Jersey Unreported Judgments

[2006]JRC134

ROYAL COURT

(Samedi Division)

27^th September 2006

The Attorney General

-v-

Shane Luke O'Shea

Sentencing by the Inferior Number of the Royal Court following guilty pleas to:

Age:  22.

Plea: Guilty to Counts 1, 2 and 5.  Not guilty to Counts 3 and 4.

Details of Offence:

O'Shea had been released from Prison on the 30^th December, 2005, after serving a 15 month sentence (see Judgment 2005, JRC087).  On the 9^th January, 2006, at approximately 0920 hours he approached a male not known to him and engaged him in conversation.  The two males walked a short distance when O'Shea asked to borrow the male's mobile phone.  Albeit somewhat reluctantly, the male gave O'Shea his mobile phone to use and a short while later, whilst using the phone, O'Shea ran off, stealing the phone (Count 2).  Later that morning a woman left her home in Brighton Road and noticed a male urinating against her fence.  She returned to the house and told him to stop.  The male stopped and apologised.  The woman telephoned the Police and gave the Police a description and the direction in which the male was walking.  Police Officers attended and based upon the description identified the male who, upon seeing the Police, ran away.  The male was, however, apprehended.  It was ascertained that it was the now accused O'Shea (Count 1).

Whilst in Police custody it was noted that O'Shea matched the description provided by the victim of Count 2.  A search of the property, seized by the Police at the time of his arrest, revealed the mobile telephone stolen from the victim earlier that day.  The telephone matched the description and IMEI number of the mobile telephone stolen. 

O'Shea was interviewed about these two offences and admitted urinating and apologised for the offence.  He answered "no comment" to the majority of the material questions put to him in relation to the larceny of the mobile phone but claimed that he had been given it as a Christmas present.

O'Shea was charged and presented to the Magistrate's Court where he entered a guilty plea to the offence of urinating and reserved his plea to the offence of larceny.  He was granted bail on certain conditions. 

On 13^th January, 2006, O'Shea approached two 17 year old males, who were not known to him, in Howard Davis Park and engaged them in conversation.  During this conversation he extracted certain personal details from one of the males.  He offered to sell drugs, and in particular cannabis, to the young men but they refused his offer.  He then told one of the males that he wished to speak with his friend on his own and when the individual declined, O'Shea threatened to stab him with a knife.  The friend, therefore, left leaving the victim of Count 5 in O'Shea's presence.  At O'Shea's suggestion/insistence the two men walked into St Helier and the victim was told to take out money from his bank account and give the same to O'Shea.  The victim withdrew a total of £170 from his bank account and handed over an additional £30 in cash which he had with him.  After handing over the cash the victim requested that he be permitted to leave O'Shea, but O'Shea insisted that that the male should stay with him and produced a knife which had a 4" blade.  The victim was very frightened.  Afraid for his safety the victim remained with O'Shea and after a while the victim was advised to wait round a corner as O'Shea was to meet a friend.  After a short while the victim realised that O'Shea had left the immediate area.  The victim reported the matter to the Police.  However, the day after the incident the victim received a phone call from O'Shea enquiring as to what the victim had said as the Police had been round to the homes of his ex-girlfriend and his mother.  This conversation was partly monitored by the victim's mother.  

O'Shea was recognised as the accused in relation to Count 5 from CCTV footage and enquiries were made by the Police to trace O'Shea.  However, approximately 3 days after the incident, O'Shea voluntarily attended Police Headquarters where he was arrested.  He was interviewed under caution but predominantly answered "no comment" to all material questions, but stated that as he was under the influence of non-prescription drugs at the time he could not remember his actions.  Despite searches at various addresses the knife and clothing worn by O'Shea, as revealed by the CCTV, were not located (Count 5). 

