Jersey Unreported Judgments

Inferior Number Sentencing - illegal entry and larceny - malicious damage - fouling the road with urine.

[2014]JRC045

Royal Court

(Samedi)

21 February 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Kerley and Milner.

The Attorney General

-v-

Paula Kauss

Zoe Leonora Furlong

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

Paula Kauss

1 count of:	Illegal entry and larceny (Count 1).
2 counts of:	Malicious damage (Counts 2 and 3).
1 count of:	Fouling the road with urine, contrary to Article 2(1)(m) of the Policing of Roads (Jersey) Regulations 1959 (Count 4).

Age:  31.

Plea: Guilty.

Details of Offence:

Kauss and Furlong went to the home of Colin Harris to confront him over a one-night stand he had had.  He was not home, but both of his housemates were.  They then entered the house through an open window.  Once inside they stole food from the kitchen belonging to the housemates.  They also maliciously damaged Mr Harris' belongings, using a knife to slash most of his clothes and his bedding.  They then rubbed left-over takeaway food into his bed.  They also slashed a leather sofa in the communal living room, which belonged to the landlord. 

On leaving the house, Kauss urinated in front of a private garage, which was caught on CCTV. 

Kauss was arrested and interviewed.  She denied the offence and implicated Mr Harris' girlfriend.  She claimed to have been asleep at Furlong's flat at the time of the offences. 

In the second set of interviews, Kauss initially maintained her denial but later admitted the offences.   Furlong denied the offences and maintained that she could not remember going to the house. 

Details of Mitigation:

Guilty pleas, partially cooperative with the police, low risk of reconviction, genuine remorse and regret, mother of a young child who would go into care should she receive a custodial sentence, difficult background.

The Court indicated that they intended to impose non-custodial sentences and that they were minded to reduce the sentences on Count 1 to the equivalent of 18 months' imprisonment.  Defence counsel accordingly limited their submissions to the matter of compensation. 

Previous Convictions:

Two previous convictions. 

Conclusions:

The Crown submitted that the hardship suffered by Kauss' daughter would be exceptional and therefore proposed to move for a non-custodial sentence on that ground alone.  On balance it would be unjust to impose a custodial sentence on Furlong in these circumstances despite the fact that there was no exceptional hardship. 

Count 1:	456 hours' Community Service Order, equivalent to 3 years' imprisonment.
Count 2:	90 hours' Community Service Order, equivalent to 3 months' imprisonment, concurrent.
Count 3:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, concurrent.
Count 4:	No separate penalty.

Total: 456 hours' Community Service Order, equivalent to 3 years' imprisonment.

Compensation Order sought in the sum of £1,444.50 or 3 months' imprisonment in default.

Sentence and Observations of Court:

Count 1:	240 hours' Community Service Order, equivalent to 18 months' imprisonment.
Count 2:	90 hours' Community Service Order, equivalent to 3 months' imprisonment, concurrent.
Count 3:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, concurrent.
Count 4:	No separate penalty.

Total: 240 hours' Community Service Order, equivalent to 18 months' imprisonment. 

Compensation Order made in the sum of £1,444.50 and 18 months in which to pay or 3 months' imprisonment in default.

Zoe Leonora Furlong

1 count of:	Illegal entry and larceny (Count 1).
2 counts of:	Malicious damage (Counts 2 and 3).

Age:  27.

Plea: Guilty.

Details of Offence:

See Kauss above.

Details of Mitigation:

Guilty pleas, moderate risk of reconviction, genuine remorse and regret, mother of a young child, difficult background. 

The Court indicated that they intended to impose non-custodial sentences and that they were minded to reduce the sentences on Count 1 to the equivalent of 18 months' imprisonment.  Defence counsel accordingly limited their submissions to the matter of compensation. 

Previous Convictions:

Four convictions including receiving stolen goods and malicious damage.

Conclusions:

The Crown submitted that the hardship suffered by Kauss' daughter would be exceptional and therefore proposed to move for a non-custodial sentence on that ground alone.  On balance it would be unjust to impose a custodial sentence on Furlong in these circumstances despite the fact that there was no exceptional hardship. 

Count 1:	456 hours' Community Service Order, equivalent to 3 years' imprisonment, together with a 12 month Probation Order.
Count 2:	90 hours' Community Service Order, equivalent to 3 months' imprisonment, concurrent.
Count 3:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, concurrent.

Total: 456 hours' Community Service Order, equivalent to 3 years' imprisonment, together with a 12 month Probation Order.

Compensation Order sought in the sum of £1,444.50 or 3 months' imprisonment in default.

Sentence and Observations of Court:

Count 1:	240 hours' Community Service Order, equivalent to 18 months' imprisonment, together with a 12 month Probation Order.
Count 2:	90 hours' Community Service order, equivalent to 3 months' imprisonment, concurrent.
Count 3:	70 hours' Community Service Order, equivalent to 2 months' imprisonment, concurrent.

Total: 240 hours' Community Service Order, equivalent to 18 months' imprisonment, together with a 12 month Probation Order. 

Compensation Order made in the sum of £1,444.50 and 18 months in which to pay or 3 months' imprisonment in default.

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

Advocate S. A. Pearmain for Kauss.

Advocate J. W. R. Bell for Furlong.

