Jersey Unreported Judgments

[2003]JRC105

ROYAL COURT

(Samedi Division)

 

27th June, 2003

 

 

The Attorney General

-v-

John Sebastian Fenn;

Brian James Botting;

Robert O'Connor;

Ricky Bree;

Jody Mulholland.

 

John Sebastian Fenn

First Indictment

1 count of:	Assault (count 1).
1 count of:	Breaking and entry and larceny (count 4).
1 count of:	Supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law, 1978: count 5: Temazepam.

 

Second Indictment

1 count of:	Fraud (count 3).
1 count of:	Breaking and entry and larceny (count 4).

Breach of a 45 hour Community Service Order made in Magistrate's Court, on guilty plea to 1 Count of driving whilst disqualified.

 

Age:     29.

 

Plea:    Guilty; breach of Community Service Order admitted.

 

Details of Offence:

In April, 2002, Fenn was told by his son's mother that her neighbour ("the Victim"), who was 62 years of age, had recently hit their son.  While the Victim was washing his car, Fenn went to speak to him and during an altercation grabbed the Victim with both his hands and pushed him to the ground, then punched him three times on his face, nose and mouth (count 1, Indictment 1).  Fenn then left the estate but voluntarily attended PHQ the following day.

During the evening of 28^th December, Fenn and Botting broke into Benest's Supermarket at Millbrook, having been overhead beforehand planning the offence.  Once inside they then went to the pharmacy and filled a black bin liner with approximately 7,400 tablets, valued at between £400.00 and £500.00.  They also stole over five hundred packets of cigarettes, five cases of champagne and seven cases of wine, with a combined value of £2,369.84.  (Count 4, Indictment 1).  The drugs taken included Classes A, B and C controlled substances.

Following the break-in Fenn supplied Murielle Coutanche with 30 diazepam tablets for £30.00 (count 5, Indictment 1).

During 2002, Fenn succeeded in securing financial assistance from St Helier Welfare Department to help him pay his rent.  He was provided with a deposit and the first week's rent, on the condition that each week thereafter he would produce his rent book, signed by his landlord, signifying receipt of the last payment.  During the month of December Fenn received the rent from the Department but failed to pay it over to his landlord, forging the landlord's signature in order to acquire each payment.  The total value of the prejudice suffered was £220.00 (Count 3, Indictment 2).

In the early hours of 6^th January, 2003, Fenn, Bree and Mulholland arrived at St Ouen's Pharmacy.  Fenn and Bree smashed a window, entered the pharmacy and started to go through boxes at the rear of the premises.  Police officers arrived shortly afterwards and caught Fenn and Bree inside the shop.  Fenn submitted to arrest and was found to have taken several boxes of diazepam tablets.  (Count 4, Indictment 2).

Fenn was also in breach of a Community Service Order resulting from a conviction in November, 2001, when he drove through a red light and was stopped by police officers.  On that occasion he was driving whilst disqualified and was ordered to complete 45 hours of Community Service.

 

Details of Mitigation:

Guilty plea; remorse; with respect to Count 4 on Indictment 1, the Crown accepted that the defendants had not revisited Benests that evening, which had been an aggravating factor incorporated in the conclusions.

 

Previous Convictions:

11 previous convictions comprising 34 separate offences, including various offences of dishonesty, 10 previous drug-related offences, a grave and criminal assault in 1994 and 2 previous convictions for illegal entry.

 

Conclusions: 

1st Indictment

count 1:	6 months' imprisonment.
count 4:	3 ½ years' imprisonment.
count 5:	6 months' imprisonment; concurrent.

 

2^nd Indictment

count 3:	3 months' imprisonment.
count 4:	2 years' imprisonment.

Breach of Community Service Order:  1 month's imprisonment, consecutive.

 

Sentence and Observations of Court:

1^st Indictment

count 1:	3 months' imprisonment.
count 4:	2 ½ years' imprisonment, concurrent.
count 5:	6 months' imprisonment; consecutive.

 

2^nd Indictment

count 3:	3 months' imprisonment, concurrent.
count 4:	2 years' imprisonment, concurrent.

Breach of Community Service Order: 2 weeks, consecutive.

TOTAL:  3 years 2 weeks' imprisonment.

