Jersey Unreported Judgments

Inferior Number Sentencing - attempted breaking and entry with intent - breach of orders by non-compliance.

[2012]JRC138

Royal Court

(Samedi)

13 July 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Olsen.

The Attorney General

-v-

Keligh Jerard Botting

Sentencing by the Inferior Number of the Royal Court, following a breach of Orders and a guilty plea to the following charges:

First Indictment

1 count of:

Attempted breaking and entry with intent (Count 1).

Previous Indictment

1 count of:	Assault (Count 1).
1 count of:	Grave and criminal assault (Count 4).
1 count of:	Violently resisting a police officer in the execution of his duty (Count 5).

Age:  20.

Plea: Guilty

Details of Offence:

In the early hours of 12^th February, 2012, the defendant and an unidentified accomplice attempted to break into a beach concession cabin situated on La Charriére slipway, St Clement.  In an attempt to avoid detection the defendant's accomplice used an implement to smash the CCTV cameras.  The two men then attempted to gain entry by unsuccessfully forcing a serving hatch which they left wedged partially open with a rock.  Staff attended later that day and found the damage which was reported to the police.  The CCTV was checked; the defendant was identified and subsequently arrested.  In interview the defendant admitted attempting to break into the cabin in order to steal food but refused to name his accomplice. 

Breach Offences

On 15^th December, 2011, the defendant had been sentenced by the Royal Court for:-

 

Previous Indictment

Count 1          Assault; 12 month Probation Order and 40 hours' Community Service Order or 1 week's youth detention in default.

Count 4          Grave and criminal assault; 12 month Probation Order and 180 hours' Community Service Order or 12 months' youth detention in default.

Count 5          Resisting arrest; 12 month Probation Order and 40 hours' Community Service Order or 1 week's youth detention in default.

The circumstances of the offending was as follows:-

Count 1: common assault:-

On 30^th July, 2011, the defendant, who was drunk, was in St Helier accompanied by friends, they were loitering in the road stopping traffic.  A car stopped at the traffic lights and the driver appeared to be getting out.  The defendant then ran over and punched the driver twice in the face causing abrasions and bruising. 

Count 4: Grave and criminal assault:-

On the evening of 15^th August, 2011, the victim, a 20 year old man, who suffers from autism and learning disabilities which cause him to function at a much younger level, was socialising with friends in St Andrews Park.  The defendant was with a different group of friends in the park.  The defendant had known the victim since childhood and was aware of his disabilities.  The defendant, erroneously believing that the victim had been responsible for an assault on a female, approached him and punched him in the face knocking him to the floor; he then punched him a further seven times whilst he was trying to get up.  During this assault the victim sustained a broken nose, cuts to his face that required glueing and possible damage to his hearing. 

Count 5: Resisting arrest:-

Following the assault the defendant left the park.  He was located by the police at First Tower and was arrested, he resisted arrest and it required three police officers to overpower him and place him in restraints.

In addition to breaching the Court Orders by re-offending the defendant was due to be brought back before the Court for breaching the Orders by non-compliance.  The defendant had attended an initial meeting and thereafter had failed to attend any appointments in relation to either order. 

Details of Mitigation:

Guilty plea; youth; difficult family background as detailed in the social enquiry report. 

Aggravating factors:-

The attempted break and entry was committed whilst the defendant  was subject to Probation and Community Service Orders. 

Previous Convictions:

18 previous convictions for inter alia common assault, grave and criminal assault, resisting arrest, larceny, malicious damage and motoring offences plus 3  convictions for breaching Court Orders.

Conclusions:

The Crown had regard to the nature of the offending, the mitigation available to the defendant and the content of the social enquiry report and moved:-

First Indictment

Count 1:

8 months' youth detention.

Previous Indictment from 15^th December, 2011.

Count 1:	1 week's youth detention, concurrent to the First Indictment.
Count 4:	12 months' youth detention, concurrent but consecutive to the First Indictment.
Count 5:	1 week's youth detention, concurrent.

Total: 20 months' youth detention.

Sentence and Observations of Court:

In December last year (Breach Offences) the defendant had come within a whisker of a custodial sentence.  The Court had given the defendant a chance when handing down sentences community service and probation.  The Court noted the defendant's non-compliance with the orders.

