Jersey Unreported Judgments

 2002/91

ROYAL COURT

(Samedi Division)

 

2^nd May 2002

 

 

The Attorney General

-v-

Mario Bruno Catanho;

Fabio Ruben Fernandes Caires

Valdemar José Jorgé De Matos

Mario Bruno Catanho

 

2 counts of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978. Count 1: Cannabis resin. Count 6: Cannabis resin.
1 count of:	Conduct likely to cause breach of the peace (count 2).
1 count of:	Larceny (count 3).
1 count of:	Breaking and entering and larceny (count 10).

 

[On 8^th March, 2002, the Defendant pleaded not guilty to counts 4, 5 and 15, of the Indictment.  Counts 4 and 5 were withdrawn, but are to remain on the Court file; on Count 15 the Crown accepted the not guilty plea].

 

Age:     21

 

Plea:    Guilty

 

Details of Offence:

 

Disgraceful catalogue of offending by the three defendants who were all unemployed and of no fixed abode at time of arrest.  Counts 9, 10, 11 and 12 were breaking and entering into private residential properties; in Count 9, female occupant found defendant in her bedroom:  Count 10 the victim who was nearly 70 had money stolen which was set aside for the funeral of his wife who had died two weeks earlier.  Count 21- indecent assault - involved De Matos grabbing the buttocks of a 15 year old girl.  He then committed a grave and criminal assault (punching and kicking to body) upon her boyfriend (Count 22), although fortunately no serious injuries.

 

Details of Mitigation:

 

Difficult upbringing, poor parental rôle models.  Count 16 and 17 - breaking and entering - were for the purpose of shelter and use of washing facilities.

 

Previous Convictions:

 

8 previous convictions.  On 21^st October, 1998 he had been bound over to leave the Island for 3 years.

 

Conclusions:

 

Count 1:	3 weeks' imprisonment.
Count 2:	3 weeks' imprisonment.
Count 3:	1 month's imprisonment.
Count 6:	3 weeks' imprisonment.
Count 10:	2 years' imprisonment, all concurrent.

 

Total: 2 years' imprisonment, deportation recommended.

 

Sentence and Observations of Court:

 

Count 1:	3 weeks' imprisonment.
Count 2:	3 weeks' imprisonment.
Count 3:	1 month's imprisonment.
Count 6:	3 weeks' imprisonment.
Count 10:	18 months' imprisonment, all concurrent.

 

Total: 18 months' imprisonment, deportation recommended.

 

Fabio Ruben Fernandes Caires.

 

1 count of:	Assault (count 7).
2 counts of:	Larceny (counts 8 and 13).
1 count of:	Breaking and entering with intent to commit a crime (count 9).
2 counts of:	Breaking and entering and larceny (counts 11, and 12).
1 count of:	Breaking and entering (count 16).

 

[On 8^th March, 2002, the Crown withdrew counts 17 and 18 of the Indictment].

 

Age:     19

 

Plea:    Guilty (on count 16 to illegal entry, which plea the Crown accepted).

 

Details of Offence:

 

See Catanho.

Details of Mitigation:

 

See Catanho.

 

Previous Convictions:

 

1 previous - larceny.

 

Conclusions:

 

Count 7:	3 months' youth detention.
Count 8:	1 month's youth detention.
Count 9:	24 months' youth detention.
Count 11:	24 months' youth detention.
Count 12:	24 months' youth detention.
Count 13:	1 month's youth detention.
Count 16:	12 months' youth detention, all concurrent

 

Total: 24 months' youth detention, deportation recommended.

 

Sentence and Observations of Court:

 

Count 7:	3 months' youth detention.
Count 8:	1 month's youth detention.
Count 9:	18 months' youth detentions.
Count 11:	18 months' youth detention.
Count 12:	18 months' youth detention.
Count 13:	1 month's youth detention.
Count 16:	12 months' youth detention.

 

Counts 8, 9, 11, 12, 13 and 16 concurrent; count 7 consecutive: Total: 21 months' youth detention, deportation recommended.

