Jersey Unreported Judgments

[2011]JRC200

Royal Court

(Samedi)

7 October 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton and Nicolle.

The Attorney General

-v-

Zbigniew Pietrzyk

Pawel Lipski

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

Zbigniew Pietrzyk

First Indictment

7 counts of:

Illegal entry and larceny (Counts 1, 4, 5, 7, 8, 9 and 11).

Second Indictment

1 count of:

Breaking and entry with intent to commit a crime (Count 1).

Age:  46.

Plea: Guilty.

Details of Offence:

The defendants committed a spree of breaking and entering and illegal entry offences in St Helier between January and May 2011. 

Count 1 involved the theft of two bicycles only one of which was recovered.  The un-recovered bicycle is worth £4,000. 

Count 8 was an illegal entry of an occupied dwelling house at night during which a large quantity of alcohol was stolen together with three wallets containing cash and cards.  None of the stolen property has been recovered. 

Count 11 was an illegal entry of a garage on residential premises.  The occupiers of the house disturbed the defendants in an act and the husband chased Pietrzyk some distance through town but lost sight of him.  All of the stolen property (which included a number of power tools) was recovered. 

The remaining counts all involved either sheds or garages on residential premises, with the exception of Count 6 which was a shed belonging to Transport and Technical Services.  The garage in Count 10 was attached to the house. 

Counts 2 and 3 concerned two visits to the same premises. 

The following aggravating features were identified:-

Two defendants acting together;

Offences committed at night;

Repeated visits to the same premises (Counts 2 and 3 concerned the same premises);

Property of high value remains un-recovered (in four cases none of the stolen property had been recovered and in others only some had been found.  Un-recovered items included a number of power tools).

In Count 11 the householders encountered the defendants;

Both defendants were in employment and the offences were not therefore committed out of necessity. 

Details of Mitigation:

Guilty plea; partially cooperative with police; previous good character.

Defence argued that although a custodial sentence was inevitable it should not exceed 2 years and submitted that it was wrong that no distinction was made between Pietrzyk and Lipski given the latter had previous convictions and had committed more offences.  It was submitted that Pietrzyk was the "junior partner" and had received few of the stolen goods. 

Previous Convictions:

None. 

Conclusions:

The Crown submitted the offences involving detached sheds and garages should be treated in the same way as commercial premises but that the count involving an attached garage should be treated the same way as an unoccupied dwelling house. 

First Indictment

Count 1:	18 months' imprisonment.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 7:	18 months' imprisonment, concurrent.
Count 8:	3½ years' imprisonment, concurrent.
Count 9:	18 months' imprisonment, concurrent.
Count 11	2½ years' imprisonment, concurrent.

Second Indictment

Count 1:

18 months' imprisonment, concurrent to First Indictment.

Total:  3½ years' imprisonment. 

Recommendation for deportation sought. 

Sentence and Observations of Court:

The Court reiterated that illegal entry or breaking and entering of a private dwelling is a very serious offence. 

Insufficient distinction had been made between the defendants, Pietrzyk has a slightly lower responsibility but the real difference was his lack of previous conviction.  Conclusions on Counts 8 and 11 reduced.  All other conclusions granted. 

First Indictment

Count 1:	18 months' imprisonment.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 7:	18 months' imprisonment, concurrent.
Count 8:	2½ years' imprisonment, concurrent.
Count 9:	18 months' imprisonment, concurrent.
Count 11	2 years' imprisonment, concurrent.

Second Indictment

Count 1:

18 months' imprisonment, concurrent to First Indictment.

Total:  2½ years' imprisonment. 

Recommendation for deportation made. 

Pawel Lipski

First Indictment

8 counts of:	Illegal entry and larceny (Counts 1, 4, 5, 7, 8, 9 10 and 11).
3 count of:	Breaking and entry and larceny (Counts 2, 3 and 6).

Age:  30.

Plea: Guilty.

Details of Offence:

See Pietrzyk above.

Details of Mitigation:

Guilty pleas; partially cooperative with police including being driven around the Havre des Pas area to identify which properties he had burgled. 

Defence submitted that the conclusions would have been right had it not been for the fact that Lipski had expedited the clearing up of a number of offences during his drive around Havre des Pas. 

Previous Convictions:

Two convictions in Poland for burglary offences. 

Conclusions:

The Crown submitted the offences involving detached sheds and garages should be treated in the same way as commercial premises but that the count involving an attached garage should be treated the same way as an unoccupied dwelling house. 

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 6:	18 months' imprisonment, concurrent.
Count 7	18 months' imprisonment, concurrent.
Count 8:	3½ years' imprisonment, concurrent.
Count 9:	18 months' imprisonment, concurrent.
Count 10:	2 years' imprisonment, concurrent.
Count 11:	2½ years' imprisonment, concurrent.

Total:  3½ years' imprisonment. 

Recommendation for deportation sought. 

Sentence and Observations of Court:

The Court reiterated that illegal entry or breaking and entering of a private dwelling is a very serious offence. 

The Crown's conclusions on Lipski would have been justified had it not been for his cooperation and the sentence on Count 8 would therefore be reduced.  All other conclusion granted. 

