Jersey Unreported Judgments

Breaking and entry, assault and malicious damage.

[2023]JRC253

Royal Court

(Samedi)

15 December 2023

Before     :

A. J. Olsen, Esq., Lieutenant Bailiff, and Jurats Austin-Vautier and Entwistle

The Attorney General

-v-

Aleksej Vladimirov

And

Dmitrijs Kuzmins

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

Dmitrijs Kuzmins

1 count of:	Break and entry (Count 3).
3 counts of:	Assault (Counts 1, 4 and 5).
1 count of:	Malicious damage (Count 2).

Age:  34

Plea: Guilty.

Details of Offence:

At approximately 3am on 6 September 2023, the Defendants were in the Parade.  Victim 1, who was unknown to the Defendants, walked past and asked them for paper to roll a cigarette.  Kuzmins asked Victim 1 if he could borrow a lighter and Victim 1 agreed.  Kuzmins refused to give the lighter back and Victim 1 pulled the lighter out of his hand.  Kuzmins then punched Victim 1 to the side of his face.  Victim 1 did not suffer any injuries (Count 1).

 

Kuzmins then used a whisky bottle to smash the windscreen of a van which was parked nearby (Count 2).

 

The Defendants entered a block of flats, which they had seen Victim 1 enter.  The Defendants had come to a false and unsupported conclusion that Victim 1 had stolen Kuzmins' mobile phone.  Acting together, one of the Defendants kicked open the door to a random flat within the building (Count 3), which was occupied by Victims 2 and 3.  Victim 2 was on the sofa when one of the Defendants punched him to the side of his head.  Victim 2 put his arm up in defence, but the Defendants kneed and punched him.  The Defendants dragged Victim 2 across the floor.  Vladimirov held Victim 2 down by his neck, whilst Kuzmins kicked him (Count 4).  Victim 2 told Victim 3 to call the police.  As she went to do so, Kuzmins approached her and grabbed her by the arm (Count 5). 

 

The Defendants were intoxicated at the time.

Details of Mitigation:

Guilty plea to the break and entry and the assault on Victim 3 on first appearance.  Remaining guilty pleas entered three weeks after first appearance.

Previous Convictions:

No previous convictions.

Conclusions:

Count 1:	2 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent to Count 1.
Count 3:	3 years and 6 months' imprisonment, consecutive to Count 1 and 2.
Count 4:	10 months' imprisonment, concurrent to Count 3.
Count 5	6 months' imprisonment, concurrent to Count 3

Total:  3 years and 8 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	4 weeks' imprisonment.
Count 2:	2 weeks' imprisonment, consecutive to Count 1.
Count 3:	3 years' imprisonment, consecutive to Count 1 and 2.
Count 4:	15 months' imprisonment, concurrent to Count 3.
Count 5:	1 month's imprisonment, concurrent to Count 3.

Recommendation for deportation made.

Aleksej Vladimirov

1 count of:	Break and entry (Count 3).
2 counts of:	Assault (Counts 4 and 5).

Age:  30

Plea: Guilty.

Details of Offence:

See Kuzmins above. 

Details of Mitigation:

Guilty pleas only entered more than three weeks after first appearance.

Previous Convictions:

No previous convictions.

Conclusions:

Count 3:	3 years and 6 months' imprisonment, concurrent.
Count 4:	10 months' imprisonment, concurrent to Count 3.
Count 5:	6 months' imprisonment, concurrent to Count 3.

Total:  3 years and 6 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 3:	3 years' imprisonment, concurrent.
Count 4:	15 months' imprisonment, concurrent to Count 3.
Count 3:	1 month's imprisonment, concurrent to Count 3.

Total:  3 years' imprisonment.

Recommendation for deportation made.

Ms C. L. G. Carvalho, Crown Advocate.

Advocate A. E. Binnie for Kuzmins.

