Jersey Unreported Judgments

Inferior Number Sentencing - breaking and entry and malicious damage - malicious damage.

[2015]JRC156

Royal Court

(Samedi)

16 July 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Liston and Ramsden

The Attorney General

-v-

Luke Clint Cox

Zac Gee Hannaford

Adam Hawkins

Saeed Hussain Malik Qari

Dinarte Viveiros

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

Luke Clint Cox

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

Age:  28 but 27 at time of offending.

Plea: Guilty.

Details of Offence:

Cox purchased what he thought was Valium for £90 from an individual.  It turned out that the tablets were not what he thought and he was therefore angry and wanted the return of his monies.  He tried to contact the supplier of the drugs via the supplier's brother.  The brother refused to give out his brother's telephone number.  Via his girlfriend, Cox involved Hannaford who was the girlfriend's cousin and then through Hannaford the other three defendants became involved. 

They all attended in the early hours of the morning at the brother's address.  This was a property owned by the Shelter Trust to house vulnerable and insecure individuals prior to them once again living independently. 

Cox kicked open the front door damaging the dead-lock.  Cox and Qari then entered and examined the internal post boxes.  They exited the property.  Cox returned wearing the same jacket but with a tee-shirt over his head and face and armed with a large hammer which he then used to smash a CCTV camera to the value £200.92.  Unbeknown to him there was a second camera which recorded this and then recorded Cox opening the front door for all of the other four defendants to enter.  One of the post boxes was damaged using the hammer and all of the defendants were seen in the vicinity of the post boxes with some of them tampering with them.  The defendants all exited the premises. 

Opposite the property was a car park and Cox, in the mistaken belief that a moped belonged to the brother, used the hammer to cause malicious damage to the value of £250. 

Three of the defendants were identified from the CCTV footage.  They were arrested and the other two defendants attended at the police station voluntarily.  The hammer was recovered from Cox's girlfriend's flat. 

The Crown had regard to guideline case of AG v Silva in relation to the breaking and entry Count. 

Breach offences re Cox

On 7^th November, 2014, he had been sentenced by the Magistrate's Court in relation to three motoring offences and a separate offence of receiving stolen goods.  The sentence imposed was Probation and Community Service Orders and a suspended sentence.  However, before the Royal Court upon consideration of Article 2(3)(a) of the Criminal Justice (Suspension of Prison Sentence) (Jersey) Law 2003 it was held that the suspended sentence aspect of the Magistrate's Court sentence was unlawful and accordingly the Royal Court would not activate an unlawful sentence.

Details of Mitigation:

The Crown

Guilty plea.  Appalling criminal record including 22 offences for breaking and entry/illegal entry and 12 offences for malicious damage.  Background reports revealed disturbing upbringing and other personal mitigation.  High risk for further offending.  Risk of harm to occupants' properties and risk of harm to himself.  The Court had given previous warnings as to the consequences of his continuing offending.  The Crown had given credit for the number of hours of Community Service successfully completed prior to breach of Order. 

The Defence

Guilty plea.  New matters revealed in the psychological report not previously before the Court which offered some explanation for his appalling record.  Slowly maturing and slowly improving his attitude towards authority.  Now accepting assistance to confront underlying problems.  Making progress after last prison sentence.  Following death of his grandmother to whom he was close (only relative whom he was close to) there was a deterioration in his mental state and he returned to his drug use.  He attended the property in the mistaken belief that it was the supplier's address.  He claimed to have found hammer in car.  Spur of the moment decision to use the hammer.  Unaware that the property was part of the Shelter Trust.  Expressed remorse as he had previously been described as a vulnerable individual.  Using time in prison constructively.  Was not a lost cause but making slow progress which in reality was a great leap forward.  Accepted custodial sentence inevitable. 

Previous Convictions:

23 convictions for 136 offences including 22 previous for breaking and entry/illegal entry, 12 for malicious damage, possession of controlled drugs, receiving stolen goods, hoax phone calls, motoring offences. 

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	3 months' imprisonment, concurrent.

Breach of Community Service Order and Probation Order imposed by the Magistrate's Court: 5 months and 5 days' imprisonment, consecutive to Counts 1 2 and 3 of the Indictment.

Suspended sentence of 5 months to be activated, consecutive to the default sentence of 5 months and 5 days' for the breach of orders and consecutive to all other counts of the Indictment

Total: 28 months' and 5 days' imprisonment.

Community Service Order and Probation Order to be discharged.

Driving disqualification for 5 years imposed by the Magistrate's Court to remain in place and once completed the defendant required to pass the appropriate driving test.

Forfeiture and destruction of the hammer sought.