 

Valdemar José Jorgé De Matos

 

1 count of:	Assault (count 7).
3 counts of:	Breaking and entering and larceny (counts 10, 12, 20).
1 count of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978. Count 14: Cannabis resin.
1 count of:	Breaking and entering (count 16).
2 counts of:	Malicious damage (counts 17, 18).
1 count of:	Indecent assault (count 21).
1 count of:	Grave and Criminal assault (count 22).

 

[On 8^th March, 2002, the Crown withdrew count 19 of the Indictment].

 

Age:     20

 

Plea:    Guilty (on count 17 the Crown accepted a reduced valuation of the damage, and on count 20 a reduced valuation of the goods stolen).

 

Details of Offence:

 

See Catanho

 

Details of Mitigation:

 

See Catanho

 

Previous Convictions:

 

2 previous: Larceny and cannabis.

 

Conclusions:

 

Count 7:	3 months' youth detention.
Count 10:	24 months' youth detention.
Count 12:	24 months' youth detention.
Count 14:	1 week's youth detention.
Count 16:	12 month's youth detention;
Count 17:	1 month's youth detention
Count 18 :	1 month's youth detention
Count 20:	24 months' youth detention
Count 21:	3 months' youth detention
Count 22:	6 months' youth detention, all concurrent.

 

Total: 24 months' youth detention, deportation recommended.

 

Sentence and Observations of Court:

 

Count 7:	3 months' youth detention.
Count 10:	18 months' youth detention.
Count 12:	18 months' youth detention.
Count 14:	1 week's youth detention.
Count 16:	12 month's youth detention.
Count 17:	1 month's youth detention.
Count 18 :	1 month's youth detention.
Count 20:	18 months' youth detention.
Count 21:	3 months' youth detention.
Count 22:	6 months' youth detention.

 

Count 7 and 22 concurrent, but consecutive to the rest: Total: 24 months' youth detention.

 

 

Mrs. S. Sharpe, Crown Advocate.

Advocate M.L. Preston for M.B. Catanho.

Advocate Mrs. S.A. Pearmain for F.R.F. Caires.

Advocate A Clarke for V.J.J. de Matos.

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        These defendants committed a series of offences last year.  All three were unemployed and of no fixed abode at the time.  We will deal first with Mr. Catanho.  He is before the Court for 5 offences, comprising one count of breaking and entry, 2 counts of possession of cannabis, 1 count of breach of the peace and 1 count of larceny.

2.        This Court has repeatedly said that breaking and entry of residential property is a serious offence.  It leads to great distress on the part of victims and often leaves them with a sense of violation of their own homes.

3.        We take the following matters into account in mitigation: although now 21, he was only 20 at the time of the offences; he has pleaded guilty; he had a very troubled background in Madeira; and he has the support of his girlfriend.  We have read her letter to us, very carefully, and we have no doubt of the strength of her feelings.  Mr Preston has submitted that we should give this defendant a chance by imposing a non-custodial sentence.  Although Article 4 Criminal Justice (Young Offenders) (Jersey) Law 1994 does not technically apply to him, we have considered this case as if it did because he has only just turned 21.

4.        Having considered the matter carefully we have concluded that his offending is so serious that a non-custodial penalty is not justified, and we also note that he has failed to respond to probation orders made in the past.  However, we think that his involvement is less than that of the 2 co-accused and we propose therefore to reduce the conclusions.  The sentence is as follows: on count 1, 3 weeks' imprisonment; count 2, 3 weeks' imprisonment; count 3, 1 month's imprisonment; count 6, 3 weeks' imprisonment, count 10, 18 months' imprisonment, all of those to be concurrent, making 18 months in total.

5.        We consider next the question of deportation.  In view of these offences and his previous record, we are in no doubt that the defendant's continued presence in the Island is detrimental.  However, we must take into account his personal connections with the Island, and the effect on innocent people.  His girlfriend is Jersey born, but otherwise his family are in London or in Portugal.  In the circumstances we do not think that the hardship caused to his girlfriend outweighs the detriment caused to the Island, and we therefore make a recommendation for deportation.