Advocate E. L. Burns for Vladimirov

JUDGMENT

THE Lieutenant BAILIFF:

1.        During a period of time that we understand could have been as brief as ten minutes during the early hours of the morning of Tuesday 6 September last, the Defendants embarked upon a drunken and disgraceful spree of serious and violent offending. 

2.        Four different victims were involved.  All were unknown to the Defendants, and neither Defendant was known to any of the victims.  Kuzmins assaulted Victim 1 by punching him in the face for no reason whatsoever, then maliciously damaged a motor vehicle, again for absolutely no reason. 

3.        They both then went to the home of Victim 2 and Victim 3, violently kicked in the front door and proceeded to assault them both in a particularly nasty and evidently terrifying way.  We are told that all this arose out of a drunken misapprehension that someone had stolen Kuzmins's mobile telephone, but the fact is that no one had.  An ironic aspect of this case is that Kuzimins had his phone with him when the break in occurred and indeed he left it behind in the flat when the Defendants left.  So, as well as being very serious, all this offending was an exercise in futility - total futility, explicable only by the Defendants' state of gross intoxication.  As the Crown Advocate has rightly pointed out, intoxication is an aggravating factor.

4.        This was on any view disgraceful behaviour, but the prosecution has correctly identified the breaking and entering and the assaults on victims 2 and 3 as the most serious offending. 

5.        In the English Court of Appeal case of R v Brewster and Ors; Lord Bingham said this:

"...domestic burglary is and always has been regarded as a very 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 when 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. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night..."

6.        The Lord Chief Justice, as he then was, also adverted elsewhere in the judgment to the fact that a domestic burglary is more serious if the perpetrators act as a group.  In our judgment the two Defendants acting in concert consisted of a group.  In addition, said the Lord Chief Justice, "it is more serious if force is used or threatened".  In this case it was not even threatened - the Defendants proceeded to use force immediately.  One of the victims was asleep when the assaults commenced.

7.        In the local case of Attorney General v Allo and Collins the Superior Number of this Court was sitting as a Court of Appeal.  Sir Frank Ereaut, the then Bailiff, emphasised that distress to the occupants of a home that is burgled is an important factor to be taken into account.  He said this:

"It is common knowledge that breaking into a private dwelling has a most distressing effect invariably upon 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."

8.        In our judgment those words from the mouth of the former Bailiff fifty years ago resonate down the decades with as much force and clarity now as they did then.  Nonetheless we wish to restate and somewhat amplify that message into six propositions:

(i)        If the victim of a burglary experiences distress, that is an aggravating factor.

(ii)       If he or she experiences extreme distress, for example by reason of unusual vulnerability or sensitivity, that would normally be a seriously aggravating factor.

(iii)      If the victim of a burglary experiences fear, that is a seriously aggravating factor.

(iv)     If he or she experiences extreme fear, that is a very seriously aggravating factor.

(v)      If the victim of a burglary is assaulted in the course of the burglary, that will always be a very seriously aggravating factor.

(vi)     These factors are pre-eminent.  They will generally outweigh any personal mitigation that is available to a Defendant being sentenced for burglary, save where there are exceptional circumstances. 

9.        Whilst we have not seen any Victim Impact Statements, it is clear on the facts that both Victim 2 and Victim 3 were deeply distressed and very frightened.  We wish to emphasise what a terrifying experience this must have been for them.  Victim 2 was very angry about what had been done to them.  Victim 3 told the police that she no longer feels safe in her own home. 

10.     We note that both Defendants were wearing trainers when Victim 2 was being kicked.  The kicking of a victim with a shod foot is equivalent to an assault with a weapon - see AG v Nolan [2002] JLR Note 31, and in our judgment the Defendants are fortunate that the Crown did not indict for grave and criminal assault.  But it did not, so we approach sentencing on the basis that the common assault on Victim 2 was one of a high degree of seriousness.  

11.     It appears that none of the three assault victims was seriously injured, physically at any rate, but we do not regard this as a mitigating factor of any significance.  Certainly, in the case of Victim 2, the fact that his injuries were not more serious is simply a matter of good fortune. 