The Court had regard to the defendant's guilty plea, his background and youth; however the Court was satisfied that the defendant had a history of non-compliance with non-custodial sentences and was satisfied that a sentence of youth detention was appropriate.  The Crown's conclusions were correct and the Court therefore sentenced:-

Conclusions granted.

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        In December last year I told you that for those offences you came within a whisker of youth detention.  You were before the Court for a common assault, a grave and criminal assault and violently resisting arrest.  I said this:-

"Mr Botting you are to be sentenced for an unprovoked attack on a Portuguese man whom you punched through the window of a car as he was driving.  There is an element, although you deny it, of racism in the assault, which makes it more serious.  The offence could have had really bad results; the victim was driving, he could have lost control of the car and it could have seriously injured somebody.  The second offence was more serious, a grave and criminal assault is a very serious criminal offence.  You set on a man whom you knew to be a vulnerable man, and for no good reason you punched him several times, breaking his nose and causing him other injuries.  You have had read to you the personal victim impact statement which has been made by your victim's foster carer and so you know what a bad effect this assault has had on him.

Now the Court" I told you then "has said many times that mindless drink-fuelled violence will normally result in a custodial sentence and we have been out for such a long time considering what is the right sentence for you both because that is the Court's usual policy.  We have had to take into account the fact that you are aged 19 and therefore we are required to be satisfied that there is no other way of sentencing you before we impose a custodial sentence.  And you have both heard what I have said to your counsel as the speeches were being made in your favour.

Mr Botting, I think the Court knows that you have had a bad time of things in your life so far.  We know that you have not yet had a chance to get help from the probation service with a Probation Order and we are going to give you that chance.  We are going to give it to you because you have a choice in your life; you can either carry on committing offences and things will get worse and worse and you will spend longer and longer in prison.  And so what you need to do is take advantage of what the probation service have to offer you, because if you do not do so the system is always going to win, the system will always beat you and it is you who suffers most.  It is your choice."

2.        That is what I said to you in December last year.  What has happened?  You did not report for community service on the 9^th or 16^th January.  You failed to attend either compliance meetings with them.  You have not attended four meetings notified to you by the probation service, and you committed this offence of attempted breaking and entering on 15^th February. 

3.        We have noted your guilty plea and your background and of course your youth.  You fall today to be sentenced for not only the offence to which you have pleaded guilty but also the offences for which you were given community service last December.  We are satisfied that you have a history of failure to respond to non-custodial penalties and you are unable or unwilling to respond to them and so the sentence today is going to be one of youth detention.

4.        Your counsel says in relation to the more recent offence of attempted breaking and entry that you played a lesser part than your accomplice but the fact remains that where an offence is committed with another person you are both guilty of that offence and there is no doubt about your guilt here.  It may not have been a sophisticated offence but it is aggravated by the fact that it is committed at a time when you were on probation and you should have been performing your community service.  We have noted that you made admissions early on. 

5.        In our judgment the sentences which the Crown has moved for are absolutely right and the conclusion are granted.  We have had regard to the psychological report presented to us this morning.  I say this because you will appreciate that the Court has obviously had the opportunity of forming a preliminary view on the papers that were prepared and given to us in advance but nothing we have heard from your counsel today affected our preliminary view and therefore we consider that the conclusions were right and should be granted. 

6.        Accordingly, you are sentenced on the previous Indictment to 1 week's youth detention for the assault on the Portuguese gentleman, 12 months' youth detention for grave and criminal assault and 1 week's youth detention for resisting arrest; although there would have been a case for each of those to run consecutively we nonetheless are going to order that on totality grounds they should run concurrently and indeed that was what was envisaged in December last year.  On the Indictment which is now before us, attempted breaking and entry with intent, we sentence you to 8 months' youth detention consecutive, making a total of 20 months' youth detention. 

7.        Mr Botting, your counsel has said to us that you lost all sense of purpose.  When you are in youth detention you have the opportunity of learning skills and going on the courses that will help you in the future and I repeat what I said to you last December.  At the end of the day, it is your choice as to whether you spend your time in custody or you spend your time as a free man.  Take advantage of those courses that are there in the youth detention centre and I hope that you will reflect on what has happened to you so far and you will see that the choices are for you to make and that you should use it constructively because there is a purpose in life if you do. 

Authorities

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

AG-v-Botting and Vincent [2011] JRC 236A.

AG-v-Gaffney 1995/101.