Jersey Unreported Judgments

[2011]JRC001

ROYAL COURT

(Samedi Division)

5^th January 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle, Tibbo, Le Breton, Morgan, Kerley and Marett-Crosby .

The Attorney General

-v-

Luis Carlos Pestana Goncalves

Michael Dos Santos Moreira

Carlos Eduardo Cabral Caboz

Sentencing by the Superior Number of the Royal Court, to which the Defendants were remanded by the Inferior Number on 16^th December, 2010, following guilty pleas to the following charges:

Luis Carlos Pestana Goncalves

6 counts of:	Breaking and entry and larceny (Counts 3, 7, 8, 12, 13 and 14).
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:	Failing, without reasonable excuse, to provide a specimen when required to do so, contrary to Article 30(7) of the Road Traffic (Jersey) Law 1956 (Count 5).
1 count of:	Robbery (Count 6).
1 count of:	Receiving stolen property (Count 10).

Age:  25.

Plea: Guilty.

Details of Offence:

In the period between May 2010 and July 2010, a number of break and entry offences took place in the Island.  These were committed by Gonclaves and Moreira, either jointly or on the majority of occasions, individually.  Gonclaves also faced a charge of robbery, motoring charges and charges of receiving stolen property and was in breach of Magistrate's Court Orders.  Caboz faced a single count of receiving stolen property.  All three men are users of controlled drugs.  All of these break and entry offences were to unoccupied houses, (except for Count 1 which related to an unoccupied hotel room, but the Crown submitted that the same principles applied).  Some were homes of the elderly.  Some were defiled by untidy searches, which caused a large amount of distress and upset for the victims.  One householder, an 80 year old, was left paranoid in her own home and without items of great sentimental value.  The young victim of the robbery was now anxious and nervous both when out and in her own home.  Little remorse.  Receiving offence related to £1,500 worth of stolen goods from a high value (£12,000) burglary of a dwelling within 48 hours of the offence.  Defendant (Caboz) tried to sell the stolen goods to local jewellers.  Little remorse from any defendant and uncooperative in police interviews. 

Breach of Order.

On 21^st April, 2010, Goncalves was sentenced by the Magistrate's Court to a Community Service Order, a probation Order and various financial penalties for twenty five offences including possession of drugs, motoring offences, theft and malicious damage.  He was disqualified for 2 years for driving whilst unfit through drink or drugs.  As a consequence of his further offending he was in breach of those Orders.

Details of Mitigation:

Was now remorseful, offences related to unoccupied premises with breaking and entering occurring during daytime.  Defence counsel submitted robbery offence was at the lower end of the scale withy no violence or injury.  Despite his drug use, was generally hardworking having been in the Island 10 years.  Provided letter of remorse to the Court.  Defence counsel submitted sentence for robbery should run concurrent. 

The Court agreed that the Crown's conclusions were correct but noted the matter of the delay in sentencing.  All three defendants were due to be sentenced on 16^th December, 2010.  As a result of what the Court considered to be an entirely avoidable Court listing problem, the defendants had suffered additional apprehension, through no fault of their own.  As a result, there would be a discount of 1 month off sentence. 

Previous Convictions:

Four convictions for twenty nine offences between 2006 and 2010, including eleven dishonesty offences.  Also in breach of Magistrate's Court Orders. 

Conclusions:

Count 3:	4 years' imprisonment.
Count 4:	3 months' imprisonment, concurrent.
Count 5:	3 months' imprisonment, concurrent, plus 3 years' disqualification from driving.
Count 6:	2 years' imprisonment, consecutive.
Count 7:	4 years' imprisonment, concurrent.
Count 8:	4 years' imprisonment, concurrent.
Count 10:	1 year's imprisonment, concurrent.
Count 12:	4 years' imprisonment, concurrent.
Count 13:	4 years' imprisonment, concurrent.
Count 14:	4 years' imprisonment, concurrent.

Breach of Community Service Order and Probation Order imposed by the Magistrate's Court on 21^st April, 2010.

5 months' imprisonment, concurrent and discharge original orders.

Total:  6 years' imprisonment plus 3 years' disqualification from driving.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 3:	1 year's imprisonment.
Count 4:	3 months' imprisonment, concurrent.
Count 5:	3 months' imprisonment, concurrent, plus 3 years' disqualification from driving.
Count 6:	2 years' imprisonment, consecutive.
Count 7:	3 years' 11 months' imprisonment, concurrent.
Count 8:	3 years' 11 months' imprisonment, concurrent.
Count 10:	1 year's imprisonment, concurrent.
Count 12:	3 years' 11 months' imprisonment, concurrent.
Count 13:	3 years' 11 months' imprisonment, concurrent.
Count 14:	3 years' 11 months' imprisonment, concurrent.

