Jersey Unreported Judgments

Superior Number Sentencing - obtaining goods by false pretences - breaking and entry and larceny - affray.

[2014]JRC142C

Royal Court

(Samedi)

14 July 2014

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu, Nicolle, Milner, Liston and Blampied.

The Attorney General

-v-

Luke James Oeillet

Etienne Franklin Hampton

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 30^th May, 2014, following guilty pleas to the following charges:

Luke James Oeillet

First Indictment

6 counts of:	Obtaining goods by false pretences (Counts 1-6).
1 count of:	Breaking and entry and larceny (Count 7).

Second Indictment

1 count of:

Affray (Count 1).

Age:  32.

Plea: Guilty.

Details of Offence:

Indictment 1:

Counts 1 to 6 on the Indictment relate to unauthorised transactions in retail outlets on a debit card, between 14^th August and 25^th August, 2013, totalling £478.59.  The card was used during the same period of time on numerous other occasions.  The total loss was £4,727.15 but the Crown was unable to proceed on other transactions due to lack of evidence. 

The card holder was in hospital from 2^nd August, 2013, to 10^th October, 2013; he had not given permission for his card to be used and had not used his card whilst in hospital.  The debit card was used in the knowledge that the victim was vulnerable.  Oeillet was observed on three occasions attempting to enter the cardholder's flat.  Oeillet was identified via CCTV footage, which matched his presence in the different shops to the transactions on the debit card. 

Count 7 relates to a separate incident on 1^st March, 2014, when an unoccupied residential flat was broken and entered into.  Personal property was removed - an iPhone4; and iPhone 5; a pair of designer sun glasses and £400 coinage.  Oeillet was identified from analysis of fingerprint evidence from points of entry to the flat and on items inside the flat.  Analysis of a mobile seized from Oeillet provided details of a text from his phone offering a stolen phone for sale.  None of the stolen property was recovered. 

Indictment 2: Oeillet and Hampton

Factual basis provided by Hampton.  Agreed by Oeillet and accepted by Crown.  Factual basis was that in the early hours of 4^th March, 2014, Oeillet had gone armed with a hammer to Hampton's property and had issued threats whilst in the back garden.  Oeillet moved to the front of the house.  Hampton came out and defended himself.  There was an argument with the brandishing of hammers and aggressive posturing in the street by both individuals.  Having been provoked by Oeillet, Hampton escalated the affray by returning home and then confronting Oeillet with a machete with the intention of scaring Oeillet off.  Two members of the public witnessed the affray.  Both parties were equally culpable (Count 5).

Whilst being arrested for affray white powder was found at Hampton's home address and on his person.  They were analysed and found to contain Ethylphenidate, a Class B controlled drug.  The total quantity of drugs seized was 2.17g with a street value of between £80 to £100.  It was accepted that the drugs were for personal use (Counts 3 and 4). 

Details of Mitigation:

The Crown

Guilty pleas.  He was not particularly co-operative in interview and has not assisted police in recovering stolen property.  Oeillet provoked the affray.  Oeillet has an appalling criminal record particularly for similar offences.  At a high risk of re-conviction and a high risk of harm to general public.  Underlying problem of alcohol and drug abuse.  Unable or unwilling to address such issues. 

The Defence

Little if any mitigation could be offered.  Remorse.  Shock at the sentence.  References in support provided.  Accepted no alternative other than custody. 

Previous Convictions:

14 convictions for 90 offences including 5 previous offences for breaking and entering; and 44 offences for false pretence, aiding and abetting false pretences, obtaining property by deception and forgery.  In addition he has 5 offences for violence and possession of offensive weapons.

Conclusions:

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.
Count 3:	18 months' imprisonment, concurrent.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	18 months' imprisonment, concurrent.
Count 6:	18 months' concurrent.
Count 7:	2½ years' imprisonment, consecutive.

Total: 4 years' imprisonment.

Second Indictment

Count 1:

18 months' imprisonment, consecutive to the Second Indictment.

Total: 5½ years' imprisonment.

Forfeiture and destruction of weapons sought.

Sentence and Observations of Court:

Oeillet was to be sentenced for six counts of obtaining goods by false pretences from HSBC for approximately £4,700 in August 2013.  He was also to be sentenced for breaking and entering and larceny from a domestic premises where he stole personal property - an iPhone4; and iPhone 5; a pair of designer sun glasses and £400 coinage.  The Court noted Oeillet's criminal record and guilty pleas.  There was little to say in mitigation.  Oeillet was not co-operative in interview.  The Court was reminded what was said to Oeillet in 2011, when the Court then expressed hope that he would take the opportunities afforded to him to tackle his drink and drugs problems.  In relation to the First Indictment the Court had given careful consideration to the references provided, however it agreed that the Crown's Conclusions were correct. 

