Jersey Unreported Judgments

Inferior Number Sentencing - Breach of peace - drugs - larceny - offensive weapon - disorderly behaviour - motoring

[2021]JRC044

Royal Court

(Samedi)

12 February 2021

Before     :

R. J MacRae Esq., Deputy Bailiff, and Jurats Ronge and Hughes

The Attorney General

-v-

Z

Y

Sentencing by the Inferior Number of the Royal Court, following conviction at Assize trial and earlier guilty pleas to the following charges:

Z

Second Indictment

1 count of:	Breach of the peace by fighting (Count 1).
1 count of:	Being knowingly concerned in the attempted fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 2).
1 count of:	Failing to comply with a notice requiring disclosure of a key, contrary to Article 42F(1) of the Regulation of Investigatory Powers (Jersey) Law 2005 (Count 3).

Amended Third Indictment (Assize)

1 count of:	Larceny (Count 2)
1 count of:	Possession of an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law, 2000 (Count 3).

Fourth Indictment

1 count of:

Larceny (Count 1).

Age:  17. 

Plea: Guilty (Second and Fourth Indictment).  Not guilty (Amended Third Indictment).

Details of Offence:

On 12^th June 2020 the Defendants communicated on Snapchat with a 14-year-old boy who wished to purchase cannabis from them.  An arrangement was made for them all to meet at St Lawrence football pitch, ostensibly for the 14-year-old to buy cannabis.  The Defendants did not have cannabis to sell and planned on taking the 14-year-old's money when they met.  The 14-year-old's brother, aged in his early 20s, learned of the planned drug deal and decided to accompany his brother to the football pitch.  His intention was to act as if he wanted to purchase drugs with a view to identifying and obtaining evidence as to who had been supplying drugs to his younger brother.  At the football ground the younger brother hid behind a nearby car.  The elder brother was approached by Z and asked to count out money.  Y remained a short distance away acting as lookout.  Once the elder brother had counted out around £380, Z snatched the money and made off with it.  As he did so he produced a kitchen knife which he brandished at the elder brother, making thrusting movements towards his chest.  Both defendants then made off on Y's moped.  The brothers gave chase, the elder brandishing a shovel that he had obtained from the rear of his vehicle.  Eyewitnesses saw Z holding the knife as the moped travelled onto the main road and away from the football ground.  Both defendants were charged with robbery and possessing an offensive weapon, both offences put on a joint enterprise basis.  A count of larceny was added to the trial indictment as an alternative to robbery.  Both were acquitted of the robbery count.  Z had pleaded guilty to the alternative of larceny and Y was convicted of that count by the jury.  Both were convicted of possession of an offensive weapon.

 

Each Defendant had pleaded guilty at an early stage in proceedings to a number of other offences.

1.      A joint offence of larceny involving the theft of a bottle of gin from a supermarket.

2.      Z had pleaded guilty to breaching the peace by fighting arising out of an incident where he had been involved in a fight with another teenage boy at Harve Des Pas.

3.      Z had imported 10 tabs of LSD, valued at between £200 and £300, from a site accessed on the "dark web".  These had been intercepted by Border Force Officers in the UK.  As part of the investigation into that offence, Z was required, under the provisions of the Regulation of Investigatory Powers (Jersey) Law, 2005 to reveal to the police the access codes to his iPhone and his laptop.  He refused to do so and pleaded guilty to an offence under that legislation.

4.      Y pleaded guilty to two offences of using threatening and abusive words and behaviour relating to two separate incidents when he was abusive to staff working at a supermarket which he had been banned from entering.

5.      Y pleaded guilty to an offence of larceny where he had stolen a bottle of alcohol from a supermarket.

6.      Y also pleaded guilty to a number of offences under the Road Traffic (Jersey) Law relating to an incident when, as the holder of a provisional licence, he drove his vehicle at speed carelessly through the streets of St Helier whilst carrying Z as a pillion passenger, something that the holder of a provisional driving licence is not entitled to do.  Y's careless driving included going through a red light.

Details of Mitigation:

Youth, guilty pleas (where appropriate), had kept out of trouble for around 8 months, in employment with positive references.

Previous Convictions:

Z had previous convictions for larceny, malicious damage, possession of an offensive weapon (not a knife), possession of cannabis, a number of offences of assault, and one offence of engaging in disorderly behaviour, all of which related to the period between 2019 and 2020.  The instant offending occurred during the currency of a probation order, which had been breached and allowed to continue on one previous occasion.

