Jersey Unreported Judgments

Superior Number Sentencing - attempted robbery

[2020]JRC184

Royal Court

(Samedi)

14 September 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Blampied, Christensen and Dulake

The Attorney General

-v-

George-Eduard Gheorghe

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 3^rd April, 2020, following a guilty plea to the following charges:

1 count of:

Attempted Robbery (Count 1).

Age:  37.

Plea: Guilty. 

Details of Offence:

The defendant on 24^th January, 2020, entered Morrison's on Gloucester Street.  At approximately 22:05 the defendant ran through the entrance holding a large kitchen knife and pointed the knife at the women and shouted 'get in the shop'.  The Defendant had covered his face with a woollen hat with eyeholes cut into it to make a balaclava and wore distinctive yellow and orange work gloves.  The defendant shouted at one of the shop assistants to open the office door, as the shop assistant attempted to do so he held the knife in front of her face.  When the door was open the other shop assistant was told to go inside the office, the defendant ran towards her pointing the knife at her.  The shop assistant managed to run into the office and then shop assistants forced the door shut and the defendant fled the store.

 

The Police were called by the manager of the shop who had been called by the shop assistants.  The surrounding area was searched and a rucksack was found with a kitchen knife, a pair of yellow and orange work gloves and a grey hooded top inside.

 

The kitchen knife was examined for fingerprints and a match was made to the defendant.  The defendant's wife also confirmed the knife belonged to them and the rucksack found and the top belonged to the defendant.

 

The defendant was interviewed on three occasions and denied being responsible for the attempted robbery.  On indictment the Defendant entered a guilty plea.

Details of Mitigation:

Prosecution - early guilty plea despite denying the offending when questioned by the police.  Defendant of good character having no previous convictions.

 

Defence - benefit of guilty plea and is of good character, wholly out of character incident which he deeply regrets, was not a sophisticated plan, it was a moment of madness.

Previous Convictions:

No previous convictions. 

Conclusions:

Count 1:

4 years and 6 months' imprisonment.

Forfeiture and destruction of the knife sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:

4 years' imprisonment.

Forfeiture and destruction of the knife ordered.

No recommendation for deportation made.

C. R. Baglin Esq., Crown Advocate.

Advocate J-A. C. Dix for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant who is 37 stands to be sentenced for 1 Count of attempted robbery.  The brief facts are that on Friday, 24^th January, 2020, the two shop assistants working at the Morrison's daily shop in Gloucester Street were closing the shop at just after 10pm at the rear entrance.  As they were about to leave, the defendant ran through the entrance holding a large kitchen knife in his right hand which he pointed at the women, shouting at them to get into the shop.  The defendant had covered his face with a dark blue beanie style woollen hat with eye holes cut into it to make a balaclava.  Inside he shouted at one of the shop assistants to open the office door.  As she attempted to do this he held her against the door with one hand whilst holding a knife in the other hand in front of her face.  When the office door was opened the defendant then turned to the other shop assistant who had taken refuge behind a mobile goods stand and told her to go inside the office.  He ran towards her swapping the knife between his hands and pointing it at her.  She ran into the office where both women managed to force the door shut as the defendant attempted to push it open.  The defendant then fled from the scene, and we have been shown the incident on CCTV.  Throughout this the defendant had left his 2 year old son strapped to the car seat of his car which he had parked further down Gloucester Street.

2.        The defendant was not cooperative with the police in interview but he pleaded guilty when indicted.  In the view of the Probation Officer, in his interview with her, he sought to minimise the seriousness of this offence.

3.        The Social Enquiry Report notes the following stabilising factors in his life:-

(i)        His employment.

(ii)       His marriage of some 6 years. 

(iii)      He has no issue with alcohol or drugs. 

(iv)      He has no previous convictions and is of good character. 

(v)       He has a hobby, namely the restoration of a boat. 

(vi)      He has a pro-social attitude; and

(vii)     He is well educated and articulate.

It would seem that leading up to this offence he was experiencing anxiety due to financial problems brought about by a loan he had made to his brother-in-law and family, the theft of his money by his own brother who had visited him from Romania, the death of his father and the serious illness of his mother.  A pre-stroke experience 7 years ago may have made him more susceptible to stress.

4.        In the view of the Probation Officer gambling was also an issue.  The defendant accepts that he had gambled in the period leading up to this offence in order to resolve his financial problems but denies that he has a gambling addiction.  Although he appeared to be very anxious prior to the offence the Social Enquiry Report states that he was prepared to use the threat of violence against two women to ensure his needs were meet.

5.        Unhelpfully in our view, the Social Enquiry Report did not give us the conclusion reached following the application of the reconviction assessment tool.  The Probation Officer informed us in Court that the conclusion reached using that tool was that the risk of reconviction was low, but there were aggravating features namely the use of violence, poor problem solving skills and his putting women in fear of that violence.