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 6:	18 months' imprisonment, concurrent.
Count 7	18 months' imprisonment, concurrent.
Count 8:	3 years' imprisonment, concurrent.
Count 9:	18 months' imprisonment, concurrent.
Count 10:	2 years' imprisonment, concurrent.
Count 11:	2½ years' imprisonment concurrent.

Total:  3 years' imprisonment. 

Recommendation for deportation made. 

R. C. P. Pedley, Esq., Crown Advocate.

Advocate J. C. Gollop for Pietrzyk.

Advocate C. M. Fogarty for Lipski.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Pietrzyk and Mr Lipski, you are here to be sentenced on Indictments involving illegal entry and larceny of goods over a four month period.  Goods having a value in excess of £5,000 have not been recovered.  Mr Lipski, you have eleven counts charged against you, and Mr Pietrzyk you have two Indictments and eight counts alleged against you.  Seven of the counts involve both of you as a joint enterprise, including the most important count which is Count 8, which involved the illegal entry into domestic premises at night. 

2.        This Court has said on many occasions that illegal entry or breaking into a private dwelling is a very serious offence.  In AG-v-Allo and Collins [1983] JJ 85 the Bailiff then said:-

"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 appreciated sufficiently by some Courts but certainly it is appreciated by this Court,... and we make it clear again today, the distress element, is an aggravating factor.

3.        The Court thinks that a custodial sentence is right in principle for both of you.  Mr Lipski, in your case we think the Crown's conclusions could well have been justified but perhaps inadequate credit has been given to you for your cooperation with the police, and for that reason we are going to reduce the conclusions to a total of 3 years' imprisonment. 

4.        Accordingly you are sentenced in accordance with the Crown's conclusions, except that in Count 8 you are sentenced to 3 years' imprisonment.  So on Count 1; 18 months' imprisonment, Count 2; 18 months, Count 3; 2 years', Count 4; 18 months, Count 5; 18 months, Count 6; 18 months, Count 7; 18 months, Count 8; 3 years, Count 9; 18 months, Count 10; 2 years, Count 11; 2½ years, to be served concurrently, making a total of 3 years' imprisonment. 

5.        You have not argued that there should not be a Deportation Order but the Court has considered deportation.  We think that both limbs of the test set out in the case of Camacho-v-AG [2007] JCA 145 are met; that is that your continued presence in Jersey is detrimental to the interests of the community and there is no reason under the European Convention on Human Rights in relation to the second part of the test why it would be disproportionate to make the recommendation and, accordingly, we recommend that at the end of your sentence you should be deported. 

6.        Mr Pietrzyk, in your case we have taken the view that the Crown has not made a sufficient distinction between you and Mr Lipski in two respects, one of which is less important than the other.  We have made an assessment on the information we have received that you have a slightly lower overall responsibility on the Indictments although, nonetheless, it was a joint enterprise and you must take responsibility with your co-accused in respect of seven of those counts.  We think the real distinction is in your lack of previous convictions and that we ought to reflect that in the sentence which is imposed. 

7.        Accordingly on the First Indictment you are sentenced to 18 months' imprisonment on Count 1, on Count 4, on Count 5, Count 7 and Count 9; you are sentenced to 2½ years' imprisonment on Count 8 and 2 years' imprisonment on Count 11, and on the Second Indictment you are sentenced to 18 months' imprisonment, all of those will be served concurrently, and so that makes a total of 2½ years' imprisonment. 

8.        We have also considered in your case the question of deportation and applied the same test as applied to Mr Lipski.  We have no doubt that your continued presence in the Island is detrimental to the community; we have considered the Convention rights of your two sons who are both adult, and your rights and those of the other members of your family.  We consider that they do not make it disproportionate to make a recommendation for deportation and the Court therefore makes that recommendation.  But we add that we have certainly noted your early guilty plea and the remorse and regret that you have expressed. 

9.        There is one last thing I wish to say in relation to both accused because the reference was made by counsel for Mr Pietrzyk to the case of AG-v-Da Silva [1997] JLR N 14A and [1997] JRC 218 and we would like to repeat what was said by the Bailiff in that case when he referred to two cases which had recently come before the Court of Appeal in England.  The first was the case of the R-v-Edwards and Brandy (1996) 140 Sol. Jo (L.B.) 135 where the Court reviewed a number of sentences for burglary of an occupied dwelling house each defendant featuring an appellant with a previous record for like offences, and concluded:-

"There is a limit to the weight that can be attached to previous decisions of this Court in the field of sentencing, but we think we can infer that the bracket centres upon two years".

I mention once again that this Court is always under-whelmed by references to particular sentences which have been imposed by the Court on other occasions because the balancing exercise between the facts which were relevant in that case, in relation to the offences and the particular pieces of mitigation which the Court then took into account, is almost impossible to deduce at a later stage on a subsequent case.  Obviously that comment does not go for the guideline cases and it nonetheless seems to us to be a relevant comment to make in relation to this case. 

10.      Mr Lipski, 3 years' imprisonment and Mr Pietrzyk 2½ years' imprisonment. 

Authorities

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

AG-v-Allo and Collins [1983] JJ 85.

Camacho-v-AG [2007] JCA 145.

AG-v-Da Silva [1997] JLR N 14A.

AG-v-Da Silva [1997] JRC 218.

European Convention on Human Rights 2000.

R-v-Edwards and Brandy (1996) 140 Sol. Jo (L.B.) 135.

AG-v-Gaffney 1995/101.