 

 

Brian James Botting

First Indictment

2 counts of:	Breaking and entry and larceny (count 3, 4)
12 counts of:	Supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law, 1978: count 6: diconal tablets count 7: morphine count 8: pethidine count 9: butobarbitone count 10: quinalbarbitone count 11: diazepam count 12: temazepam count 13: nitrazepam count 14: flurazepam count 15: diconal tablets count 16: pethidine count 17: diazepam

[The defendant pleaded not guilty to count 2 of this indictment, which plea was accepted by the Crown].

 

Age:     24.

 

Plea:  Guilty

 

Details of Offence:

On the night of the 14^th/15^th November, 2002, Botting broke into Chandis Limited (a pharmaceutical wholesaler) and stole non-drug related items with a total value of £64.00 (count 3, Indictment 1).  At the time of the break-in he was under the influence of narcotics.

During the evening of 28^th December, Fenn and Botting broke into Benest's Supermarket at Millbrook, having been overheard beforehand planning the offence.  Once inside they then went to the pharmacy and filled a black bin liner with approximately 7,400 tablets, valued at between £400.00 and £500.00.  They also stole over five hundred packets of cigarettes, five cases of champagne and seven cases of wine, with a combined value of £2,369.84.  (Count 4, Indictment 1).  The drugs taken included Classes A, B and C controlled substances.

Following the break-in at Benests, Botting supplied O'Connor with the following tablets:

 

Count	Drug	Class	Quantity
6	Diconal	A	10
7	Morphine	A	10
8	Pethidine	A	8
9	Butobarbitone	B	27
10	Quinalbarbitone	B	102
11	Diazepam	C	120
12	Temazepam	C	92
13	Nitrazepam	C	155
14	Flurazepam	C	72

 

Details of Mitigation:

Guilty plea; troubled background; with respect to Count 4 on Indictment 1, the Crown accepted that the defendants had not revisited Benests that evening, which had been an aggravating factor incorporated in the conclusions.

 

Previous Convictions:

11 previous convictions comprising 42 separate offences.  Numerous offences of dishonesty, 10 drug offences, including one for possessing heroin with intent to supply.

 

Conclusions: 

count 3:	18 months' imprisonment
count 4:	3 ½  years' imprisonment
count 6:	3 ½ years'
count 7:	3 ½ years'
count 8:	3 ½ years'
count 9:	12 months' imprisonment
count 10:	12 months' imprisonment
count 11:	12 months' imprisonment
count 12:	12 months' imprisonment
count 13	12 months' imprisonment
count 14:	12 months' imprisonment
count 15:	3 ½  years imprisonment
count 16:	3 ½  years imprisonment
count 17:	12 months' imprisonment

All concurrent.

 

Sentence and Observations of Court:

Count 3:	2 years' imprisonment
count 4:	2½  years' imprisonment
count 6:	3 years'
count 7:	3 years'
count 8:	3 years'
count 9:	12 months' imprisonment
count 10:	12 months' imprisonment
count 11:	9 months' imprisonment
count 12:	9 months' imprisonment
count 13	9 months' imprisonment
count 14:	9 months' imprisonment
count 15:	3 years imprisonment
count 16:	3 years imprisonment
count 17:	6 months' imprisonment

All concurrent.

Total: 3 years' imprisonment.

 

 

Robert O'Connor

First Indictment

1 count of:	Receiving, hiding or withholding stolen property (count 18)
2 counts of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978: count 19: diazepam count 20: diazepam
9 counts of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 21: diconal tablets count 22: pethidine count 23: morphine count 24: quinalbarbitone count 25: butobarbitone count 26: diazepam count 27: temazepam count 28: nitrazepam count 29: flurazepam

 

Age:     26

 

Plea:    Guilty.

 

Details of Offence:

O'Connor admitted receiving a further 52 stolen amitriptyline tablets (unclassified) from Botting (Count 18, Indictment 1).

On New Year's eve O'Connor had a party in his bedroom at his house with Botting, Botting's brother and two young girls, aged 15 and 16 years old (one of whom was O'Connor's girlfriend).  It is alleged that all those present consumed illicit drugs.  O'Connor admitted supplying each of the girls with one or two diazepam tablets (Counts 19 and 20 respectively).  Both girls became extremely ill and were admitted to hospital shortly afterwards.

O'Connor, was also found to be in possession of various drugs supplied to him by Botting, together with a further large amount of tablets, as set out below, that he had "stockpiled" to fuel his own addiction:-

 

Count	Drug	Class	Quantity
21	Diconal	A	10
22	Pethidine	A	18
23	Morphine	A	10
24	Quinalbarbitone	B	102
25	Butobarbitone	B	27
26	Diazepam	C	649
27	Temazepam	C	266
28	Nitrazepam	C	149
29	Flurazepam	C	110

 

Details of Mitigation:

Guilty plea; no intention to sell drugs; good work record; only one previous drug offence; had detoxified while in custody.