Breach of Community Service Order and Probation Order imposed by Magistrate's Court on 21^st April, 2010.

5 months' imprisonment, concurrent, and discharge original orders. 

Total:  5 years' 11 months' imprisonment, plus 3 years' disqualification from driving.

Recommendation for deportation made. 

Michael Dos Santos Moreira

3 counts of:

Breaking and entry and larceny (Counts 1, 2 and 7a).

Age:  33.

Plea: Guilty.

Details of Offence:

See Goncalves above.

Details of Mitigation:

Was now remorseful and had been unable to defeat his drug addiction to heroin.  Little education, behavioural problems and suffered congenital heart defect aged 21 years.  Two daughters lived locally.  Provided letter of remorse to the Court.  Desire to improve his life and had become drug free and made constructive use of his time whilst on remand. 

The Court agreed that the Crown's conclusions were correct but noted the matter of the delay in sentencing.  All three defendants were due to be sentenced on 16^th December, 2010.  As a result of what the Court considered to be an entirely avoidable Court listing problem, the defendants had suffered additional apprehension, through no fault of their own.  As a result, there would be a discount of 1 month off sentence. 

Previous Convictions:

Eleven convictions for forty five offences between 1994 and 2007, including twenty eight dishonesty offences.

Conclusions:

Count 1:	3 years' imprisonment.
Count 2:	3 years' imprisonment, concurrent.
Count 7a:	3 years' imprisonment, concurrent.

Total:  3 years' imprisonment.

Sentence and Observations of Court:

Count 1:	2 years' 11 months' imprisonment.
Count 2:	2 years' 11 months' imprisonment, concurrent.
Count 7a:	2 years' 11 months' imprisonment, concurrent.

Total:  2 years' 11 months' imprisonment. 

Carlos Eduardo Cabral Caboz

1 count of:

Receiving stolen property (Count 15).

Age:  31.

Plea: Guilty.

Details of Offence:

See Goncalves above. 

Details of Mitigation:

Remorseful and early guilty plea.  Was not a "professional" receiver of stolen goods.  No involvement in the planning or commission of the breaking and entering offences.  Items he sold were recovered.  Came to the Island aged 18 years and became involved in drugs.  Previously sought help voluntarily from Alcohol and Drug.  Since his arrest he had secured employment and accommodation. 

The Court agreed that the Crown's conclusions were correct but noted the matter of the delay in sentencing.  All three defendants were due to be sentenced on 16^th December, 2010.  As a result of what the Court considered to be an entirely avoidable Court listing problem, the defendants had suffered additional apprehension, through no fault of their own.  As a result, there would be a discount of 1 month off sentence. 

Previous Convictions:

Four convictions for four offences between 1998 and 2010, including one dishonesty offence. 

Conclusions:

Count 15:

12 months' imprisonment.

Total:  12 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 15:

170 hours' Community Service Order, equivalent to 11 months' imprisonment in default, plus a 12 month Probation Order.

No recommendation for deportation made. 

R. J. MacRae, Esq., Crown Advocate.

Advocate S. A. Pearmain for Goncalves.

Advocate M. L. Preston for Moreira.

Advocate C. R. Baglin for Caboz.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Goncalves, Mr Moreira and Mr Caboz, the Court is faced today with sentencing you on an Indictment which, in your case Mr Goncalves, involves one count of robbery, five counts of breaking and entry and larceny, two counts of driving offences and one count of larceny and one count of receiving; Mr Moreira for you, two counts of breaking, entry and larceny, and one count of conspiracy to break and enter and steal; in your case Mr Caboz, one count of receiving. 

2.        In relation to the offences of breaking and entering and larceny, it is right just to refer to previous decisions which the Court has made and to start with the comment of the Royal Court in the case of AG-v-Da Silva 1997/218, where reference was made by the then Bailiff to the comments of the his predecessor, Bailiff Ereaut in 1983 in the case of AG-v-Allo and Collins (1983) JJ 85 (C of A):-

"It is common knowledge that breaking into a private dwelling has a most distressing effect invariably on the occupiers of the dwelling.  Sometimes that effect takes a form of fear and in all cases it takes a form of distress.  And we believe that that is an element of this offence which is not always sufficiently appreciated by some Courts but certainly it is appreciated by this Court, and this Court has always tried to make clear, and we make it clear again today, the distress element, which is an aggravating factor." 

