Jersey Unreported Judgments

[2004]JRC093

ROYAL COURT

(Samedi Division)

 

28^th May 2004

 

 

The Attorney General

-v-

Kevin John Falle;

Dean Perez

William Stuart Swinburne

 

 

Kevin John Falle

 

First Indictment

 

1 count of:	Larceny (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978. Count 2: cannabis resin.

 

Second Indictment

 

1 count of:	Larceny by finding (Count 1).
2 counts of:	Receiving, hiding or withholding stolen property (Counts 2, 4)
1 count of :	Larceny (Count 3).

 

Breach of 1 year Probation Order made in Magistrate's Court on 1^st August, 2003, on a Guilty plea to 1 count of larceny (Count 1), 1 count of obstructing police (Count 2) and 1 count of urinating (Count 3).

Age:     30.

 

Plea:    Guilty; Breach of Probation Order admitted.

 

Details of Offence:

Larceny of 4 telephones.

Larceny of £480 cash (from mother's account)

Receiving stolen alcohol (£60)

Receiving stolen cigarettes (£1,400)

Personal quantity of cannabis

 

Details of Mitigation:

Some remorse; apparent wish to attempt reform.

 

Previous Convictions:

Numerous for drugs and dishonesty.

 

Conclusions:

First Indictment.

 

Count 1:	3 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent, but consecutive to sentence on Second Indictment.

 

Second Indictment.

 

Count 1:	3 months' imprisonment.
Count 2:	6 months' imprisonment.
Count 3:	12 months' imprisonment.
Count 4:	18 months' imprisonment , concurrent.

 

Breach of Probation Order: Count 1: 3 months' imprisonment; Count 2: 1 month's imprisonment; Count 3: 1 months' imprisonment, concurrent with each other, but consecutive to sentences moved for on present indictment.

TOTAL: 24 months' imprisonment.

 

Sentence and Observations of Court:

First Indictment.

 

Count 1:	3 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent but consecutive to sentence on Second Indictment.

 

Second Indictment.

 

Count 1:	3 months' imprisonment.
Count 2:	6 months' imprisonment.
Count 3:	12 months' imprisonment.
Count 4:	15 months' imprisonment, concurrent.

 

Breach of Probation Order: Count 1: 3 months' imprisonment; Count 2: 1 month's imprisonment; Count 3: 1 month's imprisonment, concurrent.

TOTAL: 21 months' imprisonment.

 

Dean Perez

 

Second Indictment

 

1 count of:

Receiving, hiding or withholding stolen property (Counts  4)

 

[On 26^th March, 2004, the Crown accepted Not Guilty plea to Count 2].

Age:     39.

 

Plea:    Guilty.

 

Details of Offence:

Alcohol valued at £60

Cigarettes valued at £1,400

 

Details of Mitigation:

Gap in record; creditable attempts to reform; plea guilty.

 

Previous Convictions:

Numerous for dishonesty; some drugs offending.

 

Conclusions:

Second Indictment

 

Count 4:

18 months' imprisonment.

 

Sentence and Observations of Court:

Second Indictment

 

Count 4:

210 hours Community Service Order; 1 year Probation Order.

 

 

William Stuart Swinburne

 

Second Indictment

 

1 count of:	Breaking and entering and larceny (Count 5).
1 count of:	Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: Count 6: diamorphine.

 

Sentencing adjourned.

 

 

 

C.E. Whelan, Esq., Crown Advocate.

Advocate C.M. Fogarty for K.J. Falle.

Advocate J. Grace for D. Perez.

Advocate R. Juste for W.S. Swinburne

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        Falle, you have pleaded guilty to receiving alcohol, and about 7,000 cigarettes; you stole cash to amounting to £480 by using your mother's cash card; you stole some telephones by finding them; you shoplifted a video recorder; and you were in possession of some cannabis.  All of these offences, no doubt, were committed to feed your heroin addiction.

2.        You have an appalling record for one of your age with many offences of dishonesty and you are also on breach of a probation order on this occasion which was imposed in August last year. 

3.        There is, in our judgment, no alternative to prison in your case.  In mitigation we take into account your guilty plea entered at any early stage.  We have carefully considered the contents of the Social Enquiry Report and the Drug and Alcohol Report and we have noted the letters from your family.

4.        We have had regard to the cases of R -v- Webbe & Ors [2002] 1 Cr. App. R(S) 82 and Wylie -v- A.G. (17^th January, 2002) Jersey Unreported [2002/13] to which we have been referred.  We are going to grant the conclusions.  We think they take account of all matters save in one respect: we think that for the offence of receiving the correct sentence would be one of 15 months.

5.        The sentence, therefore, is as follows: On the first indictment Count 1: 3 months' imprisonment; Count 2: 1 month's imprisonment, those to be concurrent with each other but consecutive to the sentences passed on second indictment.  On the second indictment, Count 1: 3 months' imprisonment; Count 2: 6 months' imprisonment; count 3: 12 months' imprisonment; Count 4: 15 months' imprisonment, all of these to be concurrent. 

6.        Turning to the breach of probation, for the offence of larceny (Count 1): 3 months' imprisonment, for obstructing and refusing to obey a police officer (Count 2): 1 month's imprisonment; for urinating, (Count 3): 1 month's imprisonment all of those concurrent but consecutive to the other sentences making a total of 21 months' imprisonment.

7.        Perez, you have pleaded guilty to 1 count of receiving the cigarettes (Count 4 of the second indictment) along with Falle.  You too have a long standing heroin addiction, and a previous record.  In your case, you appear to have made considerable efforts to turn your life around; in particular we note that there have been no offences of dishonesty since 1997, and only one offence after that in 1999 for driving without a licence and insurance.

8.        In mitigation we take into account your guilty plea, the break in your offending to which we have referred and your attempts recently to overcome your heroin addiction.  We have considered carefully the recommendation in the Social Enquiry Report and we think in your case we should recognise the efforts you have made recently, in the hope that this is a temporary lapse, by imposing a non-custodial sentence.

9.        We are going to impose a Probation Order of 12 months' and during that time, although we are not making it a condition, but as set out in the Report you will be expected to attend the SMART course and any other courses that the Probation Office direct you to do, and indeed during your Probation Order you will have to do exactly what you are told by the Probation Officer.

10.      We also think that in view of the seriousness of the offence you must serve some community service.  We think the correct sentence would have been 15 months' imprisonment and we are, therefore, going to impose 210 hours' community service.  If you do not do exactly what you are told by the Probation Officer, if you breach any of the conditions which you will be shown by the Probation Officer before you leave the Court, or if you do not do the community service you will be brought back and you will go to prison.

11.      Forfeiture and destruction of the drugs is ordered.

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): paras 376, 380, 402, 408.

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

R -v- Webbe & Ors [2002] 1 Cr. App. R (S) 82.

A.G. -v- Munks (8^th October, 1999) Jersey Unreported; [1999/168A].

A.G. -v- Mallon & Ors (2^nd August, 1996) Jersey Unreported; [1996/143].

A.G. -v- de la Haye & Anor (15^th December, 1995) Jersey Unreported; [1995/248].

A.G. -v- Buesnel [1996]JLR265.