 

Previous Convictions:

5 previous convictions involving approximately 20 offences, many of which are motoring offences.  One previous drug related offence for possession of ecstasy.

 

Conclusions: 

count 18:	3 months' imprisonment
count 19:	6 months' imprisonment
count 20:	6 months' imprisonment
count 21:	12 months' imprisonment
count 23:	12 months' imprisonment
count 24:	12 months' imprisonment
count 25:	12 months' imprisonment
count 26:	12 months' imprisonment
count 27:	12 months' imprisonment
count 28:	12 months' imprisonment
count 29:	12 months' imprisonment

All concurrent.

 

Sentence and Observations of Court:

180 hours Community Service.

12 months' Probation Order.

 

 

Ricky Bree

Second Indictment

1 count of:	Driving without licence, contrary to Article 3(1) of the Road Traffic (Jersey) Law 1956 (count 1);
1 count of:	Using a motor vehicle uninsured, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law 1948 (count 2);
1 count of:	Resisting arrest (count 6).

[Count 4 of the Indictment was withdrawn against this defendant and the Crown accepted a not guilty plea to count 5.]

 

Third Indictment

1 count of:

Breaking and entering with intent to commit crime (count 1).

 

Age:     23.

 

Plea:               

Guilty.

 

Details of Offence:

During November, 2002, Bree was seen by a police officer driving erratically through the streets of St. Helier.  He was stopped and required to produce his driving licence, insurance and vehicle registration documents within seven days.  It was later discovered that he did not possess a licence or insurance (Counts1 and 2, Indictment 2).

In the early hours of 6^th January, 2003, Bree had driven with Fenn and Mulholland to St. Ouen's Pharmacy.  Fenn and Bree smashed a window, and then entered the pharmacy and started to go through boxes at the rear of the premises.  Police officers arrived shortly afterwards and came across Fenn and Bree, both of whom had boxes of tablets in their hands.  (Count 1, Indictment 3).  Bree dropped the boxes and ran out of the pharmacy, struggling with officers while doing so.  After a short chase, he was eventually caught outside and arrested.  (Count 6, Indictment 2).  The break-in was committed while Bree was on bail.     

 

Details of Mitigation:

Guilty plea; had not planned break-in; had taken steps to detoxify himself while in prison and turn his life around.

 

Previous Convictions:

Lengthy record of 8 previous convictions, comprising 28 separate offences over an 8 year period.  Numerous previous convictions for dishonesty and previous convictions for driving without a licence, driving without insurance, theft and resisting arrest.

 

Conclusions: 

2^nd Indictment

count 1:	£300 or 2 months' imprisonment in default
count 2:	6 months' imprisonment
count 6:	3 months' imprisonment, concurrent.

 

3^rd Indictment

count 1:

18 months' concurrent

 

 

Sentence and Observations of Court:

Conclusions granted.

 

 

Jody Mullholand

2^nd Indictment

1 count of:

Aiding and assisting or participating in breaking and entering  and larceny (count 4A)

 

Age:     23.

 

Plea:               

Guilty.

 

Details of Offence:

During the break-in at St.Ouen's Pharmacy on 6^th January, 2003, Mulholland had held a blanket underneath the window broken by Fenn and Bree in order to catch the broken glass and stop any noise waking the neighbours.  He had only been involved to this limited extent and did not enter the premises.  He was arrested outside when the Police arrived. (Count 4A).

 

Details of Mitigation:

Guilty plea; no convictions since 1999; minimal participation; had taken steps to turn his life around.

 

Previous Convictions:

A series of offences including breaking and entering and larceny; three drug offences and various motoring offences.