JUDGMENT

THE BAILIFF:

1.        After a night out, when you had both been drinking, you went to the home of the man, who we shall call the victim, with whom you Kauss, had recently had a one-night stand.  You got in through an open window.  But once there, when you found he was not there, you cut up some of his clothing, you emptied food over his bed, you cut the strings on his guitar and you damaged some other items.  A sofa belonging to the landlord was also damaged and you took some food from the kitchen, which in fact turned out to belong to the lodgers.  The total damage to the victim's possessions is put at £1,954, to the landlord's sofa at £880 and to the theft of the lodger's food at £55.  Such an offence, namely entry at night into a residential property usually attracts a substantial prison sentence. 

2.        Kauss, you were not straightforward at the start of the interview process but you did then admit what you had done and you have now pleaded guilty.  We have noted the difficulties in your background and the minor previous offences.  We have taken particular note of your good work record and the fact that you have helped with charitable activities, which is very much in your favour, and you are assessed as being at low risk of reoffending.  Furthermore, you have the sole care of your 5 year old daughter and if we were to impose a prison sentence she would probably have to go into care. 

3.        Furlong, you were thoroughly uncooperative at interview but you have pleaded guilty.  You too have very minor previous convictions and we have read the reports about your background and your situation which recommend probation and you, too, have the care of young son, although the child's father helps look after him. 

4.        We have to say this is a most unpleasant offence.  The gratuitous vandalism was very mean and no doubt caused distress to the various victims.  Furthermore, it was entry into a house at night.  However, we have been persuaded that the Crown's conclusions that, unusually in this case, a non-custodial sentence is appropriate, are correct; so we do not see the need to send you to prison.  Furthermore the Crown has moved on the basis that the correct prison sentence for this offence would be 3 years.  We have to say that on the unusual facts of this case we think that is far too high.  We fully endorse the Crown's suggestion that normally someone who chooses to break into a house at night in order to try and steal will face sentences of that sort of length.  But this was a very different offence; you were going, in fact, to try and see this man; when you found he was not there you just gained access through an open window and then your drink and emotions took over and you committed this damage and theft.  In all the circumstances we think the correct sentence in this case would have been one of 18 months' imprisonment.  

5.        Kauss, the sentence in your case is on Count 1; 240 hours' Community Service, which we say is the equivalent to 18 months' imprisonment, Count 2; 90 hours', Count 3; 70 hours', all concurrent, Count 4; no separate penalty.  The total sentence in your case is 240 hours' Community Service.

6.        Furlong, in your case we are going to pass the same sentences of Community Service but in addition, on Count 1, we are going to impose a 12 month Probation Order because that is recommended and that is intended to assist you.  So we are going to impose a 12 month Probation Order on that. 

7.        Let me just make it clear.  If either of you reoffend or if you do not turn up for the community service or do not work properly when you are there, or Ms Furlong, if you do not turn up to probation and do exactly what you are told by them, then you can be brought back here and resentenced for these offences and at that stage you clearly would be at risk of going to prison.  So you must do exactly what you are required to do both with the Community Service Order and the Probation Order and you must, of course, not reoffend. 

8.        That leaves the question of compensation.  As we say, this was a mean offence and we see no reason why you should not reimburse the victims for the damage that you have caused and, to your credit, you have both accepted, through your counsel, that that is reasonable.  Therefore we are going to make an order against each of you in identical terms, totalling £1,444.  It is £977 for Mr Harris, £27.50 for Mr Bundu-Kamara, and £440 for Mr Vautier, that is each of you.  So you each owe £1,440.  The difficult decision for us has been how long to give you because we are going to impose, as we must, a prison sentence if you do not pay those amounts in time and the prison sentence will be 3 months' imprisonment.  You Miss Kauss at the moment have a limited income but you are hoping to obtain a full time job in mid-March.  We are going to assume that you can find a full time job, if not this one, some other one.  What we are going to do is give you 18 months in which to pay this sum.  If you were paying at £30 per week as your advocate has suggested, once you get full employment, then it will take you about a year to pay off this sum; so we are giving you more than a year to allow for the need to get the job and for that fact that it may not continue throughout next winter.  So we are making the order on that basis to give you some leeway but to make sure that this sum is repaid in the foreseeable future.  In your case Miss Furlong, we do not have the promise of a full-time job but we have to say that we see no reason why you should not get one now that this is over and you are not going to prison.  So we are going to make this order on the assumption that you can, in the reasonably near future, get a job which will pay the same sort of amount as the job which Miss Kauss is going to get and if that is right, then we see no reason why you should not be able to pay this in 18 months. 

9.        What we say on that is two things.  First of all, with the guidance of your advocates, you must agree with the Viscount a weekly sum.  It is no good leaving this until the end and trying to save it up.  You should pay a weekly sum to the Viscount which can be increased when you get a full-time job.  If it turns out that the assumptions we have made are wrong because, despite your best efforts, you cannot earn the sort of money we have assumed, then you do have the right to come back to Court and try and get a longer period.  Do not leave it until you are in arrears because then the Viscount will bring it back to us and we will be asked to impose the prison sentence because you have breached the order.  If you are encountering difficulties, see your advocate, go and speak to the Viscount, and then an application can be made to give you more time but that will only be so if you prove that you have really tried to get jobs and have failed. 

10.      On that basis we are going to give each of you 18 months to pay the Compensation Order with 3 months' imprisonment in default. 

Authorities

AG v da Silva 1998/218.

Fowler v AG [2007] JRC 044.