Jersey Unreported Judgments

Inferior Number Sentencing - illegal entry and larceny.

[2014]JRC030

Royal Court

(Samedi)

31 January 2014

The Attorney General

-v-

Manuel Gregorio Baiao

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

Age:  52.

Plea: Guilty.

Details of Offence:

Between May 2011 and May 2013 Baiao illegally entered four properties in the area of Mont Cochon, Landscape Grove and Les Champs Park Estate.  Two of the offences involve the entry of unoccupied dwelling houses at night.  The remaining offences involved a pool house and a detached garage (two offences in relation to the same property).  Baiao stole items of comparatively low value, including perfume, cushions and champagne flutes. 

Baiao was financially secure and the reports concluded that the offences were not financially motivated and that Baiao committed them for the thrill. 

Details of Mitigation:

The Crown

Guilty plea, assessed by Probation as low risk of reoffending (but caution advised due to the unusual nature of the offence), very good references and confirmation of ongoing employment and accommodation. 

The Defence

Unusual case justifying an exceptional non-custodial sentence, shame and remorse, taking measures to respond to concerns highlighted in reports, brief period on remand had had a salutary effect.  Regarding deportation: nearly 25 years of largely law-abiding life in Jersey, deportation would be disproportionate. 

Previous Convictions:

Three, but none relevant.

Conclusions:

The Crown submitted that the offences involving domestic sheds and garages should attract a focal point of 18 months (in line with commercial premises).

Total: 2 years' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Court decided, by a majority, that the case was sufficiently unusual to justify a non-custodial sentence.

Total: 312 hours' Community Service Order, equivalent to 18 months' imprisonment, plus an 18 month Probation Order.

Condition of probation to engage with psychological services and comply with other treatment recommended by Probation.

No recommendation for deportation made.

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

Advocate R. S. Tremoceiro for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant, who is 52, stands to be sentenced for five counts of illegal entry and larceny in respect of five properties which took place over a 2 year period.  The items taken were of low value and the case is unusual as it would seem, from the psychological report, that the motivation for these entries was the psychological thrill that the defendant obtained rather than material gain.  Items were taken from a pool-house and a garage and in two of the cases, the houses themselves. 

2.        The defendant came to Jersey about 25 years ago and for some 15 years he and his wife have been employed by the same family in Jersey, who think very highly of both of them, and where their continued employment is secure.  The defendant, therefore, has a very good work record and a strong personal work ethic.  He and his wife, who have no children, are financially comfortable and they own a house in Portugal. 

3.        AG-v-Da Silva 1997/218 suggests a focal point of 2 years' imprisonment following a guilty plea for breaking and entry into an unoccupied dwelling house.  There are no guidelines for offences relating to sheds, pool-houses, and other such outbuildings but the Crown suggest 18 months following the approach taken for commercial properties and the approach taken by the Court in AG-v-Pietrzyk and Lipski [2011] JRC 200.  As the Crown says, even though the value of the goods taken was low the gravamen of the offence lies in the invasion of a person's private property.  Low value merely constitutes an absence of an aggravating factor. 

4.        The defendant has been assessed by the Probation Department at a low risk of reconviction, although it needs to be said that Dr Emsley has said in her report that she was concerned about his invasion into private dwellings, particularly when he was adamant that the purpose was not primarily material or financial.  She recommends that he "undertakes work with a psychologist to explore the relationship between his private life and his offending behaviour".  She judged that unless he undertook that therapy he would remain at risk of reoffending. 

5.        The Crown seek a sentence of 2 years for the offences involving dwellings and 18 months for those involving outhouses to run concurrently; therefore a total of 2 years. 

6.        In terms of mitigation we have listened carefully to everything put forward by Advocate Tremociero.  The defendant has pleaded guilty and was cooperative ultimately with the police.  He has a very historical and limited record but none for dishonesty.  He was held in custody for some 12 days, something which clearly had a dramatic effect upon him, and it is clear from the advice we have received that he has shown genuine shame and remorse.  We have received powerful references from the family that employ him and his wife and he has the continued support of his wife who is in Court today. 

7.        The Court has given very careful consideration to this case and, whilst normally such offences would warrant a sentence of imprisonment, the Court, by a majority, has concluded that the facts here are sufficiently unusual to warrant a community punishment.  We are therefore not going to send the defendant to prison but are going to impose a sentence of community service which is equivalent to a sentence of imprisonment of 2 years, namely a total of 312 hours. 

8.        Turning to the individual counts: on Count 1 you are sentenced to 240 hours' Community Service, on Count 2; 312 hours' Community Service, on Count 3; 312 hours' Community Service, on Count 4; 240 hours' Community Service, on Count 5; 240 hours' Community Service, each of those to be concurrent so the total will be 312 hours' Community Service, which is equivalent to a total sentence of imprisonment of 2 years and we give the defendant 2 years to complete that Community Service.  In addition, on each of the counts we impose, concurrently, a sentence of Probation for 18 months on condition that the defendant engages with the psychological services and complies with such other treatment or courses as the Probation Department may recommend. 

9.        Turning now to deportation, the defendant is not a British citizen, he is a Portuguese national, and the Crown move for recommendation that he be deported.  The test to be applied is that set out in the case of Camacho-v-AG [2007] JLR 462.  Namely, the first question is whether the defendant's continued presence in the Island is detrimental to the Island and, if so, whether the effect of his deportation on the family rights of himself and other members of his family are affected.  The Crown submits that his continued presence is detrimental and, whilst acknowledging that he has spent most of his adult life here, he has no close family here apart from his wife.  They have no children but do have family and a home in Portugal with significant savings.  Any hardship suffered by the defendant, the Crown say, is outweighed by his behaviour and the need to prevent further detriment to the Island. 

10.      However, having decided by a majority that the defendant should remain within the community, it follows, in our view, that we cannot conclude that his continued presence in the Island or in the community is detrimental to the Island and we are therefore not going to recommend his deportation. 

Authorities

AG-v-Da Silva 1997/218.

AG-v-Pietrzyk and Lipski [2011] JRC 200.

Camacho-v-AG [2007] JLR 462.

AG-v-Power [2011] JRC 065.

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