Jersey Unreported Judgments

 [2004]JRC113

ROYAL COURT

(Samedi Division)

 

25^th June, 2004

 

 

The Attorney General

-v-

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).

 

[The counts on the first indictment and counts 1 - 4 on the second indictment relate to co-defendants who were sentenced by the Royal Court on 28^th May 2004:  See [2004]JRC093].

 

Age:     47

 

Plea:    Guilty

 

Details of Offence:

Accused broke into Spearmel Stores with others whom he refused to identify.  During break-in cigarettes, alcohol, phone cards and cash worth a total of £5385.00 were stolen. 

Swinburne admitted trying to break into a safe on the premises.  When later arrested he was carrying a personal dose of heroin.  Reports suggested very high risk of re-offending.

Sentencing delayed so that health assessment could be undertaken in Southampton.

 

Details of Mitigation:

Immediate guilty plea; wrote own indictment to break-in; co-operation, difficult background with long term substance addiction; liver and lung disease - transplant required in 3 to 5 years.

 

Previous Convictions:

Bad record, including 10 previous convictions for break and entry.

 

Second Indictment

 

Count 5:	18 months' imprisonment.
Count 6:	6 months' imprisonment, consecutive.

 

Sentence and Observations of Court:

 

Count 5:	15 months' imprisonment.
Count 6:	3 months' imprisonment, concurrent.

 

Prison unavoidable, but Court felt able to reduce conclusions slightly.

 

 

 

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

Advocate R. Juste for the Defendant.

 

 

 

JUDGMENT

 

THE COMMISSIONER:

1.        The defendant is a heroin addict.  Because it was discovered that he had severe medical problems, he was not sentenced with his two co-accused on 28^th May 2004.  The discovery that he might need a liver transplant within a relatively short time has come, according to Miss Juste, as a shock to him and that is understandable.  There has been delay, not only because of the medical prognosis but also because the defendant instructed his new lawyers to attend a meeting with the police where he, quite literally, wrote his own indictment, and that meeting was also delayed because of the Christmas period. 

2.        The learned Crown Advocate has explained however, that whilst the break-in at the grocery store might have been unplanned, it became sophisticated once Swinburne was inside.  We must read the conclusions of the case of Bernard [1997] 1 Cr. App. R. (S) 135, a case passed to us by Miss Juste, which having carefully analysed all the relevant cases says this:  (And we would point out that, of course, Swinburne is not HIV positive on the facts of that case).  What the Court of Appeal said is this:

"It is apparent as we have said that these decisions are not easily reconcilable.  However we take the view that the following principles emerged from them.

(1)  A medical condition which may at some unidentified future date effect either life expectancy or the prison authorities' ability to treat a prisoner satisfactorily may call into operation the Home Secretary's power of release by reference to the Royal prerogative of mercy or otherwise but is not a reason for this Court to interfere with an otherwise appropriate sentence;

(2)  the fact that an offender is HIV positive or has a reduced life expectancy is not generally a reason which should affect sentence;

(3)  a serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate;

(4)  an offender's serious medical condition may enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate".

3.        Now, Swinburne has served the equivalent of 10 months and 7 days.  We do not, despite Miss Juste's most carefully reasoned argument, consider that a suspended sentence is appropriate in this case, because that option in our view should be used for first offenders, those not liable to benefit, for whatever reason, from probation or community service orders and those not likely to re-offend.  Swinburne has been assessed as being at very high risk of re-offending and he is of course not a first offender.

4.        We have most carefully considered all the points most tellingly made by Miss Juste but we do feel that a prison sentence is unavoidable.  The amount of drugs that was seized in our view however does not warrant a consecutive sentence and we therefore sentence you on that count to 3 months concurrent to a sentence of 15 months. 

5.        We would anticipate that the time you have already served will be deducted from your sentence although that is not in our hands but we recommend that course of action because this is an exceptional case.  No doubt assistance will be given by all those concerned in your medical treatment and we hope that this will continue both now and once you are released.

6.        And we order, of course, the forfeiture and destruction of the drugs.

 

Authorities

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

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2nd Ed'n): paras 376, 380, 402, 408.

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

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

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

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

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

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

Bernard [1997] 1Cr. App. R. (S) 135.