Jersey Unreported Judgments

Inferior Number Sentencing - drunk and incapable - breach of Probation and Community Service Orders.

[2018]JRC187

Royal Court

(Samedi)

5 October 2018

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Crill and Thomas.

The Attorney General

-v-

Kevin McKeown

Sentencing by the Inferior Number of the Royal Court following guilty pleas to the following charges, and on a breach of a Community Service Order and Probation Order imposed on 16^th February, 2018:

Indictment

2 counts of:

Drunk and incapable (Counts 1 and 2).

First Indictment - original offences

1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Riding a pedal cycle when under the influence of drink or drugs, contrary to Article 27 of the Road Traffic (Jersey) Law, 1956 (Count 2).
1 count of:	Drunk and incapable (Count 3)

Second Indictment - original offences

1 count of:

Illegal entry and larceny (Count 1).

Age:  40

Plea: Guilty

Details of Offence:

The defendant had been sentenced before the Inferior Number on 16^th February, 2018, when he was placed on Probation for 12 months and ordered to complete 180 hours of Community Service (AG v McKeown [2018]JRC039).  At sentencing the defendant was warned "do not squander the chance that we are going to give you because custody will, it seems to us, inevitably follow should that be the case."  

On 14^th April, 2018, he failed to turn up for community service claiming to be unwell but unable to provide any medical certificate.  On 21^st April he reported under the influence of alcohol and was dismissed, similar breaches followed; on 16^th June he failed to attend having been arrested intoxicated the previous day and taken into custody for his own wellbeing and on 14^th July he failed to report.  

He was detained intoxicated on 18^th July.  His Probation Officer noted that the frequency of his lapses and thereafter dealing with the aftermath of him being in crisis had ultimately prevented any progress being made to address his alcohol misuse and poor coping skills, commenting that this was 'not intentionally orchestrated' but 'clearly representative of the significant struggle he faces to control his acute alcohol addiction'.  

Although hardworking, pleasant and reliable when sober his addiction resulted in overall limited progress with the Orders, 110 hours work outstanding.  Probation information indicates a high likelihood of further breaches occurring. 

Details of Mitigation:

In 'permanent' employment but employer's latitude may lessen with time, recently moved into independent accommodation.  

Previous Convictions:

9 previous convictions, all alcohol-related, prior to the offences for which originally sentenced in February 2018. 

Conclusions:

Indictment

Count 1:	1 month imprisonment.
Count 2:	1 month imprisonment, consecutive

Breach of Probation and Community Service Orders, taking into account the 70 hours of Community Service performed:

First Indictment - original offences

Revoke the original non-custodial sentence

Count 1:	2 weeks' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.

Second Indictment - original offences

Revoke the original non-custodial sentence

Count 1:

8 months' imprisonment, concurrent.

Sentences on the breach offences to run concurrent with each other, sentences on the new offences consecutive to those, making a total of 10 months' imprisonment

Total:  10 months' imprisonment.

Sentence and Observations of Court:

Indictment

Count 1:	1 month imprisonment.
Count 2:	1 month imprisonment, concurrent.

First Indictment original offences

Revoke the original non-custodial sentence.

Count 1:	2 weeks' imprisonment.
Count 2:	2 weeks' imprisonment, concurrent.
Count 3	2 weeks' imprisonment, concurrent.

Second Indictment original offence.

Revoke the original non-custodial sentence.

Count 1:

8 months' imprisonment, consecutive to above.

Total:  9 months' imprisonment.

Original Orders made are discharged.

Ms. E. L Hollywood, Crown Advocate.

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

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are before the Court to answer to two counts of being drunk and incapable.  This puts you in breach of orders imposed by this Court on 16^th February this year and that is why counts which would not normally be before this Court are now before us.  

2.        The Court imposed the order on 16^th February when you pleaded guilty to a number of counts, including drunk and incapable and, most importantly, illegal entry and larceny.  The Crown on that occasion moved for a sentence totalling 15 months' imprisonment but instead we imposed a 12 month Probation Order and 180 hours' Community Service.  

3.        We imposed that order in the face of the Courts stated policy that there would normally be a custodial sentence for breaking and entry and larceny, and we did so because amongst the exceptional circumstances that we then took into account were signs that you were genuinely tackling your problems with alcohol. 

4.        We note that you have discharged 70 hours of the order currently in place and have 110 hours still to do.  We also note that you have not complied fully and there have been a number of breaches of the order before this matter was returned before us.  Indeed you have been in trouble for drunk and incapable on an occasion which was not sent to us but was allowed to take its normal course.  You have therefore been afforded further opportunities to avoid alcohol and its problems. 

5.        We have given considerable thought to the Psychiatric Report and indeed the other reports and we recognise, as we did before, your struggle with alcohol.  You have of course the benefit of the guilty pleas.  We have read with the care the letters and references and we take your expressions of remorse as being entirely genuine.  

6.        However, when the Court sentenced you on the last occasion [AG v McKeown [2018] JRC 039] it said, the following:- "I want to give you a warning in the strongest possible terms.  You have recognised the part that alcohol plays in your offending.  You have recognised the destructive cycle that it brings to your life.  This is your last chance, do not be here again, do not squander the chance that we are going to give you because custody will, it seems to us inevitably follow should that be the case". 

7.        I have to tell you that the Court is not unanimous and therefore this falls to my casting vote, but we do not think that you have given us any choice but to impose a custodial sentence.  Accordingly, we propose to sentence you as follows:-

(i)        on the current offences, you will be sentenced to:

(a)       Count 1, one month imprisonment. 

(b)       Count 2, one month imprisonment, concurrent, making a total on those counts of one month imprisonment.  

(ii)       In connection with the breach offences: 

(a)     Count 1, the possession of Zolpidem, 2 weeks' imprisonment.

(b)     Count 2, 2 weeks' imprisonment. 

(c)     Count 3, the drunk and incapable, 2 weeks' imprisonment.

(d)   The illegal entry, 8 months' imprisonment, all of those concurrent but consecutive to the new offences making a total of 9 months' imprisonment. 

8.        We discharge the original orders made.  We hope that you will take advantage to all of the treatment that will be available to you over the next few months in prison including input, we understand, from the Drug and Alcohol Service. 

Authorities

AG v McKeown [2018] JRC 039.

Criminal Justice (Community Service Orders)(Jersey) Law 2001

Loi (1937) sur l'atténuation des peines et sur la mise en liberté surveillée