Conclusions:

Second Indictment

Count 1:	1 month's Youth Detention
Count 2:	12 months' Youth Detention, consecutive.
Count 3:	8 months' Youth Detention, concurrent.

Amended Third Indictment (Assize)

Count 2:	2 years' Youth Detention.
Count 3:	9 month's Youth Detention, concurrent.

Fourth Indictment

Count 1:

1 month's Youth Detention

Breach of Pobation Order imposed by the Youth Court on 3 December 2019

Larceny	1 month's Youth Detention
Larceny from shop	1 month's Youth Detention, concurrent
Malicious Damage	1 month's Youth Detention, concurrent
Possession of Cannabis	3 months' Youth Detention, concurrent.
Possession of an offensive weapon	3 months' Youth Detention, concurrent.

Total:  3 years' Youth Detention.

Forfeiture and destruction of the LSD, iPhone and Laptop sought.

Sentence and Observations of Court:

Second Indictment

Count 1:	1 month's Youth Detention, concurrent.
Count 2:	12 months' Youth Detention, concurrent.
Count 3:	12 months' Youth Detention, concurrent.

Amended Third Indictment (Assize)

Count 2:	18 months' Youth Detention.
Count 3:	12 months' Youth Detention, concurrent.

Fourth Indictment

Count 1:

1 month's Youth detention, concurrent.

Breach of Pobation Order imposed by the Youth Court on 3 December 2019

Larceny	1 month's Youth Detention.
Larceny from shop	1 month's Youth Detention, concurrent.
Malicious Damage	1 month's Youth Detention, concurrent.
Possession of Cannabis	1 month's Youth Detention, concurrent.
Possession of an offensive weapon	3 months' Youth Detention, concurrent.

Total:  18 months' Youth Detention. 

Forfeiture and destruction of the LSD, iPhone and Laptop ordered.

Y

Age:  17. 

Plea: Guilty (First and Fourth Indictment).  Not guilty (Amended Third Indictment).

Details of Offence:

See Z above.

Details of Mitigation:

Youth, guilty pleas (where appropriate), no previous convictions, lesser role played in principal offence, had kept out of trouble for around 8 months, impact of period in custody awaiting sentence, diagnosis of ADHD.

Previous Convictions:

Y had received cautions for larceny, refusing to obey a police officer and possessing cannabis.

First Indictment

2 counts of:	Threatening, abusive or disorderly conduct, contrary to Article 2 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008. (Count 1, and Count 2)
1 count of:	Larceny (Count 3).
1 count of:	Driving without due care and attention, contrary to Article 25 of the Road Traffic (Jersey) Law 1956 (Count 4).
1 count of:	Failure to comply with the conditions subject to which a provisional licence is granted, contrary to Article 11(2) of the Road Traffic (Jersey) Law 1956. (Count 5).
1 count of:	Failure to conform to the indication given by a traffic light, contrary to Article 74(1)(a) of the Road Traffic (Jersey) Law 1956 (Count 6).

Amended Third Indictment (Assize)

1 count of:	Larceny (Count 2)
1 count of:	Possession of an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law, 2000 (Count 3).

Fourth Indictment

1 count of:

Larceny (Count 1).

Conclusions:

First Indictment

Count 1:	1 week's Youth Detention.
Count 2:	2 weeks' Youth Detention
Count 3:	1 month's Youth Detention.
Count 4:	No separate penalty.  24 month driving disqualification.
Count 5:	No separate penalty.
Count 6:	No separate penalty.

Amended Third Indictment (assize)

Count 2:	2 years' Youth Detention.
Count 3:	9 month's Youth Detention, concurrent.

Fourth Indictment

Count 1:

1 month's Youth Detention

Total:  2 years' Youth Detention. 

Sentence and Observations of Court:

First Indictment

Count 1:	40 hours' Community Service Order.
Count 2:	40 hours' Community Service Order.
Count 3:	50 hours' Community Service Order.
Count 4:	No separate penalty.  12 month driving disqualification.
Count 5:	No separate penalty.
Count 6:	No separate penalty.

Amended Third Indictment (assize)

Count 2:	240 hours' Community Service Order and 18 months' probation.
Count 3:	180 hours' Community Service Order and 18 months' probation.

Fourth Indictment

Count 1:

50 hours' Community Service Order.

Total:  240 hours' Community Service Order and 18 months' probation.

S. C. Thomas Esq., Crown Advocate.

Advocate C. G. Hillier for Defendant Z.