With respect to the affray and Oeillet's involvement the Court noted that a factual basis had been accepted.  Oeillet had provoked Hampton and that Hampton came out to defend himself, however his actions went beyond self-defence; hammers were brandished and Hampton went for a machete.  Witnesses described that both men were very aggressive and extremely angry.  Understandably the witnesses were nervous, one locked her car door and the taxi driver said that he had been frightened by what took place. 

Affray is an important and serious offence.  It does not always involve actual violence but, for members of the public to be put in fear 18 months imprisonment is the right sentence.  The offence was completely different to that of the offences on the First Indictment therefore the sentence is consecutive. 

The Court considered whether the total of 5 years six months' imprisonment was too high, however after much consideration concluded that it was not too high.  The Court noted that Oeillet's counsel said he had been shocked by the Crown's Conclusions.  The Court expressed a hope that this shock would be taken to heart as Oeillet's future looked bleak if not. 

First Indictment

Conclusions granted.

Second Indictment

Conclusions granted.

Etienne Franklin Hampton

Second Indictment

1 count of:	Affray (Count 1).
2 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 3 and 4).

Age:  26.

Plea: Guilty.

Details of Offence:

See Oeillet above.

Details of Mitigation:

The Crown

Guilty pleas.  He was not particularly co-operative in interview.  Provided factual basis for the affray.  Previous convictions for offences of a similar nature.  At moderate risk of re-offending.  He has taken a positive approach to addressing mental health issues which previously impacted his lifestyle. However non-attendance with Probation on two occasions whilst on bail and failure to attend a Police Interview for an alleged offence of theft whilst on bail were raised for the Court's attention. 

The Defence

Understood that his behaviour was unacceptable and apologised to the Court.  Hampton did not instigate the affray, he was provoked.  His response was not pre-meditated.  He suffers from bipolar disorder - a firm diagnosis was recently given. His actions were attributable to his mental health issues, a "manic relapse."  References in support were provided. 

Previous Convictions:

8 convictions for 17 offences.  Of relevance to the current offences he has a conviction for common assault and 3 convictions for offences of possession of controlled drugs. 

Conclusions:

Second Indictment

Count 1:	18 months' imprisonment.
Count 3:	1 month's imprisonment, consecutive.
Count 4:	1 month's imprisonment, concurrent to Count 3.

Total: 19 months' imprisonment.

Forfeiture and destruction of the weapons sought.

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

With respect to Hampton the Court re-stated that the affray had generated fear in members of the public; 18 months' imprisonment was right for this offence.  The Court considered the elements of provocation and also the difficulties arising from Hampton's mental health issues which would ordinarily reduce a sentence, however the machete which the Court had seen was a very serious and offensive weapon, therefore 18 months' imprisonment was correct. 

With respect to the counts relating to possession of controlled substances, Ethylphenidate is a Class B drug, and a 1 month sentence, consecutive to the sentence for affray was appropriate.  The Court spent time considering the psychiatric report and the positive steps taken by Hampton in relation to engaging with professionals and in taking medication.  The Court expressed a hope that Hampton would take full advantage of the facilities and medical care in prison so that Hampton would be able to control his problems in the future. 

Second Indictment

Conclusions granted.

S. M. Baker, Esq., Crown Advocate.

Advocate C. M. Fogarty for Oeillet.

Advocate J. W. R. Bell for Hampton.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Oeillet, you are charged with six counts on the First Indictment of obtaining goods by false pretences, to the prejudice of HSBC, in the sum of approximately £4,700 over three days in August 2013.  On the seventh count the charge is breaking and entering and larceny from domestic premises of an iPhone, a £50 note, some Aviator sunglasses and £400 in coinage. 

2.        The Court has looked carefully at your record and unfortunately noted that this is not the first time you have committed offences of that kind and we have noted that you have pleaded guilty and you are entitled to credit for that and as your counsel very properly said that is your principal piece of mitigation.  We have noted that you were not particularly cooperative on interview and I remind you what has been said to you in the past that breaking and entering into domestic premises is always treated seriously by this Court.  Indeed when you were last before this Court on this type of offence in February 2011 the Bailiff said this to you:-

"...you are before the Court for a number of offences of dishonesty...The most serious dishonesty offence is the breaking and entering of a house at night which was occupied by an elderly man living alone.  The Court has repeatedly said that burglary of residential houses, particularly at night, is to be treated seriously, not least because of the feelings of fear and insecurity which such offences can cause in those whose lives are disturbed in that way."