Sentence and Observations of Court:

Cox had been defrauded of £90 for Valium tablets which were not in fact Valium.  He had led the group of the four accused and broke into the Shelter at an address supplied to him.  He had kicked in the door and used a hammer to damage the post boxes.  He also smashed the CCTV camera.  The remaining defendants had followed Cox into the building and interfered with the post boxes.  Cox in frustration had then damaged the moped.  He had a terrible record.  He had many convictions for breaking and entry.  He was in breach of the Probation Order and Community Service Order and the suspended sentence imposed by the Magistrate's Court in 2014.  The Court had listened carefully to the eloquent mitigation put forward by defence counsel.  He admitted a change in his approach.  Previously on a path of self-destruction and found it difficult to accept help.  Cox now determined to be the father that he wished he had had.  The Court commended him for those positive steps.  If he had not taken those steps then the Court sentence would have been higher. 

No alternative given his record other than for a prison sentence. 

The Court took very seriously the offence of breaking into residential property at night.  The Court cited the case of AG v Da Silva.  The Court felt that 18 months was too little for the offence and therefore gave a sentence of 21 months for the breaking and entry.  Had taken into account Cox's record and previous convictions.  He had breached the Probation Order and Community Service Order and therefore the Court was going to impose a 5 month sentence concurrent for each of the original offences but consecutive to the 21 months. 

The Crown had sought to activate the suspended sentence but the Court considered the suspended sentence had been made unlawfully in accordance with Article 2(3)(a) of the 2013 Law.  On that basis, the Court did not impose an additional sentence. 

Count 1:	21 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	3 months' imprisonment, concurrent.

Breach of Community Service Order and Probation Order imposed by the Magistrate's Court: 5 months imprisonment, consecutive to Count 1 of the current Indictment.

Total: 26 months' imprisonment.

Community Service Order and Probation Order to be discharged.

Driving disqualification for 5 years imposed by the Magistrate's Court to remain in place and once completed the defendant required to pass the appropriate driving test.

Forfeiture and destruction of the hammer ordered.

Zac Gee Hannaford

1 count of:

Breaking and entry and malicious damage (Count 1).

Age:  20 but 19 at time of offending.

Plea: Guilty.

Details of Offence:

See Cox above.

Details of Mitigation:

The Crown

Guilty plea; youth - 19 at time of offence.  No previous criminal convictions.  Low risk of re-offending; low risk of harm to others.  Letter of apology/references provided. 

The Defence

The Court indicated prior to mitigation that it was minded to follow the Crown's conclusions.  The defendant had provided a basis for plea and had letter of remorse and character references.  Disputed submissions of defence counsel for Cox re facts. 

Previous Convictions:

No convictions but two Parish Hall appearances.

Conclusions:

Count 1:

90 hours' Community Service Order or 3 months' youth detention in default.

Sentence and Observations of Court:

In relation to the other four defendants the Court emphasised that breaking and entry into residential property at night was a very serious offence.  It causes great fear and distress to the occupants.  The residents were distressed even though the defendants only entered the lobby.  All the defendants were at risk of youth detention.  Hannaford was age 20 and the other three aged 19.  None of them had significant criminal records.  Hannaford and Qari had no record.  Article 4 of the Young Offenders Law indicated that a custodial sentence should not be opposed unless there was no other way of dealing with them.  The probation reports all suggested Community Service hours and for Hawkins an additional Probation Order.  The Court agreed with the Crown's conclusions for all four of the defendants.  They had been before the Court on a serious offence.  All defendants were given a warning as to the consequences were they not to carry out the Community Service Order or to re-offend.  They were at high risk of being sentenced to youth detention if they did.  The Court expressed a hope that they had all learnt a lesson and would not be back before the Court.

Conclusions granted.

Adam Hawkins

1 count of:

Breaking and entry and malicious damage (Count 1).

Age:  19.

Plea: Guilty.

Details of Offence:

See Cox above.

Details of Mitigation:

The Crown

Guilty plea.  Age 19.  One previous conviction for 13 offences.  Placed on Probation and Community Service.  Technical breach but no outstanding orders against him at the time of sentencing.  Moderate risk of re-offending. 

The Defence

The Court indicated prior to mitigation that it was minded to follow the Crown's conclusions.  The Defence took issue with submissions made by Cox's counsel.  The defendant willing to undertake Probation and Community Service Order.

Previous Convictions:

One conviction for 13 offences including driving without a licence x 2; no insurance x 2; reckless or dangerous driving and other miscellaneous motoring offences.

Conclusions:

Count 1:

90 hours' Community Service Order or 3 months' youth detention in default.