Advocate S. E. A. Dale for Defendant Y.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Z and Y, you are both 17 years of age and fall to be sentenced for a number of offences, most of which were committed when you, Z, were just short of 17 or 17 years of age and you, Y, were just short of 17 years of age.  We will summarise the offences in chronological order, leaving to the end the most serious matter which led to your conviction after a three day trial in front of a jury, concluding on 13^th January 2021. 

2.        The first offence in time was committed by you, Y, on 7^th March 2020 when you entered the Tesco store in Broad Street, from which you had earlier been banned on an account of previous behaviour.  The manager tried to remove you from the store.  You shouted at the manager, telling him to "fuck off" and "go back home bastard".  You pleaded guilty to using threatening words and behaviour on 19^th November 2020. 

3.        Two days later, at 8.30pm the same manager saw you outside the Tesco store filming him on your mobile phone and sticking your middle finger up at him whilst you did so.  The manager then reported you for this and the earlier offence and you admitted this offence on 19^th November 2020.  After committing the second offence you were issued with a harassment notice by the police.

4.        Two months later, on Sunday 10^th May 2020, Y, you went into the Iceland store in Georgetown and stole a bottle of Bacardi and a bottle of brandy without paying for them.  You were later identified by a police officer who examined the CCTV footage.  You pleaded guilty to larceny on 19^th November 2020.

5.        I will come back to the most serious offences committed by you both on 12^th May, 2020, two days after you stole these bottles from Iceland, Y. 

6.        On 18^th May, 2020, six days after the offence in relation to which you were convicted by the jury, you, Z, committed a breach of the peace at Havre des Pas - fighting at the Lido with another young man.  You pleaded guilty to breach of the peace by fighting on 19^th November 2020. 

7.        Five days after than on 23^rd May you, Y, were driving a moped carrying Z as a pillion passenger.  You were seen to accelerate and cross over two lines of traffic near the hospital without indicating and, at the end of Gloucester Street, you swerved round a stationary vehicle and went through the red traffic lights.  This could have led to a very serious accident.  Later you were seen on CCTV turning left into Conway Street and you put your foot down in order to stop yourself from falling off.  You were arrested the following day at your home.  You only had a provisional licence and were not entitled to carry a pillion passenger.  You were also in breach of your bail conditions requiring you not to have contact with Z.  You pleaded guilty to careless driving and connected offences on 19^th November 2020. 

8.        Between 27^th May and 9^th June 2020, Z, you attempted to import a Class A drug, LSD, into the Island.  LSD is a very dangerous drug and can lead to appalling effects on young people and all people who take it.  The envelope was intercepted in Berkshire addressed to you, and contained LSD valued at between £200 to £300 in Jersey.

9.        On 9th June 2020 the police carried out a search at your home address and an examination of your laptop followed and which showed that you had investigated buying LSD via the dark web and for that purpose you had to install special software.  The police were unable to access your iPhone and asked you to provide your pin number as they routinely do in this sort of case.  You quite unreasonably refused to do so and on 24^th June the police attended your home and served you with a notice under the Regulation of Investigatory Powers (Jersey) Law 2005 requiring you to provide your passwords to you iPhone and your laptop.  You refused to do this and you are therefore guilty of an offence which you accepted by your plea on 19^th November 2020.  It is a serious matter to refuse to provide the police details of your access codes when they are investigating this sort of criminal offence.

10.      On 29^th June 2020 both of you, Z and Y went to Morrisons in Castle Quay.  You, Z, stole a bottle of gin and you Y were acting as lookout.  Y, you denied the offence when you were interviewed by the police, both of you pleaded guilty on 19^th November 2020. 

11.      At the time of much of this offending you, Z, were the subject of a 9 month Probation Order imposed by the Magistrate on 3^rd December 2019, for offences of larceny, malicious damage, possession of cannabis and possession of an offensive weapon.  You had already breached the order by offending on 4^th January 2020, by assaulting a police officer and engaging in disorderly conduct. 

12.      The offensive weapon that you had with you that day was a knuckle duster and we revoke that probation order today.  We note from your antecedents that in addition to the matters we have referred to, prior to committing the offences that you were convicted of on 3^rd December, 2019 only 4 months before on 6^th August, 2019, you were convicted of grave and criminal assault, common assault and attempted larceny.

13.      You, Y , have no criminal convictions prior to committing this spree of offences but have three Parish Hall appearances recorded in relation to you.

