Jersey Unreported Judgments

[2008]JRC066

ROYAL COURT

(Samedi Division)

25^th April 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Breton and Morgan.

The Attorney General

-v-

Claudio Jorge Alves Fernandes

Dinarte Tiago Mendes

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

Claudio Jorge Alves Fernandes

2 counts of:	Larceny.  (Counts 1 and 9).
1 count of:	Breaking and Entering with intent to commit a crime.  (Count 2).
2 counts of:	Malicious damage.  (Counts 3 and 10).
1 count of:	Being carried in a vehicle taken without the owner's consent, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956.  (Count 6).
2 counts of:	Illegal entry and larceny.  (Counts 7 and 8).

Age:  21.

Plea: Guilty.

Details of Offence:

The chronology of the offending is as follows:

Fernandes attended at a property to assist a friend in car valeting services.  Whilst there, Fernandes stole a bicycle worth £300.  Unbeknown an occupant of the property had witnessed the larceny and he contacted the car valet company and the bicycle was promptly returned.  There was a suggestion that Fernandes had stolen the bicycle to "order".  (Count 1). 

A vehicle was stolen and Mendes assisted in hotwiring the vehicle.  Fernandes was a passenger in the vehicle.  Incident discovered following the car coming off the road and overturning.  (Count 6).

The owner of a property in St Saviour returned home in the middle of the morning to find a total of 3 males in his property.  They left upon being confronted.  Rolling tobacco to the value of £7 had been stolen.  The fingerprints of Mendes was subsequently found on an internal door.  (Count 4).

Illegal entry and larceny occurred at the Portuguese Club in James Street.  Cash to the approximate value of £250 was stolen.  A tips bottle was smashed and the contents stolen, the cigarette machine was broken into and the table football machine had been broken into and monies stolen from within it.  A small safe was also broken into.  Mendes' fingerprints were found on the damaged cigarette machine.  (Count 5).

Whilst on bail for earlier offences Fernandes and Mendes illegally entered the Central Market and entered and stole from a number of premises.  Cash to the value of £60, a mobile telephone and a CCTV recording system valued at £1,500 was stolen from one shop.  Cash in the sum of £70 from another shop was stolen.  The contents of a charity box in the approximate sum of £40 was stolen from another shop.  Fingerprints of Fernandes were found at the scene of two of the offences.  The mobile phone stolen was recovered at a property in which Mendes was residing.  (Counts 7, 8, 9 and 10).

Whilst on bail for the above offences Fernandes broke and entered into the premises known as the New Church, Victoria Street which was being used for storage for theatre props.  Graffiti including Nazi symbols were sprayed on a variety of items.

Fernandes' fingerprints were found on a spray paint can located at the premises.  (Count 2 and 3).

The Crown's approach to sentencing was not to consider guidelines but to consider sentencing in the round.  The defendants claimed that they committed these offences under the influence of alcohol and had little recollection of these offences.  This was an aggravating factor.  It was also an aggravating factor that the defendants committed further offences whilst on bail.  The breaking and entry into a domestic property and confronting the owner was viewed as a serious offence.

Details of Mitigation:

The Crown viewed as the major mitigating factor the guilty pleas entered.  The defendant had not been co-operative during the police investigation and had denied involvement in the offences even when confronted with fingerprint evidence.  He was also a young offender and had the benefit of youth and the offences had been committed with he as under the age of 21.  A letter of apology and character references were provided but there was some reservations as to the sincerity of the expressions of remorse.  A recommendation for a Deportation Order was also being sought and Fernandes had indicated that he was happy to be deported.  This was to his credit.

The Defence contended that the offences were committed because Fernandes had got into bad company and that had then developed a problem with alcohol.  Whilst originally in employment he had lost his job and had got depressed and then started drinking etc.  Whilst he was not fully co-operative with the Police he had given information about the motoring offence.  He admitted the vandalism but had not been aware of the significance or the likely offence which would be caused by the Nazi symbols.  He offered his apologies.  He had a good family upbringing in Portugal and whilst he had a prior criminal record in Jersey it was relatively minor.  He agreed to be deported at the end of his sentence.  Following the raising of the issue of delay by the Court the Defence also suggested that the delay was an issue in the case.

Previous Convictions:

One conviction for 5 offences including possession of an offensive weapon, breach of the peace and malicious damage.

Conclusions:

Count 1:	2 weeks' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 6:	3 weeks' imprisonment, concurrent.
Count 7:	6 months' imprisonment, consecutive.
Count 8:	6 months' imprisonment, concurrent.
Count 9:	6 months' imprisonment, concurrent.
Count 10:	6 months' imprisonment, concurrent.