6.        In our view the conclusion reached by the Probation Officer when using this assessment tool will always be relevant for the Court to take into account, accepting that the Probation Officer may reach a conclusion which differs from the conclusion reached using that assessment tool.  In this case we have neither in the report.

7.        The Crown have referred us to the leading authority for sentencing offences of this nature namely, Gill v AG [1999] JLR Note 18C in which Gill who had no previous convictions for offences of violence committed a robbery on a young shop assistant by threatening him with a knife.  He was sentenced to 4 years imprisonment which was upheld by the Court of Appeal who said this (Gill v AG 1999/160):-

"The starting point for this Court is that the robbery in this case was a particularly serious one.  A dangerous knife was put at the throat of the young cashier and he was placed in fear of his life or of serious injury. Whether the robbery was premeditated or not, and whether it was committed under the influence of alcohol or not, are questions of little significance, in the light of the simple fact that the violence committed in the course of the robbery involved putting the young cashier in such fear.

No community can tolerate violent robberies of this kind, and any person who commits such a violent robbery in Jersey, whatever may be the circumstances of the robber, must expect to receive severe punishment by a long prison sentence.

...

In cases of violence, whether of assault or robbery or rape, or other forms of violence, it is necessary that the punishments ordered by the court should have an element of deterrence not to deter the offender because it is too late to do that, but

(1) to deter others who may be tempted to engage in similar violence and to remind them that if they do so they will similarly face long sentences of imprisonment, and

(2) to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey."

8.        The Court of Appeal upheld the sentence of 4 years imprisonment and commented that if Gill had been sentenced to 5 years' imprisonment it is doubtful whether leave to appeal would have been given.

9.        In the case of AG v Whiteley [1998/126] a de facto sentencing range of 18 months to 5½ years was approved by the court.  Whiteley who had previous convictions for violence was sentenced to 4 years' imprisonment for robbing a pharmacist for drugs by holding a knife to his stomach.

10.      For the purpose of comparison the Crown also referred us to AG v Rousseau [2011] JRC 195; the AG v Hunt [2014] JRC 125 and AG v Cox [2019] JRC 172.  The Crown have identified the following aggravating features:-

(i)        The use of a large knife to threaten the shop assistants.

(ii)       The offence was planned.  The defendant knew the cashing-up and closing routine of the shop and drove from his home to Gloucester Street with the knife and balaclava into which he had cut eye holes. 

(iii)      The Crown say he left his 2 year old son unattended in the car at night for approximately 10 minutes whilst he committed the offence.

(iv)      The victim personal statement from one of the shop assistants shows the fear that she was put through and she also injured her knee during the robbery.

11.      In terms of mitigation, we have already referred to some of this extracted from the Social Enquiry Report.  The defendant has pleaded guilty, he is a man of good character, he has written a good letter of remorse which we accept is genuine and which recognises the effect of the attempted robbery on the shop assistants.  We have also considered the character references and all of points ably and clearly put forward by Advocate Dix and accept that there was an element of moment of madness or desperation in the defendant's actions which were completely out of character.

12.      Of the aggravating features put forward by the Crown we accept there must have been element of planning, but do not regard the leaving his son in the car as aggravating feature of this offence.  It has been investigated by the Children's Service and their file is closed.  Having said that this is a serious offence and you therefore sentenced as follows.

13.      You are sentenced to 4 years imprisonment;

14.      We order the forfeiture and destruction of the knife.

15.      We turn now to the issue of deportation.  The two part test to be applied following the Court of Appeal case of Camacho v AG [2007] JLR 462 is firstly whether the defendant's continued presence is detrimental to the Island and if so, secondly, what is the effect of deportation on the human rights of innocent persons connected to the defendant and of the defendant himself? 

16.      We agree with Crown that the first part of the test is met.  The continued presence of a man who has committed such a serious offence of violence is clearly detrimental to the Island.  Advocate Dix concedes that this part of the test is met. 

17.      As to the second part of the test the defendant is from Romania where his mother and sister and presumably his brother reside.  He has only been in the Island for nearly 5 years.  As against that his wife, who is also Romanian, lives and works in Jersey and has the care of their now 3 year old son.  The mother has extensive family here including her parents who assist in the child's care and the mother intends to remain in the Island bringing up the child here.  We consider the effect on the defendant's wife and in particular his young son of the defendant's deportation would be disproportionate and we therefore decline to recommend the defendant's deportation.

Authorities

Gill v AG [1999] JLR Note 18c

Gill v AG 1999/160

AG v Whiteley [1998/126

AG v Rousseau [2011] JRC 195

AG v Hunt [2014] JRC 125

AG v Cox [2019] JRC 172

Camacho v AG [2007] JLR 462