14.      As to the offences committed on 12^th May 2020, during the afternoon of that day a 14 year old boy contacted you, Y, on Snapchat asking if he could purchase some cannabis from you.  You said that you could not but knew someone who could, and by someone you meant Z.  Z  joined the 14 year old on Snapchat and there was an exchange relating to drugs. 

15.      Whilst this exchange was taking place, the 14 year old's older brother, B, who is in his early 20s, noticed his brother was behaving furtively on his mobile phone, took the phone from him and continued the exchange with Z .  He told the jury he did this because he was concerned that his younger brother had been using cannabis and wanted to establish where he was getting it.  He decided to meet the suppliers in order to provide evidence of the exchange to the police. 

16.      Z, you agreed to supply 32 grams of cannabis at £18 per gram and agreed to meet at St Lawrence football pitch car park and you told your customer to make sure he was alone. 

17.      In fact, you did not intend to supply any drugs, your plan was to steal the cash and make off.  This was a joint enterprise, a joint plan agreed between the two of you.  On the jury's unanimous verdict, part of that plan involved the use of a knife which you Z, were prepared to use if necessary, and you Y, knew that the knife was part of your joint plan. 

18.      B travelled to the St Lawrence football pitch with his younger brother in his truck.  When he arrived, he asked his younger brother to hide out of sight which he did.  Shortly afterwards you arrived on your mopeds.  Z, you got off your moped and walked towards the truck.  Y, you remained a short distance away.  You told the police you were there to provide backup if anyone "went for" your friend. 

19.      B remained seated in the driver's seat of his truck, with his mobile phone between his legs so as to take a picture of the drugs being handed over. 

20.      Z, you opened the passenger door of the truck and leaned in.  You told B to count out the money to pay for the drugs.  He did so.  When he counted out £380, you leaned forward and snatched the cash.  On B's evidence, after the cash had been taken, you then produced a long kitchen knife with the blade showing in order to prevent him from taking the cash back.  The questions asked by the jury during the trial were consistent with them struggling to determine whether or not the knife was produced at the time the money was taken, which is what was required to establish robbery, or shortly thereafter. 

21.      We agree with the Crown that there is no other sensible basis for sentencing you and that is the basis upon which you are sentenced, having regard to the verdicts which the jury did return, the way in which the case was put, the questions the jury asked and the fact that they were ultimately discharged from reaching a verdict on the count of robbery.  So, to be clear, you are both being sentenced on the basis that after the cash had been taken you did, Z, produce a kitchen knife with the blade showing in order to stop B from taking the cash back.

22.      After you took the cash, Z ,you ran to your moped.  B got out his van in order to give chase and recover his money.  Between you Z and B was your moped.  You made thrusting movements with the knife towards B's chest.  He kicked over your moped in order to put space between himself and you Z.  He was heard to shout something about a knife at this stage which was heard by a wholly independent third witness.

23.      Y, you were now on your moped ready to make a getaway and indeed act as backup as had been planned if things went wrong.  You began to drive your moped out of the car park.  Z, you were still carrying the knife in your right hand (as observed by an independent eyewitness).  You followed and managed to get on the bike so as to evade the older brother, who was now chasing you having taken a metal shovel from the rear of his truck. 

24.      One witness saw Z, still holding the knife in your right hand as the moped sped past her and onto the main road towards St Lawrence Parish Hall. 

25.      In evidence, Z, you said that you disposed of the cash shortly thereafter to someone who you were not prepared to name.  We note you gave a different account in the papers we have seen today.

26.      In respect of the conviction of you both by the jury, on the count of the possession of an offence weapon, the jury were sure, and had to be sure in order to convict you, that you Z, carried a kitchen knife to the scene intending to use it to cause injury to a person if necessary, and that you, Y, were aware that Z had the knife with him and knew what his intention was. 

27.      This was a joint plan to steal, and if necessary, to do so at knife point.

28.      When you were arrested, Z, you made no comment.  Y, you initially said you had been at your girlfriend's house and later on you did say that B's younger brother had got in touch with you in order to buy cannabis; that neither of you had cannabis to supply and that you went to the football pitch for money and that you had attended as back-up and were going to get involved if anyone went for Z. 

29.      The jury convicted you both as we have said of the offence of possession of an offensive weapon; and convicted you, Y, of larceny.  You Z, had already pleaded guilty to larceny but on a basis that was rejected by the Crown and indeed rejected by the jury as you did not accept that you used a knife for the purpose of that basis.  Accordingly, little credit can be given to you for your guilty plea in respect of larceny as the basis of that plea was rejected by the jury.

