Jersey Unreported Judgments

Superior Number Sentencing - illegal entry and larceny

[2024]JRC046

Royal Court

(Samedi)

26 February 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen MBE, Dulake, Le Heuzé, Opfermann and Entwistle

The Attorney General

-v-

Luke James Oeillet

Craig Clayton Livesey

Sentencing by the Superior Number of the Royal Court, to which the defendants were remanded by the Inferior Number on 20 October 2023, following conviction by the Jury (Oeillet) and earlier guilty pleas the following charges:

Luke James Oeillet

1 count of:	Illegal entry and larceny (Count 1).
1 count of:	Attempted illegal entry (Count 2).

Age:  41.

Plea: Guilty to Count 1.  Not guilty to Count 2.

Details of Offence:

Count 1

A staff member at the Royal Hotel phoned the police to report that the till from the bar in the function room was missing.  On police arrival, it was established that someone had entered the bar area by forcing open one of the roller shutters, causing damage to the shutter and surrounding area in the process.  Bottles of spirits were missing, along with the cash drawer from the till which was empty at the time.  An empty bottle of vodka and smashed bottle of gin were found, which were both confirmed as missing.  Oeillet's fingerprints were found on the internal bar shutter surface and the vodka bottle.

Count 2

At around the same time as the call was received from the Hotel, police received another phone call from the resident of a nearby flat.  CCTV footage showed Livesey with his top over his head in the communal hallway outside the flat.  Oeillet followed shortly after and a 'shh' noise was heard. Oeillet was seen to look through a window of one of the flats, before walking towards the victim's flat.  The Defendants go back and forth from the flat door.  Livesey said 'stop being so loud' before going back outside and putting his top over his face again.  Oeillet said 'it's a bit awkward', which he maintained at trial was because he was urinating and Livesey was watching.

 

The victim received a notification on his phone alerting him to movement on the security camera outside his flat.  The victim looked towards the front door and saw Oeillet's fingers coming through his broken cat flap.  The cat flap had been broken from a previous break in carried out by Livesey in 2020.  The Victim purposefully and forcefully opened the door, bumping Oeillet in the head.  Oeillet was angry with the Victim for hitting him on the head and threatened him, but then left the area.  From the footage, the Victim identified Livesey as the man who had previously broken into his flat.  The police attended Livesey's home address approximately four hours later, where he was found with Oeillet.

 

At trial, Oeillet stated that he was drunk and went into the apartments to urinate.  He could not offer an explanation for why his hand was through the cat flap, other than the possibility that he had fallen over.

Details of Mitigation:

Guilty plea in relation to Count 1, however, this was not entered at the earliest opportunity.  Oeillet did not have the benefit of a guilty plea in relation to Count 2.

Previous Convictions:

116 previous convictions, five of which concerned break and entry or illegal entry.  Oeillet also has multiple previous convictions for theft offences.

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	4 years and 6 months' imprisonment.

Total:  4 years and 6 months' imprisonment.

Sentence and Observations of Court:

Conclusions granted.

Craig Clayton Livesey

1 count of:

Attempted illegal entry (Count 2).

Age:  41.

Plea: Guilty.

Details of Offence:

See Oeillet above.

Details of Mitigation:

Guilty plea, remorse, constructive use of time in custody.

Previous Convictions:

10 previous convictions, which included an offence for break and entry into the same victim's home in 2020.

Conclusions:

Count 2:

2 years and 9 months' imprisonment.

Restraining order sought for a period of 5 years in the following terms:

a.      That the Defendant be prohibited from approaching or contacting, directly or indirectly, the victim, other than any contact which is inadvertent or unavoidable.

b.      That the Defendant be prohibited from entering or loitering within 50 metres of the home of the victim.

Sentence and Observations of Court:

Conclusions granted.

L. Sette Esq., Crown Advocate.

Advocate G. F. Herold-Howes for Defendant Oeillet.

Advocate C. R. Baglin for Defendant Livesey.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Luke Oeillet, you are 41 years old, Craig Livesey you are 27 years old.  Both of you have a criminal record, including for offences of dishonesty.  You, Livesey, have a conviction for breaking and entry into the same property that you fall to be sentenced for today.  Oeillet, you have a mass of previous convictions for dishonesty - approaching 70, including: at this Court in 2004, 18 months for illegal entry and committing a crime and other offences of dishonesty committed at the same time; at this Court in 2007, 18 months for breaking and entry with intent to commit a crime and other offences committed at the same time; at this Court in 2011, 3½ years for breaking and entry with intent to commit a crime and other offences of dishonesty committed at the same time; in 2014 at this Court, 2½ years' imprisonment for breaking and entry with intent to commit a crime and other offences leading to a sentence of 4 years imposed on that occasion.

2.        Count 1 relates to Mr Oeillet's illegal entry and theft from the Royal Hotel.  Just after midnight on 23 September 2022, Mr Oeillet you entered illegally the hotel and broke into the bar area in a function room by forcing open roller shutters causing damage as you did so.  You stole the cash drawer (which was empty at the time), a bottle of vodka and a bottle of gin.  An empty bottle of vodka was located in the premises and a smashed bottle of gin in a lane near the hotel.  Mr Oeillet, you left your fingerprints on the shutters and the bottle of vodka.

3.        Shortly after that offence, a gentleman (the "Victim") was at home in his flat in nearby Midvale Road.  He had just been on holiday and he was up late playing a computer game.  It was just after midnight and he was alerted to movement caught by the security camera installed outside his ground floor flat.  This alert was connected to his mobile telephone and accordingly he knew something was happening at his front door.  He looked towards his front door and saw part of your hand Mr Oeillet through his cat flap.  The cat flap was broken from a previous breaking and entry and larceny carried out by you Livesey, at the Victim's home in July 2020 when it was occupied by the same man.