 

Conclusions: 

2^nd Indictment

count 4A:

12 months' imprisonment

 

Sentence and Observations of Court:

2^nd Indictment

count 4A:

180 hours Community Service; 12 months Probation Order

 

 

Advocate C.M.M. Yates, Esq., Crown Advocate;

Advocate J. Grace for J.S. Fenn;

Advocate F.B. Robertson for B.J. Botting;

Advocate J.Bell, for R.O'Connor;

Advocate D. Cadin, for R. Brée;

Advocate S.E. Fitz for J. Mulholland.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        Before we pass sentence we want to make some general observations.   Where there are a series of offences the Court has to consider whether to make individual sentences consecutive or concurrent.   The important thing in either event is to consider the total sentence.   If sentences are made concurrent, as has in general been moved for by the Crown in this case, the Court must ensure that as a result that the overall sentence is not too lenient.   To give a hypothetical example if there are a series of burglaries for which the Court thought the correct sentence was 18 months', and if there are also a series of drug offences for which the Court thought the right sentence was 18 months', if they are simply made concurrent so that a total of 18 months' is passed there has been no extra punishment for the second series of offences.   In other words the sentences are the same as if only the burglaries had been committed.   The remedy in that situation is to increase the sentence for either the burglaries or the drug offences to what the Court considers to be the correct aggregate sentence which might be 2 years.   Conversely, if consecutive sentences are passed the danger is of the overall sentence being too long.  In that case individual sentences have to be dropped below what they might individually merit in order that the aggregate is the correct amount.   We have approached our task in this case by considering what we believe to be the correct overall sentence and we have then made adjustments by way of making sentences concurrent or consecutive, as the case may be, in order to reach sensible individual sentences as best we can, having regard to our primary decision which is the overall level of sentence.   We have also made individual adjustments to some of the sentences moved for by the Crown which we have felt have not always been wholly internally consistent.

2.        Fenn, dealing with you first, would you kindly stand up.  You are before the Court for an assault in April, 2002; breaking into Benest's and stealing a substantial quantity of prescription drugs and other items; breaking into St. Ouen's Pharmacy and stealing drugs; supplying 30 tablets of a class C drug to a friend for £30; and defrauding the Parish of St. Helier by falsely claiming benefit for the payment of rent.   You are also in breach of a Community Service Order of 45 hours because you have not carried this out.   You have a poor record.   In mitigation you have pleaded guilty.   We have considered carefully the contents of the background report.   We accept that in relation to the Benest's burglary you did not revisit it and therefore at least one of the aggravating features mentioned by the Crown is not present.   As to the burglaries, and this applies generally, Gaffney (5^th June, 1995) Jersey Unreported; [1995/101] suggests a level of 18 months' but this can be increased or reduced according to the circumstances.   In this case there are aggravating circumstances.   First of all there was more than one break-in.   Secondly, you have a poor record, and thirdly, the break-in was to obtain drugs which makes it more serious.   In all we consider that the right sentence for the Benest's break-in is 2 ½ years'.   As to the Community Service the Crown has suggested that it should be one month consecutive.  The Magistrate's Court when imposing sentence said that it had in mind 2 weeks'.  In our judgment it is not right for a Court in our position to re-visit a previous sentence.   This is not an appeal and therefore we must stick with the 2 weeks' which you would have got at the Magistrate's Court. 

3.        So, turning to the individual sentences.  On the first indictment; count 1, 3 months'; count 4, 2 ½ years'; count 5, 6 months'; count 3 of the second indictment, 3 months'; count 4, 2 years'.   All of those to be concurrent save for count 5 on the first indictment, that is the supplying of the tablets which is to be consecutive.   For the breach of Community Service we imposed 2 weeks' imprisonment consecutive.  The total therefore is 3 years' imprisonment plus 2 weeks'.

4.        We turn now to Botting.   Botting would you stand up, please.   You broke into Chandis Stores and stole goods.  You then with Fenn broke into Benest's, as we have heard.   Subsequently, you supplied quantities of class A, B and C tablets to O'Connor and Moreira.  We do however accept that this was not a commercial supply from which you received the proceeds and we have heard what your counsel has said about that.   Your problem, as with so many of your co-defendants, is your drug addiction.   Nevertheless, as we have said earlier, the Court takes a serious view of burglaries to obtain drugs and also of the subsequent supply of those drugs, whether commercially or not.  In mitigation you too have pleaded guilty.   We have considered carefully the Social Enquiry Report with its detailed facts about your background.  We have looked at the suggestion of adjourning this matter for consideration of a residential course in England but we think that there is no alternative to prison in your case.   Turning to the individual counts our sentence therefore is as follows: on the first indictment, count 3: 2 years'; count 4: 2 ½ years'; counts 6, 7 and 8: 3 years' on each count; counts 9 and 10: 12 months' on each count; counts 11, 12, 13, and 14: 9 months'; counts 15 and 16: 3 years'; count 17: 6 months'.  All of those sentences to be concurrent, making a total of 3 years.