6.        We turn now to Mr Caires.  He is before the Court for 7 offences: 3 breaking and entry, 1 illegal entry, 2 larcenies and 1 assault.  Mrs Pearmain has argued for a non-custodial sentence.  She has referred amongst other matters to his guilty plea, his age (20), his difficult upbringing in Madeira, and the fact that, although he has only been in Jersey since February, 2001, he had held down a job and accommodation until shortly before these offences, which all took place over a short time span of 3 - 4 weeks when he was homeless and unemployed.  She has referred us to a number of other instances in which the Court felt able to impose a non-custodial sentence for offences of breaking and entry.  Each case turns on its own facts and on the strength of the mitigation available in particular cases.  We have concluded that in this case the offending is so serious that a non-custodial penalty cannot be justified.  However, again, we think that the difference in the degree of criminality between the accused must be reflected in the sentence, and we are therefore reducing the conclusions slightly.

7.        The sentence is as follows: on count 7, 3 month's youth detention; count 8, 1 month's youth detention; count 9, 18 months' youth detention; count 11, 18 months; count 12, 18 months; count 13, 1 month, and count 16, 12 months.  All of them, except count 7, are concurrent; but count 7, which is the assault, is consecutive.  The total sentence, therefore, is one of 21 months' youth detention.  As to deportation we again conclude that, in the light of these offences and the other offences he has committed since he has been here, his continued presence in the Island is detrimental to the community.  In his case he only came to the Island in February 2001, he has one or more aunts and cousins here, but both parents and his sisters live in Madeira.  In the circumstances, we do not think that his personal circumstances or those near him militate strongly against deportation and we therefore recommend deportation.

8.        We come lastly to De Matos.  He is before the Court for the largest number of offences, namely 10, comprising 3 breaking and entering, 1 illegal entry, 2 malicious damage; possession of cannabis; indecent assault; grave and criminal assault; and assault.

9.        Again, amongst other matters, Mr Clarke urged in mitigation, the guilty plea, his age (19), his remorse, the fact that, like the others, the offences were committed when he was homeless, that his previous convictions are very minor, and that he has a troubled background.  Mr Clarke urged that we impose a non-custodial sentence.  We again conclude that the totality of offending was such that a non-custodial penalty cannot be justified.  Furthermore, we think that the aggregate conclusions of the Crown were correct although we are going to vary the way they were reached.  The sentence is as follows: on count 10, 18 months' youth detention, count 12, 18 months, count 14, 1 week, count 16, 12 months, count 17, 1 month, count 18, 1 month, count 20, 18 months, count 21, 3 months, count 22, 6 months and count 7, 3 months.  Counts 7 and 22 are concurrent with each other, but consecutive to all the other sentences which are concurrent with each other, in other words a total sentence of 18 months plus 6 making 2 years.  As to deportation, we conclude that Mr De Matos' continued presence would be detrimental.  However, in this case his family including his mother are all in the Island, he has lived in the Island for nearly 4 years, the only continuing connection with Madeira is his grandmother.  In the circumstances we think that his personal connections with the Island outweigh the issue of detriment, and we therefore do not make a recommendation for deportation; but he should understand that if he continues to offend he may end up being deported despite his connections with the Island.  If it is applicable we order forfeiture and destruction of the drugs.

Authorities

A.G.-v-Ozard (21^st September, 2001) Jersey Unreported; [2001/197].

A.G.-v- Romeril & Others (22^nd November, 2000) Jersey Unreported; [2000/232].

A.G.-v-How (23^rd November, 2001) Jersey Unreported; [2001/235].

A.G.-v-Mendes (25^th January, 2002) Jersey Unreported; [2002/25].

A.G.-v-Rios & Ors (11^th October, 1996) Jersey Unreported.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (Noter Up: 1996-97): pp25-33.

Ibid: (Noter Up: 1994-5) pp55, 64 - 69.