Jersey Unreported Judgments

Inferior Number Sentencing - receiving and hiding stolen goods - breaking and entering with intent - failing to provide a specimen - drugs - possession - Class B and Class C.

[2017]JRC139

Royal Court

(Samedi)

1 September 2017

Before     :

Sir William Bailhache, Bailiff, and Jurats Olsen and Sparrow.

The Attorney General

-v-

Bruno Manuel De Faria

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

1 count of:	Receiving, hiding or withholding stolen property (Count 1).
1 count of:	Breaking and entering with intent (Count 2).
1 count of	Failing to provide a specimen, contrary to Article 30(7) (as amended) of the Road Traffic (Jersey) Law 1956 (Count 3).
2 counts of	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 4 and 5).

Age:  35. 

Plea: Guilty.

Details of Offence:

Receiving, hiding or withholding stolen property

On 15^th January, 2017, the Posh Wash laundrette was broken into a number of items, including £9,000 cash in Jersey notes, a Tom Tom Satellite Navigation system and an iPod, were stolen.  On 2^nd February, 2017, the defendant's car was searched by Police as part of an investigation after he was caught in the act of breaking into the Brighton Road Laundrette by the owners.  Among items recovered from the vehicle were the Tom Tom Sat Nav and iPod stolen from Posh Wash laundrette.  The defendant's home address was searched and £1,700 cash in Jersey £20 notes were found hidden inside a locked suitcase.  The defendant accepted that the stolen items were given to him in exchange for minding the stolen cash.

Breaking and entering with intent

Sometime after 2:30am on Thursday, 2^nd February, 2017, the defendant, who was intoxicated, forced entry through the doors of the Pants in Paradise launderette in Brighton Road using a screwdriver.  The husband and wife owners live next door and the wife alerted her husband after being woken by noises coming from the launderette.  Despite being scared of what they might find, they dressed and went next door.  The defendant was hiding inside the launderette and was first discovered by the wife who was shocked and scared.  She had not seen that the defendant still had the screwdriver in his hand, but her husband did see it when he confronted him.  The husband punched the defendant in the face and then held him down until the police arrived and arrested him just before 3am.

Failing to provide a specimen

During the search of the defendant in the launderette a Peugeot car key was discovered.  It was found to be the key to a silver Peugeot J14535 that was reported to the police as being driven by someone who was drunk at around 2:20am the same morning.  The Car was discovered parked a short distance away next to Reid's Hair Salon at 3am and the brake discs and engine were still warm to the touch.  Suspecting that the defendant had driven the car to the scene of the crime, the police doctor, having examined him and found him the be under the influence of drink or drugs, required him to provide a specimen of blood at the police station at about 4:40am and he refused to do so.

Possession of a controlled drug (x2)

When the car was seized and searched, 11 Dihydrocodeine tablets (Class B) and 2 Diazepam tablets (Class C) belonging to the defendant were found.

Aggravating Features

The owners of the Pants in Paradise Launderette were confronted by the defendant, wielding a screwdriver.

The burglary was committed at night and while the defendant was under the influence of drink and drugs.

The defendant has a previous conviction for importing drugs into the Island and was bound over to leave the Island for three years.

Details of Mitigation:

The defendant has the benefit of guilty pleas, though in all cases he was either literally or effectively caught red handed.

Previous Convictions:

The defendant has one previous conviction in Jersey for drug trafficking.  He also has a criminal record in Madeira and Portugal consisting of aggravated theft and motoring offences as well as drug trafficking, counterfeiting and misappropriation.

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 months' imprisonment, concurrent, plus disqualification from driving for a period of 24 months.
Count 4.	1 month's imprisonment, concurrent.
Count 5	1 week's imprisonment, concurrent.

Total: 2 years' imprisonment, plus disqualification from driving for a period of 24 months.

Forfeiture of monies seized in the sum of £1,700 sought.

Forfeiture and destruction of the drugs sought.

Forfeiture and destruction of the screwdriver sought.

Recommendation for Deportation sought.