30.      We have listened to what has been said on your behalf today.  We emphasise that you are not being sentenced for robbery because you were discharged from that offence in these proceedings. 

31.      This was an extremely serious offence of larceny, and the jury were sure that you jointly planned to take the knife for the purpose of stealing from a total stranger, who at least one of you believed to be a 14 year old child, and that in a public place.  The knife was produced and brandished at the scene, and we agree that there was certainly some planning which proceeded this offence which is an aggravating feature although we accept that that planning could not have taken more than half an hour or so.  The offence for which you were convicted by the jury shares many of the features of a knife-point robbery, albeit the aspect of the offence whereby a victim was placed in fear in order to hand over the property is absent. 

32.      We note the authorities provided by the Crown and we agree that on a plea of guilty to robbery, the offence even allowing for your age would have resulted in a sentence of approximately 3 years' Youth Detention.  

33.      We take into account all that has been said on your behalf by counsel, the extensive and very helpful report prepared by the Probation Officer, we take into account the fact that you both have supportive family members and you have both stayed out of trouble since these offences and the Court hopes that both of you have a promising future ahead of you.  We do unfortunately note that you both still deny the presence of the knife which does you no credit.

34.      Z, we have considered the provisions of Article (4)(2) of the Criminal Justice (Young Offenders)(Jersey) Law 2014 ("the Law") in particular:

"(2)     A court shall not pass a sentence of youth detention unless -

...

(b)       ..., it considers that no other method of dealing with the person is appropriate because it appears to the court that -

(i)      the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them,

(ii)      only a custodial sentence would be adequate to protect the public from serious harm from the person, or

(iii)     the offence or the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified"

35.      We agree that this offence and the totality of the offending is so serious that only a custodial sentence can be justified and that a non-custodial sentence cannot be justified in your case.  We also agree that this is a serious offence for the purpose of Article 5 of the Law.  We note that larceny (this of course was a larceny with the use of a knife) is punishable in the case of a person aged 21 or over with imprisonment for 14 years or more.  We note and we are also of the opinion that none of the other methods in which the case may legally be dealt with are suitable in this case.  Accordingly, we may sentence you to be detained for such period, not exceeding the maximum term imprisonment for which the offence is punishable in the case of a person aged 21 or over.

36.      We sentence you as follows: and we do reduce the Crown's conclusions to take into account all that we have read and has been said on your behalf.  So, in relation to the offence of larceny from B, you Z, are sentenced to 18 months' Youth Detention with 12 months concurrent for importation of LSD.  The possession of an offensive weapon, 12 months', concurrent; failure to provide access codes, 12 months, concurrent; larceny of gin 1 month, concurrent; breach of the peace 1 month, concurrent. 

37.      We revoke the Probation Order and re-sentence you as follows: larceny, 1 month, concurrent, larceny from shop, 1 month concurrent; malicious damage, 1 month concurrent, possession of cannabis, 1 month concurrent, possession of an offensive weapon, 3 months, concurrent. 

38.      That makes a total of 18 month's Youth Detention.

39.      We order that the LSD be forfeit and destroyed.

40.      We order forfeiture and destruction of the iPhone and laptop.

41.      We notify you that you will be subject to supervision on your release from youth custody under Article 9 of the Law.

42.      Y, you have come within a "hair's breadth" of the same sentence, but you have no criminal convictions, and, as to the main offence, you were not the prime mover, you never possessed the knife, you did not receive the proceeds of the offence, you did not lie on oath during the trial and we note your voluntary engagement with the services including Probation since last year. 

43.      Accordingly we sentence you to, in respect of the larceny from B, 240 hours' Community Service and 18 months' probation; possession of the offensive weapon, 180 hours' Community Service and 18 months' probation; larceny of gin, 50 hours' Community Service; larceny from Iceland 50 hours; threatening words and behaviour 40 hours; threatening words and behaviour 40 hours; careless driving, 12 months disqualification and your licence endorsed.  Provisional licence offence and red-light offence, no separate penalty.

44.      That makes a total of 240 hours Community Service coupled with 18 months' probation.

45.      We do hope that neither of you ever appear in the Royal Court again. 

46.      In the circumstances, in view of the sentence we have passed in relation to you, Z, we do not think it appropriate to order any compensation.

Authorities

Regulation of Investigatory Powers (Jersey) Law 2005.  

Criminal Justice (Young Offenders)(Jersey) Law 2014