That was in the Court of Appeal in Jersey.  In R-v-Brewster [1998] 1 Cr App R 220 in 1997..  Lord Bingham said this:-

"Domestic burglaries are and always has been, regarded as a very serious offence.  It may involve considerable loss to the victim.  Even when it does not, the victim may lose possessions of particular value to him or her.  To those who are insured, the receipt of financial compensation does not replace what is lost.  But many victims are uninsured; because they have fewer possessions, they are more seriously injured by the loss of those they do have".

And then Lord Bingham went on:-

"The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence.  Most people, perfectly legitimately, attach importance to the privacy and security of their own homes.  That an intruder should break in or enter, for his dishonest purposes, leaves the victim with a sense of violation and insecurity.  Even where the victim is unaware, at the time that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place;"

Those comments were adopted also by the Royal Court in the case involving you Mr Moreira in 2003 where the Royal Court said:-

"2       The clearest guidance on sentencing levels for offences of this nature is to be found in the case of the Attorney General-v-da Silva (4th December, 1997) Jersey Unreported.  That suggests that the Court starts by looking at something in the region of 2 years for breaking and entering unoccupied residential premises where there is a guilty plea."

And he says that of course other factors then come into account. 

3.        It is just worth pausing there to look at the victim personal statement that was made by one of the victims of the houses that you went into where she says that she feels paranoid and insecure as a result of the break-in.  She says that the property that was stolen from her house was extremely sentimental.   It included an Omega watch inherited from her late mother, which although it was a valuable watch, the value was not important, she cannot replace it because of the sentimental value of it. 

4.        Mr Goncalves, as to the matter of robbery, the Crown say this in their conclusions.  The English Court of Appeal decisions provide a sentencing band for a street robbery or mugging where no weapon was used of between 18 months' and 3 years' imprisonment on a guilty plea.  The Crown accepts that the robbery committed by you may have involved little planning and did not involve a high degree of violence.  However, the fact that you committed this robbery against a lone female victim, late at night, should be viewed as a highly aggravating feature for sentencing purposes. 

5.        That victim said this in her personal impact statement: "the incident has had no physical effect but it has impacted significantly on my confidence and independence which has practical implications on my day to day working and social activities as well as my emotional well-being."  So the result of your mugging causes that victim daily difficulty and that the Court has very much taken into account. 

6.        The Court has listened carefully to everything which has been said by your Counsel and has taken into account the letter of which you have written to the Court expressing your remorse.  The Court has noted your guilty plea, gives credit for the mitigation which is available for that.  However, subject to one matter which I shall come to in a moment in relation to all three accused, the Court considers overall, that the conclusions of the Crown are correct and therefore that, as I say subject to the one matter which I am now going to come onto, that is the way we have approached this case. 

7.        That matter is the question of the delay from last December.  The criminal justice system has at its core the requirement of the community that criminal activity is appropriately marked by the sentences that are imposed.  Many factors go into the assessment of those sentences and it is important that at the end of the process every participant should be able to recognise objectively that justice has been done, even if individually they might not agree with the actual sentence that has been imposed.  In this case the accused were expecting to be sentenced on 16^th December, 2010.  As a result of a quite avoidable listing problem the Court could not in fact deal with the case on that day.  It is obvious that in the vast majority of cases the accused will be apprehensive about the sentencing process and that emotional apprehension peaks on the day of sentence.  On 16^th December this was all for nothing because for reasons which were in no way attributable to the accused, the sentencing was adjourned.  The commission of the crimes involved here has resulted in emotional stress for the victims, which I have mentioned, and that of course is not attributable to any fault in their part but is attributable to the accused.  So we are anxious not to overstate the significance of the adjournment and the delay from 16^th December.  We think that Advocate Preston was correct in his approach to say that there should be a slight reduction for the delay on sentence and I quote from him "he does not want to make a meal of it."  We think it is right to recognise the fact of the adjournment and in our assessment of the correct sentence to impose on each of the accused, we have reduced the sentences by 1 month or, as the case will be clear, its equivalent. 