Sentence and Observations of Court:

In relation to the other four defendants the Court emphasised that breaking and entry into residential property at night was a very serious offence.  It causes great fear and distress to the occupants.  The residents were distressed even though the defendants only entered the lobby.  All the defendants were at risk of youth detention.  Hannaford was age 20 and the other three aged 19.  None of them had significant criminal records.  Hannaford and Qari had no record.  Article 4 of the Young Offenders Law indicated that a custodial sentence should not be opposed unless there was no other way of dealing with them.  The probation reports all suggested Community Service hours and for Hawkins an additional Probation Order.  The Court agreed with the Crown's conclusions for all four of the defendants.  They had been before the Court on a serious offence.  All were given a warning as to the consequences were they not to carry out the Community Service Order or to re-offend.  They were all at high risk of being sentenced to youth detention if they did.  The Court expressed a hope that they had all learnt a lesson and would not be back before the Court.

Count 1:

90 hours' Community Service Order together with a Probation Order for a period of 9 months or 3 months' youth detention in default.

Saeed Hussain Malik Qari

1 count of:

Breaking and entry and malicious damage (Count 1).

Age:  19 but 18 at time of offending.

Plea: Guilty.

Details of Offence:

See Cox above.

Details of Mitigation:

The Crown

Guilty plea; youth: 18 at the time of offence.  No previous criminal convictions.  Low risk of re-offending.  Letter of apology and references provided. 

The Defence

Court indicated prior to mitigation that it was minded to follow the Crown's conclusions.  The defendant willing to undertake Community Service Order.  References provided and impact upon defendant was clear from his letter of apology.

Previous Convictions:

No convictions but three Parish Hall appearances.

Conclusions:

Count 1:

90 hours' Community Service Order or 3 months' youth detention in default.

Sentence and Observations of Court:

In relation to the other four defendants the Court emphasised that breaking and entry into residential property at night was a very serious offence.  It causes great fear and distress to the occupants.  The residents were distressed even though the defendants only entered the lobby.  All the defendants were at risk of youth detention.  Hannaford was age 20 and the other three aged 19.  None of them had significant criminal records.  Hannaford and Qari had no record.  Article 4 of the Young Offenders Law indicated that a custodial sentence should not be opposed unless there was no other way of dealing with them.  The probation reports all suggested Community Service hours and for Hawkins an additional Probation Order.  The Court agreed with the Crown's conclusions for all four of the defendants.  They had been before the Court on a serious offence.  All given a warning as to the consequences were they not to carry out the Community Service Order or to re-offend.  They were all at high risk of being sentenced to youth detention if they did.  The Court expressed a hope that they had all learnt a lesson and would not be back before the Court.

Conclusions granted.

Rui Dinarte Calaca Viveiros

1 count of:

Breaking and entry and malicious damage (Count 1).

Age:  19 but 18 at time of offending.

Plea: Guilty.

Details of Offence:

See Cox above.

Details of Mitigation:

The Crown

Guilty plea; youth: 18 at the time of offence.  One previous conviction before Magistrate's Court.  Low risk of re-offending.  Letter of apology and references provided. 

The Defence

The Court indicated prior to mitigation that it was minded to follow the Crown's conclusions.  The defendant able and willing to undertake Community Service.

Previous Convictions:

One conviction for 2 offences of breaking and entry and urinating.  8 Parish Hall appearances.

Conclusions:

Count 1:

90 hours' Community Service Order or 3 months' youth detention in default.

Sentence and Observations of Court:

In relation to the other four defendants the Court emphasised that breaking and entry into residential property at night was a very serious offence.  It causes great fear and distress to the occupants.  The residents were distressed even though the defendants only entered the lobby.  All of the defendants were at risk of youth detention.  Hannaford was age 20 and the other three aged 19.  None of them had significant criminal records.  Hannaford and Qari had no record.  Article 4 of the Young Offenders Law indicated that a custodial sentence should not be opposed unless there was no other way of dealing with them.  The probation reports all suggested Community Service hours and for Hawkins an additional Probation Order.  The Court agreed with the Crown's conclusions for all four of the defendants.  They had been before the Court on a serious offence.  All given a warning as to the consequences were they not to carry out the Community Service Order or to re-offend.  All were at high risk of being sentenced to youth detention if they did.  The Court expressed a hope that they had all learnt a lesson and would not be back before the Court.

Conclusions granted.

J. C. Gollop, Esq., Crown Advocate.

Advocate S. E. A. Dale for Cox.

Advocate J. W. R. Bell for Hannaford.

Advocate P. G. Nicholls for Hawkins.

Advocate C. M. Fogarty for Qari.

Advocate J. R. Giovannoni for Viveiros.