Sentence and Observations of Court:

Count 1:	9 month's imprisonment.
Count 2:	2 year's imprisonment, consecutive.
Count 3:	2 months' imprisonment, concurrent, plus disqualification from driving for a period of 12 months.
Count 4:	1 month's imprisonment, concurrent.
Count 5:	1 week's imprisonment, concurrent.

Total: 2 years and 9 months' imprisonment, plus disqualification from driving for a period of 12 months.

Monies seized in the sum of £1,700 to be returned to the victim concerned.

Forfeiture and destruction of the drugs ordered.

Recommendation for deportation made.

Compensation Order made in the sum of £450 to be paid within 6 months from date of sentence or 1 month's imprisonment in default.

C. R. Baglin, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        We are going to sentence you to a total period of imprisonment of 2 years' and 9 months' and I will now go on to explain how we have reached that total. 

2.        You are here to be sentenced on an Indictment, the first count of which is receiving, hiding or withholding stolen property.  You agreed to hold £1,700 in cash and in return for that you were to get a Tom Tom satellite navigation system and an iPod.  Withholding or receiving stolen property is a serious offence because, as has been said many times, if there were to be no receivers there would be less theft, and we have had particular regard to the English case of R v Webbe [2002] 1 Cr App R (S) 22 and the features of that case at paragraph 20, where LJ Rose says these are the factors which aggravate the offence:

"1. The closeness of the handler to the primary offence.

2. Particular seriousness in the primary offence.

3. High value of the goods to the loser, including sentimental value.

4. The fact that the goods were the proceeds of a domestic burglary.

5. Sophistication in relation to the handling.

6. A high level of profit made or expected by the handler.

7. The provision by the handler of a regular outlet for stolen goods.

8. Threats of violence or abuse of power by the handler over others,"

We agree that those are factors which, in theory, can aggravate the offence and we make it plain they do not all apply here.  The ones that do apply here, it seems to us to be these; we treat the fact that the value of the goods to the loser was significant, the cash particularly the sentimental value in the sense that the cash was going to be used for the purposes of a holiday by people who work very hard and were then not able to take that holiday, that to us is an aggravating factor.  We also think that the fact that you have admitted receiving, hiding, withholding within a day of the primary offence means that there is a closeness of the handler to the primary offence.  Those are the two points in particular which from that list aggravate the offence, but we otherwise accept the submissions which Advocate Bell has put forward in relation to that offence.

3.        We think the Crown have it right in moving for a sentence of 12 months' imprisonment on that charge and we would normally have sentenced you to 12 months.  We are not going to do so for reasons I will come on to explain, but we would normally take that count as calling for a sentence of 12 months' imprisonment.

4.        We do think in relation to Count 2 that this was a serious offence.  It was a bad break-in.  You broke in under the influence of drugs or drink; there was a violent struggle.  It is true that there was some element of injury to you in the sense that you were punched, but that was unsurprising because the seriousness of the offence is your obvious threat to one of the property owners, the wife, and the fact that, although she could not see it you were holding a weapon, a screwdriver which, no doubt, and this point is clear, the husband, the other property owner saw and he was perfectly entitled to defend himself and his wife and his property in the way that he did.  It is right for the purposes of the judgment to say that the wife said "I was really shocked; I'll never forget seeing him jump up like that from behind the board.  I thought he was going to hurt me in that split second; his face looked weird, he looked angry like he was going to have me."  And the husband says "When the man stood up, I noticed he had a screwdriver in his hand."  So, although this was a break-in to commercial premises, the husband and wife lived next door and were seriously frightened by your offence and it is clear from the victim personal impact statement what an impact that your offence has had on them.  So we think that that was a serious offence and normally we would look to have imposed a sentence of 2½ years' imprisonment for that offence. 

5.        The next thing to say is that Counts 1 and 2 took place distanced in time, Count 1 on the 15^th and 16^th January, 2017, Count 2, some two or three weeks later on 2^nd February, 2017.  They are also different offences and we have no doubt that they should be treated in terms of consecutive sentences, and that if we were to impose the sentences that I have just described would mean 12 months' on Count 1 and 2½ years' on Count 2 which would make a total of 3½ years' imprisonment which we think is too long and that is why we are going to adjust it as I will come onto in just a moment. 