Total: 2 years' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	2 weeks imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 6:	2 months' imprisonment, concurrent.
Count 7:	18 months' imprisonment, concurrent.
Count 8:	18 months' imprisonment, concurrent.
Count 9:	12 months' imprisonment, concurrent.
Count 10:	6 months' imprisonment, concurrent.

Total: 18 months' imprisonment.

Recommendation for deportation made.

Fernandes had committed two offences of larceny, one offence of breaking and entry, two malicious damages offences, two illegal entry and larceny and one allowing to be carried in a stolen vehicle offences.  A number of offences had been committed whilst on bail.  In mitigation he had pleaded guilty to all the charges and although he had a previous criminal record it was considered to be modest.  The Court had taken into account that he was only just 21 and aged 20 when the offences were committed.  They had read the letters and references.  Taking into account the delay and his youth the Court felt able to reduce the conclusions a little and vary the various offences.  There was, however, no alternative to prison.

The Court was in no doubt that Fernandes' continued presence in the Island was detrimental to the community.  He committed a number of offences and he was deemed to be at high risk of re-offending.  The Court considered whether it was proportionate to deport having regard to his Article 8 Human Rights.  The Court noted that he came to Jersey in 2005 and all his family remained in Madeira with only an Uncle in Jersey.  Fernandes expressed a wish to return.  In the circumstances it was appropriate to make the recommendation for a deportation.

Dinarte Tiago Mendes

4 counts of:	Illegal entry and larceny.  (Counts 4, 5, 7 and 8).
1 count of:	Being carried in a vehicle taken without the owner's consent, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956.  (Count 6).
1 count of:	Larceny.  (Counts 9).
1 count of:	Malicious damage.  (Count 10).

Age:  19.

Plea: Guilty.

Details of Offence:

See Fernandes, above.

Details of Mitigation:

The Crown viewed as the major mitigating factor the guilty pleas entered.  Mendes had not been co-operative during the Police investigation even when confronted with fingerprint evidence of his involvement.  He had the benefit of his youth and fell within the provisions of the Criminal Justice (Young Offenders) Law 1994.  It was the Crown's submission that a sentence of Youth Detention was the only appropriate method of dealing with him on the basis of Articles 4 (2)(b) and (c).  He had expressed remorse and those expressions were deemed to be genuine.  He was also amendable to being deported at the end of his sentence which was to his credit.

The Defence suggested that there was a greater amount of mitigation available to Mendes as compared to his co-accused.  Matters contained within the Social Enquiry Report relating to his background and upbringing were brought to the Court's attention.  Initially when he came to the Island he had employment but after losing his job he started to associate with Fernandes and began drinking and using Cannabis and then committing offences.  There was some limited co-operation and the expressions of remorse were genuine.  Given the time spent on remand it was suggested that he should be allowed to return to Portugal without further penalty.  There was no objection to deportation.  He was using his time to good effect in Prison.

Previous Convictions:

He admitted to one offence of arson in Portugal but no independent verification of this offence or penalty imposed was available to the Court.  No other record.

Conclusions:

Count 4:	18 months' youth detention.
Count 5:	18 months' youth detention, concurrent.
Count 6:	3 weeks' youth detention, concurrent.
Count 7:	6 months' youth detention consecutive.
Count 8:	6 months' youth detention, concurrent.
Count 9:	6 months' youth detention, concurrent.
Count 10:	6 months' youth detention, concurrent.

Total: 2 years' youth detention.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 4:	18 months' youth detention.
Count 5:	18 months' youth detention, concurrent.
Count 6:	2 months' youth detention, concurrent.
Count 7:	18 months' youth detention, concurrent.
Count 8:	18 months' youth detention, concurrent.
Count 9:	12 months' youth detention concurrent.
Count 10:	6 months' youth detention, concurrent.

Total: 18 months' youth detention with a possible supervision order on release.

Recommendation for deportation made.

He committed four offences of illegal entry, one of larceny, one malicious damage and one being allowed to be carried in a stolen vehicle.  Five offences were committed with Fernandes.  Two of the illegal entries had been committed on his own or with others.  A number of offences had been committed whilst on bail.  One illegal entry was to a residential property and the Court always viewed the seriousness of such offences given the upset that was caused to householders and the risk of fear and distress, which had occurred in this case when they had confronted the owner.  Defence Counsel had argued that additional mitigation was available to Mendes justifying a lesser sentence than for Fernandes.  However, the Court viewed that any additional mitigation was balanced by the commission of a more serious offence of the illegal entry into  the residential property and, therefore, the same sentence was appropriate.  In mitigation he had his youth, being only 19 and his guilty pleas.  He had one previous conviction.  The Court had noted the contents of the Social Enquiry Report .  Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law, 1994 applied.  He had no with to be placed n Probation.  The Court was satisfied that the offending was too serious to be dealt with any anything other than a custodial sentence.

