Jersey Unreported Judgments

[2011]JRC176

Royal Court

(Samedi)

9 September 2011

The Attorney General

-v-

Mark William O'Brien

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

Age:  31.

Plea: Guilty (on a particular basis to Counts 1, 4, 9, 10 and 11).

Details of Offence:

From late October 2010 to O'Brien's arrest on 23^rd November, 2010, there was a spate of night-time burglaries, which ceased following his arrest.  O'Brien came to the attention of the police when he was seen driving a white van the wrong way along Poonah Road and Aquila Road around lunchtime on a week day.  Once the van stopped Inspector Hafey approached the driver, O'Brien, who he recognised and spoke with him regarding his manner of driving.  The officer suspected he was under the influence of some form of intoxicant and due to his furtive behaviour had reasonable grounds to detain him for a drugs search.  O'Brien attempted to place an item in his mouth but the officer managed to prevent him from doing so and, despite a lengthy struggle, was able to restrain him until assistance arrived.  The item was a Buprenorphine tablet.  Following arrest O'Brien refused to provide a sample for analysis during the drink/drugs station procedure.  The van he had been driving was taken to the police station where a search revealed an "Aladdin's Cave" of electronic, computer, photographic and mobile phone equipment and a quantity of cash.  O'Brien was interviewed over a three week period and alternated between giving no comment to total denial of involvement in any burglaries and maintained all the equipment in the van belonged to him.  It was ascertained he had taken the van without permission and was still subject to a 3 year disqualification.  Numerous forensic exhibits had been seized from the break-ins.  O'Brien pleaded guilty only to break-in offences where conclusive forensic evidence of his presence could be tendered and receiving offences only where the recovered items were positively identified by those from whom they had been stolen.  He admitted stealing or receiving items value £4,650 plus cash £260.  Items value £1,250 recovered.  Heroin addict; had been released from prison only six weeks before arrest for these offences.  Pre-sentence reports disclosed alarmingly that O'Brien, often whilst intoxicated, got "a buzz" from night-time burglaries of occupied homes which was greater than that from heroin.  Little remorse; recidivist offender with a history of similar offences; still abusing illicit substances whilst on remand at HMP La Moye. 

Details of Mitigation:

Little mitigation available; entered guilty pleas to a sufficient number of offences not to justify taking other matters to trial. 

Previous Convictions:

17 convictions comprising 71 offences, 33 of those for theft or kindred include many break and entry, 15 drug related including 3 obstructions, previous TADAs, 4 no licence or insurance, 3 driving under influence or refusing to provide a sample. 

Conclusions:

Total: 3½ years' imprisonment, 3 years' disqualification from driving and £100 fine or 1 week's imprisonment in default.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The Court considered the two brackets of offending, accepted that they should impose consecutive custodial sentences but felt they should reduce the total sentence sought by the Crown, imposing a sentence of 3 years' imprisonment. 

Total: 3 years' imprisonment, 3 years' disqualification from driving and £100 fine or 1 week's imprisonment in default.

Forfeiture and destruction of drugs ordered.

C. M. M. Yates, Esq., Crown Advocate.

Advocate J. N. Heywood for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment which contains a number of charges.  To some of those you have pleaded not guilty and those pleas have been accepted by the Crown, and the Court is sentencing you only on the charges to which you have pleaded guilty. 

2.        Various matters were raised by your counsel in the course of outlining mitigation, and the Court wants to say something about the delay which has taken place during which you have spent time in custody.  Any defendant is entitled to put the Crown to proof of the offences which are charged against him, but a defendant must be clear about what the effect of doing that is.  It means that he is unlikely to be able to complain about delay, nor is he able to rely on cooperation with the police as part of the mitigation which he puts before the Court.  Furthermore, any protestations of remorse will be measured against the attitude which the defendant has expressed by his lack of cooperation with the police.  Those are remarks of a general character, but insofar as they are relevant in your case, the Court takes them into account.  

3.        The Court has looked at the two brackets of offending and accepts the submission of the Crown that these should result in consecutive sentences.  The Court thinks a custodial sentence is entirely appropriate for the offending which you have committed and for that reason we have therefore looked at the totality of the charges and also of the sentences for which the Crown moved and also at the individual charges which have led to the Crown's conclusions.  We think the totality of the sentence at 3½ years' imprisonment is too high and we are going to reduce it to a total of 3 years' imprisonment.  The mechanism for doing so is to look at Count 9, which is the taking and driving away charge, where the Crown has moved for 18 months.  We think 12 months' imprisonment is the right sentence to arrive at for that charge, having regard to the fact that there was at least an element of a contract between you and the owner of the car which led to you having possession of it.  As against that you clearly breached the contract because you knew that you were not entitled to drive and he had told you that you were not to drive it.  As to Count 10, the charge of driving whilst disqualified, the Court considers that 8 months' imprisonment on that Count is not enough; there is an element of contempt of the Court's orders when a person drives whilst disqualified and we are going to increase that to 12 months, but it has no effect on the overall sentence because the sentence will run concurrently with Count 9. 

4.        We sentence you as follows, on Count 1; 18 months' imprisonment, on Count 4; 15 months' imprisonment, on Count 5; 24 months' imprisonment, on Count 6; 18 months' imprisonment, on Count 7; 18 months' imprisonment, all those sentences will run concurrently.  On Count 9 you are sentenced to 12 months, on Count 10; 12 months, on Count 11; 12 months, on Count 12; £100 fine or 1 week's imprisonment, on Count 13; £100 fine or 1 week's imprisonment, on Count 14; 1 month, on Count 15; 2 weeks, and on Count 16; 4 months.  You will serve those sentences concurrently with each other but consecutively to Counts 1-7, making a total therefore of 3 years' imprisonment.  In reaching that we have had regard to all the matters which are on the papers before us, including what is in the background reports and, of course, we have had regard to your guilty plea and subject to the comments I have made earlier, had regard to what your counsel has said. 

5.        In addition you will be disqualified for 3 years from driving. 

6.        We also order the forfeiture and destruction of the drugs. 

Authorities

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

AG-v-Gaffney [1995] JLR N 22b.

Wylie-v-AG 2002/13.

R-v-Webbe [2002] 1 Cr. App. R. (S) 82.

AG-v-Munks 1999/168A.