12.     Both Defendants have the benefit of substantial mitigation.  We treat them both as being of previously good character.  We take into account their pleas of guilty, and in the circumstances that have been explained to us by defence counsel, we have allowed full credit for those pleas. 

13.     The Pre-Trial Reports paint pictures of hard-working, responsible family men, each with a good work ethic.  We have read with care their letters and the references that have been provided to us.  They are very positive.  We accept that both Defendants are remorseful and deeply regret their actions.  We also take into account the effect that custodial sentences will have upon their respective families.  Accordingly, we propose to reduce slightly the overall conclusions moved for by the Crown. 

14.     As regards Count 4 this was a nasty, sustained attack, including kicking with a shod foot and we consider a sentence of ten months to be inadequate to reflect its seriousness; but as this will be a concurrent sentence it makes no difference to the overall period of incarceration.  As regards Count 5, the assault on Victim 3, we do not consider that the nature of this assault warrants a sentence of 6 months' imprisonment, but again as this is a concurrent sentence it will make no difference to the overall length. 

15.     Mr Kuzmins, Mr Vladimirov, we now address you directly.

16.     The lives of several people were changed in consequence of those terrible, violent and chaotic 10 minutes last September.  Most of all, your lives and those of your immediate families; and all this because of your grossly excessive consumption of alcohol.  This is a state of affairs that the Court as currently constituted considers to be a very sad one.  We take no pleasure whatever in sending people like you to prison, but you have to be punished for what you did, and you seem to accept that.  We can only express the hope that you have learned your lesson and that you will use your time in prison wisely and well.

17.     Bearing the principle of totality in mind the Crown submits that the correct approach to adopt in this case is to aggravate the sentence for breaking and entering to reflect the assault and to impose concurrent sentences in respect of the assaults on Victim 2 and Victim 3.  In our judgment that approach is correct. 

18.     Applying the fifth principle that we enunciated earlier, the fact that you assaulted the victims of your breaking and entering offence is a seriously aggravating factor, and that is reflected in the sentence that we are about to pass.

19.     In our judgment Counts 1 and 2 should attract consecutive sentences to mark the distinction between the two Defendants and to ensure that Mr Kuzmins's additional offences are reflected in the overall sentence. 

20.     The sentences are as follows:

(i)        Count 1, 4 weeks' imprisonment. 

(ii)       Count 2, 2 weeks' imprisonment, consecutive.

(iii)      Count 3, Mr Kuzmins, 3 years' imprisonment consecutive to Counts 1 and 2.  Mr Vladimirov, 3 years' imprisonment.

(iv)     Count 4, Mr Kuzmins, 15 months' imprisonment, concurrent to Count 3.  Mr Vladimirov, 15 months' imprisonment, concurrent to Count 3.

(v)      Count 5, Mr Kuzmins, 1 month's imprisonment, concurrent to Count 3.  Mr Vladimirov 1 month's imprisonment, concurrent to Count 3.

21.     This gives a total of 3 years and 6 weeks' imprisonment in the case of Mr Kuzmins and 3 years' imprisonment in the case of Mr Vladimirov.  

22.     As regards deportation, the application for a recommendation is not opposed.  The two-part test set out in Camacho is satisfied in each case, and we therefore make a recommendation for the deportation of both Defendants when they have served their sentences.  

Authorities

 

R v Brewster [1998] 1 Cr App R (S) 181.

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

AG v Nolan [2002] JLR Note 31.

AG v Goncalves [2022] JRC 097.

AG v Brown [2021] JRC 003.

AG v Furlong and Furlong [2019] JRC 089.

AG v Duffy [2017] JRC 131.

AG v Mills [2013] JRC 155A.

Graham v AG [2013] JRC 014.

Camacho v AG [2007] JLR 462.

AG v Cummins [2006] JRC 070.

Harrison v AG [2004] JLR 111.

AG v Moreira [2003] JRC 083A.

AG v Da Silva [1997] JRC 218.

AG v Da Silva [1997] JLR Notes-14a.