Deportation.  But for this recommendation he would have been subject to supervision upon release.  The Court was of the opinion that his continued presence was detrimental to the Island.  He had committed a number of offences and was of high risk of re-offending.  The Court considered the proportionality of a deportation as against his Article 8 rights.  He had only been in Jersey since November 2006, and only had an Aunt living here.  The remainder of his time was in Madeira.  He had expressed a desire to return to Madeira.  The Court concluded that it was entirely proportionate and, therefore, made the recommendation for deportation.

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

Advocate M. H. Temple for Fernandes.

Advocate O. A. Blakeley for Mendes.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Fernandes, you are before the Court for two offences of larceny, one of breaking and entering, two of malicious damage, two of illegal entries and larceny and one of allowing yourself to be carried in a car which had been taken away.  A number of the offences were committed whilst you were on bail. 

2.        In mitigation you have now pleaded guilty to all the charges.  Although you have previous convictions your record is modest.  We take into account the fact that you are only 21, and were 20 when the offences were committed.  We have read the letter and references.  We also take into account the delay there has been in this case.

3.        Having considered all those matters, it is clear to us there is no alternative to imprisonment, but in view of the matters such as your youth and delay we think we can reduce the conclusions a little.  We are also making variations within the sentences to reflect the relative seriousness of the offences. 

4.        On count 1; 2 weeks' imprisonment, on count 2; 18 months' imprisonment, on count 3; 12 months' imprisonment, on count 6; 2 months' imprisonment, on count 7; 18 months' imprisonment, on count 8; 18 months' imprisonment; on count 9; 12 months' imprisonment, on count 10; 6 months' imprisonment, but all of those to be concurrent.  That makes 18 months' imprisonment in total.

5.        As to deportation we have no doubt that your continued presence in the Island is detrimental.  You have committed a number of offences and you are assessed at being at high risk of re-offending.  We have to consider whether it would be proportionate to deport you in view of Article 8 of the European Convention on Human Rights.  You came to Jersey in 2005.  Your family are still in Madeira, you only have an uncle in Jersey, and you yourself wish to return to Madeira. 

6.        In the circumstances we consider it appropriate to make a recommendation for your deportation.

7.        Mendes, you are before the Court for four offences of illegal entry and larceny, one of larceny, one of malicious damage and one of allowing yourself to be carried in a stolen motor car.  Five of the offences were committed with Fernandes, two of the illegal entries were either on your own or with others.  Again a number of your offences were committed whilst on bail.

8.        In your case one of the illegal entries was to residential property, whereas all of those for Fernandes, and all your other ones were to commercial property.  The Court takes a particularly serious view of burglaries of residential properties, because of the upset that can be caused to householders and because of the risk that you will encounter the householder, thereby causing considerable fear and distress.  Indeed that is what happened in this case in that you encountered the householder when he returned to his home during the day.

9.        Advocate Blakeley has argued that the additional mitigation in your behalf should mean a lesser sentence then for Fernandes.  We think the additional points in your favour are balanced by the more serious offence that you committed in relation to the residential burglary and therefore we think the same sentence is appropriate.  We have taken into account your youth, you are only 19, your plea of guilty, the fact that you only have one previous conviction.  The matter set out in the report and the delay which is equally applicable in your case. 

10.      In your case we must consider Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 1994.  You have said that you do not wish to be placed on probation and in all the circumstances we are satisfied that the offending is too serious to be dealt with by way of a non-custodial penalty.

11.      The sentence in your case is, on count 4; 18 months' youth detention, on count 5; 18 months' youth detention, on count 6; 2 months' youth detention, on count 7; 18 months' youth detention, count 8; 18 months, youth detention, on count 9; 12 months' youth detention and on count 10; 6 months' youth detention.  All of those to be concurrent making a total of 18 months' youth detention in all and, subject to the deportation, you might otherwise be liable to supervision on your release.

12.      Turning to deportation we find that your presence too, in the Island, would be detrimental.  You have committed a number of offences and are at high risk of re-offending.  Turning to Article 8, your human rights, you came to Jersey in November 2006, your family are in Madeira, only your aunt is here and you too wish to return to Madeira on your release.

13.      Accordingly we consider a decision to deport you to be entirely proportionate and therefore we make the recommendation.

Authorities

European Convention on Human Rights.

Criminal Justice (Young Offenders) (Jersey) Law 1994.