The Crown contended that the most serious offence, being Count 5, was not susceptible to a "starting point" approach.  The work of Crown Advocate Whelan and in particular the case of AG v Sangster suggested a functional starting bracket of between 21 months and 3 years on a guilty plea for offences of demanding money with menaces.  The Crown viewed the offence as particularly unpleasant and as a serious example of the offence of demanding money with menaces.  O'Shea had befriended, or gained the confidence of, the victim and then used threats of violence to separate the two friends and thereafter demand money from the victim.  The offence of urinating was a disgusting offence as it was committed in broad daylight in the middle of the morning, and the larceny of the mobile telephone was a mean offence which was in fact the second offence of this nature committed by O'Shea in exactly the same circumstances (see Judgment 2005, JRC087)

Details of Mitigation:

The Crown contended O'Shea had the benefit of his guilty pleas.  He had been co-operative with the Police, albeit he had apologised for the offence of urinating.  The explanations offered by him to the Probation Officer for Counts 2 and 5 were at odds with the evidence.  However, through Defence Counsel it was accepted he was to be sentenced on the basis of the Crown's factual basis.  He did not have the benefit of good character, having an atrocious criminal record.  Character references were, however, provided.  The Crown gave due weight to the matters contained within the reports. 

The Defence submitted that Counts 2 and 5 had been opportunistic offences committed so as to fund O'Shea's heroin habit.  It was suggested that both offences were at the lower level of offending and small sums of money involved in terms of the value of the phone and the cash stolen.  The Defence agreed to the approach to sentencing taken by the Crown.  In terms of mitigation, the Defence put forward the following matters:

1.     Guilty plea and in particular it was contended that the guilty plea to Count 5 was of significant value as it avoided the need for a trial.

2.     Aged 22 years and therefore deserving of residual credit.

3.     His conduct in Prison.  He was on the Enhanced Wing which was drug free. He had completed a Drug Awareness Course and was working as a carpenter in Prison.  He was also attending Church on a regular basis.  He was making plans for his future intending to go to the United Kingdom to get an opiate blocker inserted and his stated intention was to join the Army as he thought he would benefit from the discipline.

4.     Matters contained within the Social Enquiry Report which noted an improvement in his attitude and a suggestion that he was at last beginning to mature.

5.     Letters/Testimonials placed before the Court.  This showed a different side to O'Shea.

Defence Counsel requested the Court to be as lenient as possible in the circumstances.

Previous Convictions:

O'Shea had 11 previous convictions for a total of 23 offences including offences of violence, fraud, dishonesty, public order and drug offences.

Conclusions:

Counts 3 and 4 to be kept on file.

Total 2½ years' imprisonment.

Sentence and Observations of Court:

The Court noted that the Social Enquiry Report stated that O'Shea's life had been blighted by his heroin addiction and that O'Shea knew this.  He had abilities and if he could turn his life around then the Court would not see him again.  If he did not turn his life around then the Court had no doubt that he would be back before them.  The Court noted the worrying tendency of O'Shea to pick on younger people to obtain money so as to fund his drug habit.  These offences had been committed within 2 weeks of his release from Prison.  There was no viable alternative to a custodial sentence which had been acknowledged by O'Shea.  The Court had taken into account everything that had been said by Defence Counsel and in particular his guilty plea for which he had been given full credit for.  The Court had noted the efforts that he was making to conquer his addiction and had also read his letter and hoped that its contents were true.  The Court granted the Crown's conclusions.

J.C. Gollop, Esq., Crown Advocate.

Advocate R. Morley-Kirk for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        As the background report from the Probation Officer says, your life has been blighted by your heroin addiction.  You have the ability to do well, and you could turn your life around if you conquer your addiction.

2.        In the meantime you have shown a very worrying tendency to pick on and intimidate younger people in order to obtain money from them, no doubt to fund your heroin habit.  This latest offending took place within two weeks of your release from prison.  So for these offences, with your record, there is no alternative but prison.

3.        We have taken into account in mitigation what your advocate has said very eloquently on your behalf.  You are still a young man, you pleaded guilty and we give you full credit for the guilty plea because the count was only added at the last moment.  We also note and support your efforts to conquer your addiction whilst you are in prison.  We have read carefully the letter from you, and from your family and the other people who have written and we hope that you mean what you say, namely that you really are determined to try and overcome this heroin dependency and to turn your life around.  If you do the future will be good, if not we will be seeing you again.

4.        In all the circumstances we grant the Court's conclusions.  On Count 1, £150 fine or two weeks' in default.  Count 2, 6 months' imprisonment, to be concurrent with the default sentence.  Count 5, 2 years' imprisonment consecutive, making 2½ years' imprisonment in all.

No Authorities