JUDGMENT

THE commissioner:

1.        Mr Cox, you felt you had been defrauded of £90 by someone who sold you tablets as valium when they were not and, on the night in question, we are satisfied that you led a group comprising you and your four co-accused to break in to the property run by the Shelter with a view to obtaining the address of your supplier.  This involved kicking in the door and then trying to open the post boxes for individual rooms.  You smashed a CCTV with a hammer and the remainder of you followed him in, entering the building and helped him in relation to the boxes, some of you by actually fiddling with them, others simply by standing and watching, and on the way out, Cox, you used the hammer to cause damage to a moped which you mistakenly thought belonged to someone else.  You have a terrible record with many previous convictions for breaking and entering, and this offending puts you in breach of a Probation Order, a Community Service Order and a suspended sentence imposed by the Magistrate's Court in December 2014. 

2.        We have listened very carefully to what Advocate Dale has said, most eloquently, on your behalf; in particular she has emphasised that you do appear to be changing your approach.  In the past you have appeared to be headed on a path of self-destruction but, she says, and this is supported by the background report, on this occasion whilst on remand you are adopting a different attitude; you are trying to take advantage of the help that can be given to you in prison and, she says on your behalf, you are determined to try and be the father that you wish you had had.  We commend you for that and we are taking all that into account because had it not been for that, the sentence would have been higher. 

3.        Now you, very realistically, accept that there is no alternative to prison in your case given your previous record and I want to emphasise that the Court takes a very serious view of breaking and entering residential property, particularly at night.  The case of AG-v-Da Silva [1997] JLR N 14a speaks of a sentence of the region of 3 years even on a guilty plea for such offending.  We do not think it is necessary to pass a sentence of that length but, nevertheless, we think that the 18 months moved for by the Crown is too low given your previous record and we think the minimum sentence we can pass for the breaking and entering is one of 21 months.  In doing that we do, of course, take account of the sentence we are going to pass on your co-accused but we do consider that your role and your previous record means that a totally different sentence is required.  We are also going to impose 5 months for the breach of the Community Service and Probation Orders for those offences. 

4.        The Crown originally moved for a further 5 months for the activation of the suspended sentence which you were given in the Magistrate's Court, but it seems to us that that was an unlawful sentence as being contrary to Article 2(3)(a) of the Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2002.  On that basis it would be wrong for us to activate that now.  Because it was a wrong sentence originally it would certainly be wrong for us now to activate it and actually send you to prison for that period; so we are going to make no order on the suspended sentence.  But, nevertheless, putting those together, on Count 1; 21 months, on Count 2; 3 months' and on Count 3; 3 months, all of those concurrent, and then for the three offences of driving whilst disqualified, without insurance and under the influence, we pass a sentence of 5 months' imprisonment, concurrent with each other, but consecutive to Count 1 of the current Indictment, which makes 26 months' imprisonment in all. 

5.        We also order the forfeiture and destruction of the hammer. 

6.        Turning to the other four of you, you should be ashamed of yourselves.  Breaking and entering, as I have just said, is regarded as a serious offence where it is in relation to residential property and at night, and this is because it can cause so much fear and distress to the people whose houses are broken into and indeed we have heard that some of the residents of this particular accommodation have been distressed by what happened, even though, as Advocate Dale emphasised, and we accept, you only got as far as the lobby. Nevertheless, you have all stood at risk of being sent to youth detention.  But you are all still young, Hannaford, you are 20, and the rest of you are 19.  Most importantly, none of you have any significant criminal records.  In the case of Hannaford and Qari, you have no convictions at all, Hawkins you have been before the Court on one occasion for various motoring offences, and you, Viveiros, have one previous conviction when you were 15.  Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 makes it clear that we should not impose youth detention unless we are satisfied there is no alternative way of dealing with you.  Now the probation report recommends that there is in this case; community service and community service and probation for Hawkins.  We are going to agree with those conclusions and so you are not going to go to youth detention on this occasion.

7.        The sentence for each of you is that you will serve 90 hours of community service on Count 1 or 3 months' youth detention in default, and in the case of Hawkins, you will also be placed on probation for 9 months; this is to help you address some of the issues which are raised in the reports. 

8.        I just want to give all four of you this warning.  You have come before the Royal Court for a serious offence.  If you do not carry out the community service to the letter, turning up when you should, doing what you are told, carrying out the work conscientiously, or, of course, if you reoffend, then you will be brought back here and resentenced and at that stage there will be a high risk of you actually being sent to youth detention.  So we hope very much that the four of you have learned your lesson from this occasion and that we will not see you again before the Court. 

Authorities

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

Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2002.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG v Cox [2009] JRC 224.

AG v Cox [2011] JRC 087.

AG v Cox [2013] JRC 066.

AG v Such [2012] JRC 155.