5.        Turning to O'Connor.   You received 52 tablets which you knew to have been stolen by Botting.   You had possession of a substantial number of tablets comprising a few class A, a few Class B and a substantial number of class C.   In addition you supplied one or two class C tablets to each of Miss X, your girlfriend then 16, and her friend Y who was only 15.  This was a thoroughly irresponsible act.   As we know they were subsequently admitted to hospital very seriously ill.   That may or may not have been entirely attributable to what you did but nevertheless there is always a risk of such a thing happening when supplying drugs in this way.   However, in your case there is substantial mitigation.  Not only is there the guilty plea but we have listened carefully to all that your advocate has said and to the contents of the Social Enquiry Report and the Drug and Alcohol Report.   We are willing to give you a chance and therefore we do not think it is necessary to impose a custodial sentence.   The sentence of the Court is one of Community Service: 180 hours.   In addition we impose a Probation Order of 12 months' with a treatment Order with the Drug and Alcohol Service with the conditions that they recommend, namely that you attend the Alcohol and Drug Service for 6 months; that you remain abstinent from all illegal and none prescribed opiates, confirmed by routine and random urine analysis which may be supervised, and that you comply with the treatment goals as agreed by the Drug and Alcohol Service.   The Court is giving you the opportunity, Mr. O'Connor.  Do not waste it because as you know, if you breach this by re-offending or if you do not do what you are told by the Probation Department or if you do not do the Community Service you will be brought back here and you will be sent to prison.   We state that the overall prison sentence that we would have had in mind would have been one of 12 months' as moved for by the Crown.

6.        Brée, you have pleaded guilty to the breaking and entry at St. Ouen's and to resisting arrest at the time.   On a separate occasion you drove without a licence or insurance.   You too have a poor record.   We have listened carefully to what Mr. Cadin on your behalf put forward: your guilty plea, and that, as with the others, this was a spur of the moment offence.   You accept that a prison sentence is inevitable and we think you are right to do so.   We are extremely pleased to hear of what you are doing in prison: about the swab tests and the efforts you are making to try and get rid of your drug problem.   We support you in that and strongly urge you to keep it up because it will have advantages for you if you persevere.   We have considered Mr. Cadin's submissions but we do not think we can drop below 18 months' in aggregate.   The sentence therefore is: on count 1, the second indictment, £300 or 2 months' in default; on count 2, 6 months' imprisonment; on count 6, 3 months' imprisonment; on the third indictment, count 1, 18 months' imprisonment.   All of those to be concurrent making a total of 18 months'.

7.        Finally, Mulholland.   You assisted in the break-in at St. Ouen's Pharmacy.   As with the others, we accept this was done on the spur of the moment.   Your rôle was, we accept, confined to putting the blanket on the ground to deaden the sound of falling glass from the window.   You did not otherwise become involved but nevertheless you played your part.   You too have a previous record but you have no offences since those for which you were sent to prison in September, 1999 and we accept that you have made great efforts to turn your life around and that this is an unfortunate falling back into your old ways.   We have listened carefully to what your advocate has said.   We have also taken into account the Background Report.   In all the circumstances we think that in your case too we can proceed by way of a non-custodial sentence.   In your case also the sentence will therefore be Community Service of 180 hours and a Probation Order of 12 months'.   We state that the sentence we would have had in mind would have been 12 months' imprisonment.   What I have just said to O'Connor goes for you.   If you waste this chance by re-offending or by not performing your Community Service or by not complying fully with all the directions you are given by your Probation Officer you will be brought back here and there will be only one answer, you will then go to prison.  So this is a chance for you.

8.        We order the forfeiture and destruction of the drugs.

Authorities

A.G. -v- Gaffney (5^th June, 1995) Jersey Unreported; [1995/101].

Whelan: "Aspects of Sentencing in the Superior Courts of Jersey" (2^nd Ed'n): breaking and entering and larceny: pp.153-9; p284.

AG -v- Higham (17^th March 2000) Jersey Unreported; [2000/48]

AG -v- Rice (2^nd June 1999) Jersey Unreported; [1999/96]

AG -v- Lopes (16^th March 2001) Jersey Unreported; [2001/63]

AG -v- Corvel (2^nd March 2001) Jersey Unreported; [2001/55]

AG -v- Halsall (9^th December, 1996) Jersey Unreported.

Larcher (1979) 1 Cr. App. R. (s) 137.