Jersey Unreported Judgments

[2010]JRC210

ROYAL COURT

(Samedi Division)

19^th November 2010

The Attorney General

-v-

Brent Gavin Bisson

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

First Indictment

Second Indictment

Age:  23.

Plea: Guilty.

Details of Offence:

The defendant was found slumped asleep in a doorway in the early hours of the morning by Police Officers.

Whilst on bail for the above offence the defendant took and drove away a motor vehicle from a secure garage causing damage to the vehicle in so doing.  He did not have a full driving licence nor insurance.  When stopped by Honorary Police Officers he refused to provide a road side breath sample and resisted arrest in running away, attempted to head butt and general resistance.  He was too intoxicated and disruptive for a breathalyser test to be undertaken at Police Headquarters.

The above facts place him in breach of a Probation/Community Service Order imposed by the Royal Court on 4^th June, 2010 for an offence of breaking and entry and larceny ([2010] JRC 105).

Details of Mitigation:

The Crown

Guilty pleas all entered when matters still before the Magistrate's Court.  Not co-operative with Police.  Did not have the benefit of youth as mitigation.  Did not have benefit of previous good character as had previous record including previous offences for TADA and no insurance.  Assessed at high risk of re-offending and candidly accepted that he expected a custodial sentence.

Defence

Accepted that a custodial sentence was inevitable but suggested lesser sentence than sought by the Crown should be imposed.  Guilty plea, remorseful, apology to Court, still relatively young man and had the support of his family.  Consumption of alcohol played a part in his offending and he was taking advantage of the help and support that was available to him at Prison to address alcohol problems.  Letter of apology and reference handed up.

Previous Convictions:

4 convictions for a total of 14 offences including TADA, no licence, no insurance, grave and criminal assault, possession of a controlled drug, common assault and public order offences.

Conclusions:

First Indictment

Second Indictment

Breach of Probation/Community Service Order

Of the 180 hours ordered, defendant had completed 55 hours leaving a balance of 125 hours.  The Crown took the equivalent of 125 hours to be 6 months' and 2 weeks' imprisonment, consecutive to the First and Second Indictments and discharge Probation and Community Service Orders.

Total:  18 months' and 2 weeks' imprisonment plus disqualification from driving for 3 years. 

Sentence and Observations of Court:

When Bisson had appeared before the Royal Court in June 2010 for breaking and entry and larceny at a residential property at night he had been given a chance.  It was clear that the decision had been a finely balanced one with the Jurats being split and only in consequence of the Deputy Bailiff's vote that a non-custodial sentence was passed.  He had not taken advantage of the chance offered to him on that occasion and had committed further offences.  In mitigation the Court had taken into account his guilty plea entered at the earliest opportunity the letter of remorse and the reference.  The Court accepted that he was remorseful and determined to change his life and the Court hoped that he would be successful otherwise future appearances before the Court would almost inevitably result in him receiving longer and longer sentences.  The Court expressed the hope that he take advantage of the courses and support that were available.  He had very realistically accepted that no alternative other than custody.  He also fell to be sentenced for the breach of Probation/Community Service have completed 55 out of the 180 hours.  The Crown had given credit for the 55 hours and had sought the custodial equivalent for the balance outstanding.  The Court did not consider this was the correct or fair way of calculating the alternative sentence.  If, for example, a defendant had done half the Community Service ordered then he was to be given credit for half the alternative prison sentence.  As a technical 'starting point' the Court took the view that a percentage calculation should be undertaken.  In this case the defendant had completed just under one third and he was entitled to be given credit for the one third which equalled 4 months leaving a sentence of 8 months for the breach.  However, overall the Court agreed that the Crown's conclusions were correct and the correct total sentence was one of 18 months' imprisonment.

First Indictment

Second Indictment

Breach of Probation/Community Service Order

Existing Probation and Community Service Orders were discharged and a sentence of 8 months' imprisonment, consecutive to all other counts. 

Total:  18 months' imprisonment plus disqualification from driving for 3 years. 

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

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE bailiff:

1.        Mr Bisson, when you appeared in the Court in June for the offence of breaking and entering residential property at night, you were given a chance.  It was clearly a finely balanced decision because the Jurats were divided and it was only the casting vote of the Deputy Bailiff which saved you from a prison sentence at that time.  So despite that clear warning of the danger you were in, you have not taken advantage of the chance which the Court offered you, because you have now committed these offences for which you are before us. 

2.        In mitigation you have pleaded guilty at an early stage and we have read your letter and the references you have supplied.  In particular, we note from your letter that you are remorseful for what you have done and that you are determined to try and change the way that your life seems to be progressing at the moment and we hope very much that you are successful in that, because otherwise you will find yourself appearing here again and again, with the sentences possibly getting longer and longer depending on what offences you commit.  That is not a good way to go forward and we hope very much that you will take advantage of the various courses and support which are offered in the prison, as you have said you wish to do.  But very realistically you have accepted that there is no alternative to prison on this occasion and we commend you for your realism. 

3.        I am going to deal first with the sentence for the breach of Probation and Community Service Orders.  There is a technical point here.  You have completed 55 hours out of 180.  What the Crown has done in order to try and calculate the appropriate sentence today is to give credit for the 55, leaving a balance of 125 and it has then used the normal conversion scale to reach an equivalent for that, namely 6 months and 2 weeks' imprisonment.  But in our view that is not the fair way to try and calculate the right sentence where part of a Community Service Order has been carried out.  If, for example, a person has carried out half the community service hours he has been ordered to carry out, we think he ought to be given credit for half the equivalent prison sentence, subject of course to particular circumstances which lead to a different conclusion.  But as a broad starting point that seems to us the fair way to do it.  Now, in this case you have completed just under one third of the hours you have been ordered to do, adopting a broad brush approach.  Therefore, we think we should give credit for one third of the sentence, in other words 4 months out of the 12 months so that leaves 8 months as being the appropriate sentence to pass for the breach. 

4.        However, we are quite satisfied that there is no question of increasing the overall sentence.  We have considered whether to reduce it as your counsel has urged, but we think that overall the total sentence moved for is correct as in many ways the 12 month sentence for the previous offence of breaking into residential premises at night could be considered to be lenient. 

5.        In all the circumstances we think the right sentence is one of 18 months; so the actual sentences are as follows:- on Count 1 of the First Indictment; 1 day's imprisonment.  The second Indictment:- Count 1; 10 months' imprisonment and disqualification from driving for 3 years, Count 2; 1 week's imprisonment, Count 3; 4 months' imprisonment, Count 4; no separate penalty, Count 6; 1 month's imprisonment, all of those to be concurrent so that is 10 months' on that Indictment.  Then for the breach offence of breaking and entering, we impose a sentence of 8 months' imprisonment and that to be consecutive, making therefore a total of 18 months' imprisonment and disqualification from driving for 3 years. 

Authorities

AG-v-Bisson [2010] JRC 105.