8.        So Mr Goncalves, as far as you are concerned you are sentenced as follows.  On Count 3, breaking and entry and larceny, you did not plead guilty to that but you pleaded guilty to receiving and in the circumstances we reduce the conclusions there to 12 months' imprisonment.  On Count 4; 3 months' imprisonment, concurrent.  Count 5; 3 months' imprisonment, concurrent, and 3 years' disqualification from driving.  On Count 6; 2 years' imprisonment, consecutive.  On Count 7; breaking and entering and larceny, and taking into account very much the extent of the breaking and entering, the numbers of occasions on which took place and your previous record, you are sentenced to 3 years' and 11 months' imprisonment, concurrent with Count 1, a reduction of 1 month from 4 years is to take effect because of the delay from December.  On Count 8; 3 years' and 11 months' imprisonment, concurrent with Count 1.  On Count 10; 1 year's imprisonment, concurrent with Count 1.  On Count 12; 3 years' 11 months' imprisonment, concurrent with Count 1.  On Count 13 and Count 14 each; 3 years' and 11 months' imprisonment, concurrent with Count 1.  For the breach of Community Service Order and Probation Order imposed in April 2010, the Court sentences you to 5 months' imprisonment, concurrent with the original orders to be discharged.  The total imprisonment therefore is 5 years' and 11 months. 

9.        The Court has been asked to make a recommendation for your deportation.  The offending that you have committed in the Court's view clearly takes you past the first limb of the test in Nazari (1980) 3 All ER 880 which is now applied in Jersey as modified through the cases of Camacho-v-AG [2007] JLR 462 and De Gouveia-v-AG [2009] JLR 169 and the Court is entirely satisfied that your continued presence in Jersey is detrimental to this community.  In accordance with those authorities I have mentioned we have now had to consider the European Convention interests which you and others have, including Ms Sareava and your children by her, and other relatives and we have to decide whether those outweigh the detriment which your continued presence would cause to the community.  We have read Ms Sareava's letter carefully and we have noted also that you have in fact been separated since Autumn 2009 and it is unclear as to the current status of your relationship with her.  We have noted that your record is poor.  We have also noted that the Court deals in civil family cases regularly and it is an unfortunate fact that on the breakdown of a relationship between parents, one or other frequently does leave the Island and arrangements for contact then have to be made which involve the children going to another jurisdiction for that contact to take place.  Here, as I have said, there already has been some breakdown in 2009 and the extent of any reinstatement of that relationship is unclear.  In the circumstances the Court has had regard to all the Convention interests which I have mentioned and nonetheless, thinks it is appropriate to make a recommendation to the Lieutenant-Governor when he comes to take that decision, that you should be deported. 

10.      Mr Moreira, in your case you fall to be sentenced for two offences of breaking and entering and larceny and one count of conspiracy to break and enter and steal.  The Court considers the Crown's conclusions in the light of the principles which I have mentioned, to be entirely correct and they are reduced only by one month for the reason which I have given earlier. 

11.      You are therefore sentenced to 2 years' and 11 months' imprisonment on Counts 1 and 2 and also on Count 7a and those periods will be concurrent, making a total of 2 years' and 11 months' imprisonment. 

12.      Mr Caboz, you are before us for one count only of receiving stolen property.  In the Court's view this therefore falls in a slightly different category from the other offences with which we have had to deal today.  We have taken account of the mitigation which has been put before us as indeed we have in all cases, and in our view the right course is to impose a Community Service Order upon you coupled with probation. 

13.      We would have imposed 11 months' imprisonment; that is reducing the conclusions of the Crown by 1 month to take account of the delay from December.  In the circumstances that is reflected by 170 hours' community service which you will perform.  In addition we put you on a Probation Order for a period of 12 months and of course you must therefore follow all the requirements of the probation office in that respect. 

14.      We have considered carefully the issue of deportation.  The Crown has contended we should make a recommendation for deportation.  The Court is not going to do so on this occasion but you should be very aware that offences against our community are such that deportation orders are made and will be made where appropriate in other cases.  Can I just remind you of the words of Lord Bingham in the case of R-v-Nazari (1980) 3 All ER 880:-

"This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records.  That is self-evident.  The more serious the crime the longer the record the more obvious it is that there should be an order recommending deportation."

So we are not going to make a recommendation for deportation on this occasion but you should be well aware of the risks that will await you if continue on any line of criminal offending.  I just add also that if you should not perform the terms of your Community Service Order or you should not perform in accordance with the Probation Order which has been imposed, you are liable to be brought back before this Court and sentenced again for this original offence. 

Authorities

AG-v-Da Silva 1997/218.

AG-v-Allo and Collins (1983) JJ 85 (C of A).

R-v-Brewster [1998] 1 Cr App R 220.

AG-v-Moreira [2003] JRC 083A.

R-v-Nazari (1980) 3 All ER 880.

Camacho-v-AG [2007] JLR 462.

De Gouveia-v-AG [2009] JLR 169.

Gill-v-AG 1999/160.

AG-v-Fenn and Others [2003] JRC 105.

Mendes-v-AG [2003] JCA 106.

Whelan on Aspects of Sentencing in the Superior Court of Jersey.