Jersey Unreported Judgments

[2009]JRC103

ROYAL COURT

(Samedi Division)

22^nd May 2009

Before     :

F. C. Hamon, O.B.E., Esq., Commissioner, and Jurats Le Cornu and Fisher.

The Attorney General

-v-

Adriano Duarte Marques

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

First Indictment

1 count of:	Breaking and entering and larceny.  (Count 1).
1 count of:	Breaking and entering with intent to commit a crime.  (Count 2).
1 count of:	Taking a motor vehicle without the owner's consent or other lawful authority, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956.  (Count 3).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948.  (Count 4).
1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956.  (Count 5).
1 count of:	Dangerous driving, contrary to Article 22(1) of the Road Traffic (Jersey) Law 1956.  (Count 6).
1 count of:	Failing to stop a vehicle, contrary to Article 51(1) of the Road Traffic (Jersey) Law 1956.  (Count 7).

Second Indictment

1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956.  (Count 1).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948.  (Count 2).

Age:  20.

Plea: Guilty.

Details of Offence:

The defendant faced 7 counts on the First Indictment and 2 counts on the Second Indictment.  Dealing with the First Indictment:- counts 1 and 2 were breaking and entering commercial premises at night; count 3 was taking a motor vehicle without the consent of the owner; count 4 was driving whilst uninsured; count 5 was driving without a valid licence; count 6 was dangerous driving and count 7 was driving a vehicle and failing to stop when requested to by the Police.  The defendant pleaded guilty to all counts and was bailed on a curfew to face sentence before the Royal Court.

Whilst awaiting sentence the defendant re-offended and was indicted directly to the Royal Court in respect of this further offending.  Hence Indictment 2 came into existence.  He pleaded guilty to both counts on Indictment 2, namely count 1; driving without a valid licence and count 2; driving whilst uninsured.

Details of Mitigation:

Marques had no previous convictions.  He was young and had co-operated fully and was remorseful.  The offending behaviour had occurred during a brief interlude when he had fallen in with bad company who had been a bad influence on him.  He vowed to avoid them in the future.  He had the promise of work and accommodation from uncles who lived in Jersey and who were well established in the Island.  Of particular significance was the fact that his co-accused, Vieira, on the First Indictment, had been dealt with by the Magistrate's Court and had been ordered to complete 150 hours' community service.  Vieira had failed to perform his community service and had been returned to the Magistrate's Court, which had replaced his sentence with an order that Vieira be ordered to leave the Island and not to return for a period of three years.  Vieira, having been sentenced in that way it would leave Marques with a sense of grievance and injustice if he were to be treated more harshly by way of sentence by the Royal Court.

Previous Convictions:

None.

Conclusions:

First Indictment

Count 1:	15 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.
Count 3:	3 months' imprisonment, concurrent and 24 months' disqualification from driving.
Count 4:	3 months' imprisonment, concurrent.
Count 5:	£100 fine or 1 week's imprisonment in default.
Count 6:	6 months' imprisonment, concurrent and 24 months' disqualification from driving.
Count 7:	£100 fine or 1 week's imprisonment in default.

Second Indictment

Count 1:	£100 fine or 1 week's imprisonment in default.
Count 2:	3 months' imprisonment, concurrent.

Total:  15 months' imprisonment and 24 months disqualification from driving.

Recommendation for deportation sought.

Sentence and Observations of Court:

Community service as a direct alternative to 15 months' imprisonment.

First Indictment

Count 1:	210 hours' community service order.
Count 2:	210 hours' community service order, concurrent.
Count 3:	90 hours' community service order, concurrent.
Count 4:	90 hours' community service order, concurrent.
Count 5:	£100 fine or 40 hours' community service order in default.
Count 6:	120 hours' community service order, concurrent.
Count 7:	£100 fine or 40 hours' community service order in default.

Second Indictment

Count 1:	£100 fine or 40 hours' community service order in default.
Count 2:	90 hours' community service order, concurrent.

Total:  210 hours' community service order and 24 months disqualification from driving.

No recommendation for deportation made.

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE commissioner:

1.        There are seven counts on the First Indictment and two counts on the Second Indictment.  The most serious result from an incident that occurred in the early hours of 16^th November, 2008.  Marques is now 20 years old but at the time these offences were committed he was 19 years of age.  He was charged with a man called Vieira who was sentenced, after severance of the charges, to 180 hours of community service.  Vieira declined to finish the community service order and was returned to Court where he agreed to return to Madeira and not return to Jersey for 3 years.