6.        In relation to Count 3, we think the Crown's conclusions are correct, 2 months' imprisonment is the right sentence of imprisonment to impose, and we think that the disqualification need not be as long as 24 months and it should be for 12 months only. 

7.        On Counts 4 and 5, 1 month's imprisonment and 1 week's imprisonment.  Again we think the Crown's conclusions are correct and so I now come on to deal with the question of totality. 

8.        As I have indicated we think that 3½ years is too long and we want to finish with a total of 2 years and 9 months' imprisonment   On totality grounds only we are going to reduce the sentence on Count 1 to 9 months' imprisonment and on Count 2 to 2 years' imprisonment.

9.        You are sentenced on Count 1 to 9 months' imprisonment and on Count 2 to 2 years' imprisonment, consecutive.  On Count 3; 2 month's imprisonment, concurrent, and disqualification from driving for 12 months.  Count 4; 1 month's imprisonment, concurrent, and Count 5; 1 week's imprisonment, concurrent. 

10.      I now turn to the questions of forfeiture.  The Crown accepts that the £1,700 cash which it asks to be forfeited is to be returned to the victim and so we order the forfeiture of the £1,700 and it is to be returned to the victim and we understand that the iPod and the Tom Tom also are to be returned to him. 

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

12.      The forfeiture and destruction of the screwdriver seems to us to be unnecessary and we do not make that order.

13.      We now come to the question of compensation.  The claim for compensation by one of the victims we do not think can be justified because his claim for compensation seems to relate to the monies that were stolen from him and other damage and you have only pleaded guilty to receiving or withholding and so we do not make that compensation order.  In respect of victim 2, he makes a claim for compensation for being unable to work for five weeks and he puts in a claim for the loss of two building jobs the sum of £4,000.  We make no compensation order there.  We do not find that he is not entitled to it but we do not have enough evidence to make any sort of compensation order there.  If he wishes to bring that claim he should do so in the usual way.  However, we do make a compensation order in relation to the claim for the increase in annual insurance because of the loss of the no claims bonus, and the excess of the policy.  Your Advocate is right to say we do not have the specific paperwork to support that claim but we are satisfied that those losses will have been incurred and therefore we order you to make a compensation payment to victim 3 in the sum of £450.  If you do not make that payment within the time which we allow which is 6 months you will serve an extra 1 month's imprisonment.  You have the right to come back to Court if your circumstances change.  We anticipate that either the motorbike or the car, between them or individually, will provide the cash to make the compensation payment.  If that should change and it should turn out you do not have the cash to make the payment then you can apply to the Court and we can vary the order which has been made Advocate Bell will no doubt explain that to you in more detail afterwards. 

14.      The last thing that we think should be added is that we have looked carefully at your letter of remorse which we are minded to accept.  You say that you are clear of drugs now, and that is very much to your credit.  Becoming clear of drugs is not an overnight cure, and it is not even an over six or seven months cure.  It is going to be a long term thing and you will need to use your time in custody profitably and be committed to that when you come out.  If you do that then the remorse that you have expressed will be reflected in a life which will give you much more pleasure afterwards.  But what you do carries consequences and you are being sentenced today for what you did at the time. 

15.      We also make an order recommending your deportation.  You have not opposed it.  We are satisfied on the basis of what we have seen that both parts of the test in Camacho v AG [2007] JLR 462 are justified and so we make the recommendation for deportation.  As I say you have not opposed it because you intend to go and live in Madeira afterwards anyway. 

16.      So you are sentenced to a total of 2 years' and 9 months' imprisonment.  

Authorities

R v Webbe [2002] 1 Cr App R (S) 22. 

Camacho v AG [2007] JLR 462. 

Misuse of Drugs (Jersey) Law 1978.

Road Traffic (Jersey) Law 1956.

Wylie v AG 2002/13.

AG v Gaffney 1995/101.