Jersey Unreported Judgments

[2003]JRC083A

ROYAL COURT

(Samedi Division)

 

16^th May 2003

 

 

The Attorney General

-v-

Michael Dos Santos Moreira

 

 

6 counts of:	Breaking and entering and larceny (Counts 1, 4, 6, 12, 14, 15);
2 counts of:	Obtaining goods and money by false pretences (Counts 2, 3);
3 counts of:	Illegal entry and larceny (Counts 5, 7, 10);
1 count of:	Attempting to obtain goods by false pretences (Count 8);
1 count of:	Larceny (Count 9);
1 count of:	Having offensive weapon in public place, contrary to Article 32 of the Firearms (Jersey) Law 2000 (Count 11);
1 count of:	Receiving stolen property (Count 13).

 

 

Age:     25.

 

Plea:    Guilty.

 

Details of Offence:

Defendant is a heroin addict.  Offences committed over a period of five months to pay for his addiction and drug debts.  Break-ins involved 7 residential and 2 commercial premises.  All premises unoccupied at time of break-in, although this was pure chance as Defendant did not know whether occupiers present or not.  Defendant could not remember committing some of the offences because of influence of drugs.  In relation to Count 10 the occupier returned to the premises whilst the Defendant was present.  When the occupier gave chase the Defendant produced a flick knife which he stated he always carried with him and would use if his life were threatened.  The Defendant stole cash and personal possessions from the premises broken into including in one case Count 6 valuable personal jewellery.  None of stolen items recovered.

 

Details of Mitigation:

This was an unusual case.  The Defendant had suffered a stroke and had also been involved in a serious car accident resulting in brain injury with the result that his memory is affected.  This combined with his drug addiction meant that Defendant genuinely could not remember committing some of the offences.  Court asked to give him chance and allow him to do Community Service.  Alternatively, if imprisonment inevitable should the Court impose a sentence less than that moved for by the Crown.

 

Previous Convictions:

Numerous, including two previous for illegal entry.

 

Conclusions:

Count 1:	3½ years' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	3 months' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.
Count 5:	3½ years' imprisonment, concurrent.
Count 6:	3½ years' imprisonment, concurrent.
Count 7:	3½ years' imprisonment, concurrent.
Count 8:	3 months' imprisonment, concurrent.
Count 9:	1 months' imprisonment, concurrent.
Count 10:	3½ years' imprisonment, concurrent.
Count 11:	3 months' imprisonment, concurrent.
Count 12:	3½ years' imprisonment, concurrent.
Count 13:	3 months' imprisonment, concurrent.
Count 14:	18 months' imprisonment, concurrent.
Count 15:	18 months' imprisonment, concurrent.
Total:	3½ years' imprisonment.

 

 

Sentence and Observations of Court:

Count 1:	3 years' imprisonment.
Count 2:	6 months' imprisonment, concurrent
Count 3:	6 months' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent.
Count 5:	3 years' imprisonment, concurrent.
Count 6:	3 years' imprisonment, concurrent.
Count 7:	3 years' imprisonment, concurrent.
Count 8:	6 months' imprisonment, concurrent.
Count 9:	3 months' imprisonment, concurrent.
Count 10:	3 years' imprisonment, concurrent.
Count 11:	3 months' imprisonment, consecutive.
Count 12:	3 years' imprisonment, concurrent.
Count 13:	6 months' imprisonment, concurrent.
Count 14:	18 months' imprisonment, concurrent.
Count 15:	18 months' imprisonment, concurrent.
Total:	3 years, 3 months' imprisonment.

 

Court states that A.G. -v- Da Silva is the clearest guidance for sentencing for offences of breaking and entering.  Sentence should start in the region of 2 years but other factors will increase sentence such as offences being a series of offences, and failure to recover property etc.  Defendant had not previously responded to Probation.  Court satisfied that imprisonment inevitable.  Court concluded that the correct overall level was 3 years' imprisonment.  However, the use of the flick knife (Count 11) merited a consecutive sentence of 3 months.

 

D.E. Le Cornu, Esq., Crown Advocate.

Advocate Mrs S. A. Pearmain for the Defendant.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        In order to fund his drug addiction this defendant over a period of some 5 months broke into seven residential properties during the day and two commercial properties.  Furthermore, on one of the occasions, when chased by the occupiers, he produced a flick knife in order to warn them off although, to be fair, it is clear that they were not overly frightened because they persuaded him to return to the premises from whence he had stolen and he was arrested there.

2.        The clearest guidance on sentencing levels for offences of this nature is to be found in the case of the Attorney General -v- da Silva (4^th December, 1997) Jersey Unreported.  That suggests that the Court starts by looking at something in the region of 2 years for breaking and entering unoccupied residential premises where there is a guilty plea.  That is the case here.  All of the residential properties were unoccupied at the time. But other matters may lead to a greater sentence, and one which certainly does so is where the offence is one of a series of similar offences.  It is also the case here that none of the property has been recovered other than a watch, which as Mrs Pearmain has correctly pointed out, the defendant put back voluntarily. 

3.        The defendant has a number of previous convictions.  He has not responded well to probation in the past, or to treatment by the Drug and Alcohol Service; and that Service does not feel he would be responsive to supervision or otherwise deal with his addiction.  Mrs Pearmain has urged that this is an unusual case.  Not only does she refer to the guilty plea and the residual youth but she points to the matters set out in paragraphs 4 and 5 of the Social Enquiry Report.

4.        It is clear that this defendant has serious health problems which are not of his own making, and that these have perhaps contributed to the development of his drug addiction.  Furthermore, his loss of memory following on from that is what leads him perhaps to miss appointments and appear to be uncooperative when, in truth, she says, he is not.  She submits that this is a turning point and the Court should take a chance and impose a non-custodial sentence.

5.        We have carefully considered all Mrs Pearmain has persuasively put forward, but we are quite satisfied that the offences in this case are such that, when taking into account the defendant's previous record, a custodial sentence is inevitable. 

6.        We have considered the level in the light of the case that we have discussed, and we conclude that the right overall level for the breaking and entering and other offences of dishonesty is one of 3 years.  However, we feel that the use of the flick knife is a quite separate matter; 3 years would have been the right sentence if no knife had been produced.  But carrying a weapon of this nature must lead to an additional sentence, and there will therefore be an additional sentence of 3 months. 

7.        In short the sentences are as follows: count 1, 3 years; count 2, 6 months - we feel that  3 months is too low for these various other dishonesty offence; - count 3, 6 months; count 4, 3 years; count 5, 3 years; count 6, 3 years; count 7, 3 years; count 8, 6 months; count 9, 3 months; count 10, 3 years; count 11, - that is the knife offence, - 3 months, consecutive; count 12, 3 years; count 13, 6 months; count 14, 18 months; count 15, 18 months, all of those to be concurrent except count 11 which is consecutive.  In other words the total is 3 years 3 months and we order the forfeiture of the knife.

Authorities

Whelan: .Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edition): pp.153-159.

AG -v- da Silva (4^th December, 1997) Jersey Unreported [1997/218].