The Court then expressed the hope that you would take the opportunities afforded to you by your time in prison to tackle the drink and drug problems that you had in order that you might turn your life around. 

3.        The Crown concludes that 18 months' imprisonment on Counts 1-6 and 2 years 6 months imprisonment, consecutive on Count 7 making a total of 4 years' imprisonment on that First Indictment is the appropriate sentence.  And although it has considered carefully the references and the matters which have been raised in the background reports and by your counsel, the Court considers those conclusions are right.  You are therefore sentenced on the First Indictment to 18 months' imprisonment on each of the first six counts to run concurrently and 2 years 6 months on Count 7 to run consecutively.

4.        We then have to look at first count on the Second Indictment of affray.  The agreed factual basis which has been put before us for that purpose is this that you had gone into Hampton's back garden and had issued threats, in other words there was provocation; that you moved to the front of the house, that Hampton came out and felt that he had to defend himself, that he went beyond lawful self-defence and so he was guilty of the offence of affray as well.  There was an argument with the brandishing of hammers and it was after that took place that Hampton went off to collect his machete.  The evidence put before us in the shape of the witness statements provided to the police describes both you and Hampton as being very aggressive, looking extremely angry, brandishing the weapons at each other and the witness said she felt very nervous, concerned for her wellbeing and therefore locked her cars doors as she approached the two men in her car.  A taxi driver similarly said that he was frightened by what was taking place when he was asked for a lift, we think by you. 

5.        The offence of affray is a serious offence, not always just for the violence which it involves, but for the fact that it puts members of the public at fear and 18 months' imprisonment is the right sentence in our view on this particular charge.  It is a completely different offence from the other ones and therefore it also calls for a consecutive sentence and one of the reasons we have been such a long time considering the sentence is that we have been giving careful thought as to whether the total that is therefore involved, of 5 years and 6 months' imprisonment, is too high and whether it should be reduced on the grounds of totality.  After much consideration we think it should not and accordingly you are sentenced to 18 months' imprisonment on Count 1 of the Second Indictment which runs consecutively to the sentences on the First Indictment, making a total of 5 years 6 months' imprisonment.

6.        Your counsel says that you are shocked by the conclusions.  In the light of what was said by the Court on the last occasions we really hope that you take that shock to heart and as the Bailiff said on the last occasion the future will look very bleak if you do not do so.  Nobody else can tackle this except you and so you are sentenced accordingly. 

7.        Mr Hampton, I have already described the agreed factual basis of the affray for which you are to be sentenced as well and as I have already explained to your co-accused that the offence of affray is serious because of the fear which is generated in members of the public.  The Court's view is that 18 months' imprisonment is right in connection with you as well.  We have considered whether or not the provocation that you were subjected to from Mr Oeillet makes a difference and that we should distinguish between you whether or not Dr Harrison's report makes a difference both of those would perhaps suggest that there should be a different or a reduced sentence for you but on the other hand the machete the Court has seen is a very serious, offensive weapon and it is clearly not an ornamental weapon, it is a serious weapon and we are not surprised that members of the public were so frightened by what they saw and in those circumstances you are sentenced to 18 months' imprisonment on Count 1 of the Second Indictment. 

8.        You are also here to be sentenced for possession of Ethylphenidate which is a category B drug.  It was a personal amount, 644 milligrams of white powder in your shoe, and two other small packets found in your premises and the Crown's conclusions are considered to be correct and you are sentenced to 1 month's imprisonment consecutive in relation to the possession of those drugs. 

9.        In your case the Court has spent a considerable amount of time considering Dr Harrison's report.  It is good that you now have a firm diagnosis which can lead to medication being prescribed for you in the future.  You will have the opportunity of having that medication of course in the prison and you should take advantage of all the medical facilities which are available to you in the prison; it does not have the impact on your sentence for the reasons that we have given but the Court very much hopes that you will take advantage of the medical facilities and hopefully the result will be that you will be able to control these sorts of problems in the future and not react as you have on this occasion. 

10.      You are sentenced to a total of 19 months' imprisonment. 

11.      We order the forfeiture and destruction of the machete and the hammers.

12.      We order the forfeiture and destruction of the drugs.

Authorities

AG v Da Silva [1997] JLR N 14a.

AG v Y [2011] JRC 032B.

Whelan on Aspects of Sentencing in the Superior Court of Jersey 3rd Edition.