Jersey Unreported Judgments

[2008]JRC182

ROYAL COURT

(Samedi Division)

24^th October 2008

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Le Brocq and Morgan.

The Attorney General

-v-

Anthony David Cameron

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

2 counts of:

Illegal entry and larceny.  (Counts 1 and 2)

Age:21.

Plea: Guilty.

Details of Offence:

Defendant arrived in Jersey from Liverpool and started work as a chef at Waterfront.  Three days later, after an all night session of binge-drinking, he went back to premises in St. Helier where he was staying with a friend at about 07.30am.  He went into the wrong flat on the ground floor.  He realised that he was in the wrong flat, but saw a bicycle stored in the communal area, stole it and hid it in his friend's bed under the duvet.  He then entered the upstairs flat, disturbing a 25 year old female occupant who was asleep in her bed.  She saw he had her camera and some money in his hands.  She challenged him, he put the items down, she tried to restrain him but fell over and the defendant made good his escape out of the open window, jumping down onto the pavement below.  The bicycle was later recovered but the set of keys stolen from the occupant of the top flat were not recovered, having been thrown into a bin by the defendant after leaving the premises. 

Details of Mitigation:

Defendant pleaded guilty in Magistrate's Court whilst still under 21.  He was indicted 2 days after his 21^st birthday and pleaded guilty.  No previous convictions.  Good references.  Wished to stay in Jersey and had offer of accommodation and job; supportive family in Liverpool.  Remorse.  5 months 22 days on remand at HMP spent constructively although unable to work in kitchen because Young Offender and in separate wing. 

Previous Convictions:

None.

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total: 2 years' imprisonment.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order, or 12 months' imprisonment in default.
Count 2:	180 hours' Community service Order, or 12 imprisonment in default, concurrent.

Total: 180 hours' Community Service Order, or 12 months' imprisonment in default.

Followed R v Ghafoor approach and sentenced defendant as if Article 4 of 1994 Law applied.

S. Sharpe, Crown Advocate.

Advocate L. K. A. Richardson for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This defendant has pleaded guilty to two offences of illegal entry and larceny.  The more serious offence involved the illegal entry of a flat where a young woman was sleeping.  She was awoken by the intruder and there were exchanges before the defendant made good his escape. 

2.        The defendant was born on 24^th September, 1987.  He appeared in the Magistrate's Court on 30^th June, 2008, and pleaded guilty to the two offences which now are contained on the Indictment.  At the time of the offending he was therefore under 21, and indeed he was also under 21 when he first pleaded guilty before the Magistrate.  The Magistrate however, remanded him for trial by this Court and when the Indictment was made on the 26^th September, he had just passed his 21^st birthday.  Both the Crown Advocate and defence counsel agree that the proper interpretation of the relevant provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994 involve treating this defendant as an adult offender on the basis that he was 21 at the time he pleaded guilty on Indictment. 

3.        Defence counsel has however drawn our attention to the case of R v Ghafoor [2002] EWCA Crim 1857 where the Court of Appeal in England considered the equivalent provisions under English Legislation.  Lord Justice Dyson stated at paragraph 31:-

"The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of the conviction should now be clear.  The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence.  It has been described as "a powerful factor".  That is for the obvious reason that as Mr Emerson points out, the philosophy of restricting sentencing powers in relation to young offenders, reflects both a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and b) the recognition that in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults.  It should be noted that the starting point is not the maximum sentence that could lawfully have been imposed but the sentence of the offender would have been likely to receive".

4.        We accept that the approach set out by Dyson LJ in England is the approach which we should also adopt in this Court.  We think, therefore, that we have to approach the sentencing of this defendant on the basis that Article 4 of the Criminal Justice Young Offenders)(Jersey) Law 1994 does apply because it would have been applicable at the date of the commission of the offence.  Article 4(2) of that law provides that:-

"A Court shall not pass a sentence of youth detention unless it considers that no other method of dealing with the person is appropriate because it appears to the Court that

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

5.        We have to ask ourselves whether the illegal entry of this young woman's flat at a time when she was asleep is such a serious offence that a non-custodial sentence cannot be justified.  To enter someone else's property when that person is present is a potentially terrifying experience for the householder.  There is no doubt that in this case it was a terrifying experience because the victim was asleep and was awoken by the intruder; indeed she was still trembling with shock and fear when the Police arrived to take her complaint.  We have enormous sympathy for her. 

6.        The Crown Advocate was perfectly justified in taking the view that, on the face of it, the offending was so serious that a non-custodial sentence could not be justified.  There is however, considerable mitigation available to the defendant.  He has expressed remorse for his offending, he pleaded guilty at the first opportunity and was co-operative with the Police and the investigating officers.  He has written letters to the victims of his offending apologising for his conduct.  Most importantly perhaps, he is a first offender.  He has a job and accommodation available to him when he is released from prison and he is said by the probation officer to be at low risk of re-offending.  We also take account of the fact that he has served the equivalent of 5½ months' imprisonment whilst on custodial remand.

7.        Cameron, we have considered your case with great care and as we have said we think that the Crown Advocate was perfectly justified in moving for a custodial sentence.  You deserve to go to prison for what you did to that young woman in particular.  However, on balance we are going to take the view that the mitigation available to you allows us to avoid imposing a custodial sentence, but I want you to know that you have escaped custody by a whisker.

8.         We hope that you will take advantage of the sentence which the Court is about to impose and will not in the future engage in binge drinking because it is obviously capable of leading you into very great trouble.  We are going to sentence you on each of the 2 counts of the Indictment to 180 hours of community Service to be performed to the satisfaction of the Community Service Organiser.  We state that the alternative is a sentence of 12 months' imprisonment. 

Authorities

Criminal Justice(Young offenders)(Jersey) Law 1994.

R v Ghafoor [2002] EWCA Crim 1857.

AG-v-Da Silva [1997] JRC 218.

AG-v-Moreira [2003] JRC 083A.

AG-v-Gaffney [1995] JRC 101.