4.        CCTV footage from the night of the offence (of similar nature attached to a doorbell) shows that just prior to this time the two of you had entered the communal hallway leading to flats including the Victim's.  Mr Livesey, you had from time to time your top over your head to conceal your face and you were both moving around suspiciously.  You both passed through the open door to a toilet on the way to the Victim's flat which undermined your defence Mr Oeillet at trial - which was that you were looking for a toilet when committing this offence.

5.        As you approached the flat, Mr Livesey you were seen standing guard at the end of a paved area as a look-out whilst Mr Oeillet you, as was clear from the evidence that the jury heard, tried to gain entry first via the cat flap.

6.        The Victim's response to this was to forcefully open the door to his flat which he did, which had the effect of effectively throwing you Mr Oeillet to the floor.  The Victim was shouting wanting to know what you were doing at his front door and he said he had seen you put your hands in his door.  He asked you what you were doing there.  You shouted back at the Victim "what the fuck is going on here".  The Victim slammed the door and you both ran off.

7.        The police arrived and you were both found at Mr Livesey's house at 4am.

8.        Mr Livesey, when you were interviewed you made no comment but you did plead guilty at the first opportunity before the Magistrate's Court.  Your counsel said you were grossly intoxicated on the night in question but as you know that is no mitigation. 

9.        Mr Oeillet, in your police interview you said that you were drunk as well on the night.  You did not admit either offence in interview and you pleaded not guilty to both offences before the Magistrate - although you pleaded guilty to the Royal Hotel offence at Count 1 when you were first arraigned on indictment.

10.     As to the main count on the Indictment, Count 2, you maintained your plea of not guilty and in consequence a two-day jury trial took place. Your far-fetched story that you were looking for somewhere to urinate which was why you ended up outside the Victim's front door was unsurprisingly rejected by the jury.

11.     The case of AG v Da Silva [1997] JRC 218, to which counsel has referred, established that the benchmark sentence for illegal entry of an occupied dwelling at night without the benefit of a guilty plea is 4 years imprisonment.  This is a benchmark and circumstances may vary from case to case.  But burglary of an occupied home at night has always been regarded as a very serious offence.  It is a violation of the home of the victim householder and can lead to substantial fear and distress, and indeed it has done so in this case. 

12.     We have two statements from the Victim, the first of which was made recently on 17 February.  He says that he has been struggling with anger, anxiety and outrage since the incident.  He has known you Mr Livesey for 10 years and at one stage regarded you as a friend and does not understand why you have now on two occasions broken into or tried to break into his flat and targeted him.  He let you stay as a friend some time ago in the flat you have now tried to break into twice, which is how you found out where he lived.  He seeks a restraining order in relation to you which we will grant.  The first time you broke into his flat in 2020 the Victim was asleep and you stole a PlayStation and other items.  In the intervening period in 2021 there was an attempt to break into his flat which he reported to the police. In his other statement to the police (made for the purpose of the hearing today) he said that the crime that you two had committed had a detrimental effect on his life, affecting his sleep, his appetite and caused him stress and anxiety to the extent that he has moved house and is considering leaving the island.  His life has been turned upside down and his privacy feels violated.  He says about you Livesey, "I gave him a bed, roof and food but he betrayed me and my trust."

13.     So the fact that you targeted a flat in the middle of the night which Mr Livesey had broken into previously is, in our view, a substantial aggravating feature of this offence.  The other aggravating features that the Jurats have identified are:-

(i)        you were both drunk,

(ii)       the householder was confronted by Mr Oeillet who shouted and swore at him,

(iii)      the householder was badly affected by this incident.

(iv)     in the case of Mr Oeillet, your extensive previous convictons, and

(v)      in the case of Mr Oeillet, the fact that you had just committed another offence of dishonesty - and we note that in relation to that matter the Crown are seeking a concurrent custodial sentence. 

14.     We have read with care all the letters and references that have been written and we have listened to all that has been said by counsel.  We take into account that this was an attempted break in - which led to the confrontation to which we have referred.  We note the progress that you - in particular Mr Livesey - have made in custody.

15.     These offences were - for the reasons we have given - so serious that only a custodial sentence can be justified and Mr Oeillet in relation to you we grant the Crown's conclusions on Count 1.  The sentence is 18 months' imprisonment and on Count 2, 4½ years' imprisonment making a total of 4 years and 6 months' imprisonment.

16.     Mr Livesey in relation to you, two of the Jurats felt that they were able to make an exception in your case and pass a substantial community service order as a direct alternative to custody, but the majority felt that the offence was too serious and accordingly by three votes to two the Crown's conclusions have been granted and the sentence is 2 years and 9 months' imprisonment.

17.     We make a restraining order for 5 years in the terms sought by the Crown, but there will be an exception for any meeting arranged by the Probation Service at which you will be able to make some restorative justice apology to the Victim (if such a meeting is arranged in due course). 

Authorities

AG v Da Silva [1997] JRC 218. 

AG v Goncalves [2022] JRC 097

AG v Hall [2021] JRC 045

AG v Livesey [2020] JRC 257

AG v Keeble and Stearn [2020] JRC 172

AG v Frescata [2018] JRC 202

AG v Cox and Quinn [2020] JRC 139

AG v Goodchild [2020] JRC 050

AG v Moreira [2003] JRC 083A

AG v Da Silva [1997] JLR Notes 4a