you were on bail for those first offences and the Court always takes a serious view of offences committed in those circumstances.  The total is therefore 2 ½ years.

4.        Finally, we come to you Mohammed.  You are before the Court on three counts of receiving proceeds of burglaries and one count of larceny of a mobile phone from a car.  Furthermore, you too are in breach of a community service order for previous offences of receiving and of possession of cannabis.  In relation to count 7 the value of the goods involved was some £6,785.  This was a large amount but we accept that all the items were brought to you at the same time and that your rôle was limited in the way that your Counsel has submitted.  Nevertheless, these were all serious offences.  In mitigation we take account of your guilty plea; of the fact that these were not sophisticated offences on your part; of your youth, which is most important, and again we have noted your determination to try and conquer your heroin addiction and of the fact that you have undergone detoxification in prison.  But again, these were serious offences committed whilst you had been given an opportunity by the Court on a previous occasion when it a imposed community service order in March.  You simply ignored that opportunity by committing these several offences.  Despite your age we have concluded that there is no alternative to a custodial sentence, first on the grounds that the totality of the offending cannot be dealt with by way of a non-custodial sentence, and secondly because of your failure to respond to non-custodial sentences imposed before.  The sentence of the Court therefore is as follows: on count 1, 2 months' youth detention; count 3, 12 months youth detention; count 5, 12 months' youth detention; count 7, 15 months' youth detention; those latter three to be concurrent but consecutive to count 1.  For the breach of the community service the Magistrate had indicated a sentence of 3 months', and that is what we impose, concurrent on each charge but consecutive to the other sentences.  In other words the total in your case is 20 months' youth detention and I must warn you that you may be liable to supervision upon your release. 

5.        In relation to all three defendants we express the hope that they will take advantage of the facilities offered in prison to try and overcome their heroin dependency.

6.        We would like to end briefly by saying this: we would like to commend PC Houiellebecq for his powers of observation when noticing, when off duty, the suspicious activity in relation to the theft of the mobile phone and taking steps to apprehend the offender.  We would also like to commend PC Baker for his powers of observation in noticing that the smell at Mohammed's premises was similar to the smell which Munks had upon him when he reported for a bail condition the day before.

Authorities

A.G. -v- Wylie (6^th September, 2001) Jersey Unreported; [2001/191].

Wylie -v- A.G. (17^th January, 2002) Jersey Unreported; [2002/13].

R -v- Bernard Webbe & Ors. [2001] EWCA 1217; [2002] 1 Cr App R(S) 22.

R. -v- Rigg (4^th July, 1997) TLR.

Gill -v- A.G.  (29^th September, 1999) Jersey Unreported; [1999/160].

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

Criminal Justice (Community Service Orders) (Jersey) Law 2001.

Whelan:  Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp 153-4; 168-171; 282-284.

Archbold (2002 Ed'n): paras 21-280 to 289.