2.        The first count involves breaking and entering a commercial property at Springside, Trinity.  A skylight was forced, the CCTV hard drive and cables for the camera were removed and £150 in cash was stolen from the letterbox.  The second count, again at Springside, Trinity, shows that a door was forced open and a Renault Megane was missing from the garage.  That car was seen at 1:35 on the morning of Sunday 16^th November, with two people, Vieira and the accused inside.  The accused was driving.  He was travelling at great speed.  A Police vehicle followed the car with blue lights flashing.  It was driven dangerously, well in excess of the speed limit, and at Rue de Neuilly, a 15 mile an hour lane, he drove at 60 miles an hour until he crashed into and demolished a garden wall.  The conditions were wet and slippery.  Vieira was found in the car and later, at about 3:00 in the morning, the accused was found hiding under a bush in Janvrin Road near where he lived.  He made the comment to the Police, "I stole a car" and was breathalysed but the test proved negative although at interview Marques told the Court that he drank wine, beer and some six to seven vodkas at a party that evening.  He had also smoked heroin during the week.  It is a long walk from town to Springside.  He frankly admitted that the break-in to what was his uncle's garage, was to steal money to buy heroin for Vieira.

3.        As the Crown Advocate has outlined he stole and took away the CCTV recorder which has since been recovered.  He also took an iron bar which was used to break into the other property where he stole the Renault car.  He freely admitted that he didn't have insurance or a valid driving licence.  He was free and frank in interview.  He told the Police that he had not seen the road signs when he crossed the junction without stopping.  He left Vieira in the vehicle and ran from the scene.

4.        He was remanded by the Magistrate's Court on strict bail conditions until sentencing today.  However on Sunday 11^th April, he was seen in St Brelade driving a turquoise Daihatsu car from the car park onto the main road.  He was stopped and he admitted smoking cannabis.  He was with a Mr Fernandes, not his uncle, and not with Vieira.  Apparently it was Mr Fernandes who had driven the car to the car park.  Marques did not realise that his provisional driving licence was out of date but he was of course under curfew as part of his bail stipulations and this offence occurred at 11:30 pm, one hour after the bail stipulation and he was on the Five Mile road and not in Town.

5.        We have considered most carefully AG-v-Gaffney 1995/107 where the Court set a benchmark of 18 months for entering commercial premises at night.  This offence occurred in the middle of the night, it was pre-planned and damage was caused.  Dangerous driving has its penalties and a term of imprisonment not exceeding 2 years might follow although the Magistrate Court guidelines set a custodial sentence for 3-6 months with disqualification and we have of course had careful regard to the provision of the Road Traffic (Jersey) Law 1956 and to the Motor Traffic (Third Party Insurance)(Jersey) Law 1948.  The Crown Advocate has pointed out that where concurrent sentences are imposed, sentences may be increased and of course the defendant fled the scene of the crash leaving Vieira in the vehicle and we have seen how he has been dealt with.

6.        We have read most carefully the letters that Marques has sent, but he was driving the car.  He and Vieira decided to break into the premises at Trinity and walked the considerable distance from town in order to break into his uncle's store.  The argument about supporting his family in Madeira has caused us some difficulty but he has come to Jersey for the right reasons and he has taught himself English.  He has no previous convictions, he pleaded guilty, he has shown remorse and his age of course, is very important, although he was in breach of his curfew which ran out at 10:30 pm, and he was at the Five Mile road an hour after that when he was told by the Court to be at home. 

7.        Looking at the Criminal Justice (Young Offenders)(Jersey) Law 1994 the Court is not permitted to impose a custodial sentence on a young offender unless no other sentence can be justified.  Under these criteria

(i)        the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them;

(ii)       only a custodial sentence will be adequate to protect the public from serious harm; or

(iii)      the offence although the totality of the offending is so serious that a non-custodial sentence cannot be justified. 

He has been assessed by probation as at a low risk of re-offending.  We have taken into account all the wise words of the Crown Advocate, but this was not a spree.  We are, with some reluctance, going to impose a community service order.

8.        We are going to impose 210 hours' community service order, which is the equivalent of 15 months which the Crown Advocate asked for, and you are disqualified from driving for 24 months.  Now if you offend again the consequences will be extremely serious, you appreciate that.  Count 1 and 2; you will serve 210 hours' community service, Counts 3, 4 and 9; 90 hours' community service order, concurrent, Count 6; 120 hours' community service order, concurrent, Counts 7 and 5 of the First Indictment and Count 1 of the Second Indictment you are fined on each count £100 concurrent.  There will be imposition of a further 40 hours' community service if the fines are not paid and that again, is concurrent. 

9.        There will be no deportation order made.

Authorities

AG-v-Gaffney 1995/107.

Road Traffic (Jersey) Law 1956.

Motor Traffic (Third Party Insurance)(Jersey) Law 1948.

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

Immigration Jersey Order 1993.

Magistrate's Court Guidelines.