Jersey Unreported Judgments

Inferior Number Sentencing - Breaking and Entry and Larceny.

[2020]JRC257

Royal Court

(Samedi)

11 December 2020

Before     :

A. J. Olsen, Esq., Lieutenant Bailiff, and Jurats Ramsden and Pitman.

The Attorney General

-v-

Craig Clayton Livesey

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

1 count of:

Breaking and Entry and Larceny (Count 1).

Age:  24.

Plea: Guilty.

Details of Offence:

The Defendant broke into a flat by prising open the kitchen window at night whilst the owner was sleeping.  The Defendant stole a games console, games, £25 cash and some alcohol.  The items stolen were worth £600 and were not recovered.  Palm prints were taken from the property and matched the Defendant's palm print. 

 

Details of Mitigation:

Plea, trauma in early life, has been in custody for three months, support of partner and mother, motivation to turn life around, letter of remorse and letter to victim.

Previous Convictions:

A number of unrelated offences, all from 2018.

Conclusions:

Count 1:

15 months' imprisonment sought.

Compensation Order sought in the sum of £3,671.63.

Crown does not seek any order for costs. 

Sentence and Observations of Court:

Count 1:

210 hours' Community Service Order, equivalent to 15 months' custody.

12 months' probation order made.

Compensation Order in the sum of £700, payable to the victim with 12 months to pay or 7 weeks' imprisonment in default.  

R. C. P. Pedley, Crown Advocate.

Advocate A. Binnie for the Defendant.

JUDGMENT

THE Lieutenant BAILIFF:

1.        Craig Livesey, you broke into a domestic dwelling late at night when it was occupied by its owner.  You stole various items and cash to the total value of about £600.  None of the property or cash has been recovered.  

2.        It was as long ago as 1983 that Sir Frank Ereaut, the then Bailiff, in AG v Allo and Collins [1983] JJ85 said this:

"...It is common knowledge that breaking into a private dwelling has a most distressing effect invariably on the occupiers of the dwelling. Sometimes that effect takes a form of fear and in all cases it takes a form of distress. And we believe that that is an element of this offence which is not always sufficiently appreciated by some Courts but certainly it is appreciated by this Court, and this Court has always tried to make clear, and we make it clear again today, the distress element, which is an aggravating factor."

3.        The Crown has drawn our attention to R v Brewster and Others [1998] Cr.App R. 220.  At page 7 of his judgment, Lord Bingham said:

"The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar."

4.        In AG v Goodchild [2020] JRC050, the defendant was sentenced to 18 months' imprisonment for illegally entering a dwelling at night while an occupant was sleeping.  The case of AG v Da Silva [1997] JRC 218 was highlighted in Goodchild and confirmed as illustrating:

"...the serious nature indeed of unlawful entry of dwelling premises at night and the policy of the Court that almost inevitably follows."

5.        In your case, you are fortunate that the victim does not seem to have been particularly distressed; so the element of trauma that underpins the Court's policy in such cases as Allo and Collins, Brewster, Goodchild and Da Silva is lacking.  This, as the Crown rightly concedes, arguably indicates that the sentence may be reduced.  You are very fortunate that this is the case.  

6.        We accept counsel's submission that this was not a premeditated or sophisticated offence and we also accept that some of the aggravating features that we sometimes encounter in this type of case are not present here: you did not confront or threaten the householder.  There was no violence.  The victim was unaware of the break in until the following morning.

7.        But there were two aggravating factors, in our judgement.  First, none of the stolen property has been recovered.  Secondly, you knew the victim, who had helped you in the past.  

8.        But there is substantial mitigation available for you as well.  You experienced some very traumatic events in your early life and indeed throughout your life to date.  We do not wish to elaborate on these matters, but are in no doubt that they have had a profound and lasting effect upon you, and we have taken careful note of everything that is set out in the Social Enquiry Report and the Psychiatric Report.  

9.        You have a criminal record, but it is by no means the worst we have seen, and we note that all your previous offending seems to have been committed over the course of a few months in 2018.  Importantly, you have no previous convictions for dishonesty and none for housebreaking.  This is your first offence of this type, and you are entitled to some credit for that.

10.      Turning back to your personal mitigation, we also take into account the opinion of the psychiatrist that a period of enforced separation from your partner and child is likely to exacerbate your depression, and this would prejudice your chances of receiving effective treatment for ADHD and substance abuse. 

11.      We also take into account several other mitigating factors.  You pleaded guilty at the earliest opportunity.  You have served the equivalent of 3½ months on remand.  You have demonstrated a positive commitment to your partner and child.  Your partner is very supportive of you; you will shortly have been together for three years.  You have maintained voluntary contact with various agencies over a period of two years or so.  You are motivated to work.  A place is available to you at Silkworth Lodge, and you seem to be keen to take it up on 7 January next year.  You have taken responsibility for your actions and seem to be committed to changing your life.  You have some wonderful letters of support in the pack that your counsel has passed to us; you know some very caring people. 

12.      Would you stand please, Mr Livesey.  We start with the compensation order.  The compensation order will be in the sum of £700 in favour of the victim with a default sentence of seven weeks, and we give you one year within which to pay: 

13.      In all the circumstances it is the judgment of this court that a custodial sentence can be avoided in this case.  We are not going to send you to prison.

14.      There will be as a direct alternative to custody a Community Service Order of 210 hours, which is the equivalent of 15 months' imprisonment. 

15.      In addition, we make a 12-months' Probation Order.  We expect you to comply with the programme that Silkworth Lodge has prescribed.  It is a tough one, but we expect you to comply with it.  We are not making it a condition of your Probation Order, but certainly the Probation Service would take a very dim view, we think, if you failed to keep those appointments with Silkworth.  

16.      Mr Livesey, we urge you to full advantage of all the help that you can get, all the support you have.  It is really quite impressive to see how many people are watching out for you.  Try hard to leave your past behind you; focus on the future.  We can see no reason at all why that future should not be a bright one.  We very much hope that this will be your first and last appearance before this Court.   

Authorities

AG v Allo and Collins [1983] J.J. 85

R v Brewster and Others [1998] Cr. App R. 220

AG v Da Silva [1997] JRC 218

AG v Goodchild [2020] JRC050

Criminal Justice (Compensation Orders) (Jersey) Law 1994