Jersey Unreported Judgments

Inferior Number Sentencing - illegal entry and larceny - larceny.

[2012]JRC118

Royal Court

(Samedi)

15 June 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Liston

The Attorney General

-v-

Renato Joel Da Cunha

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

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

Age:  22.

Plea: Guilty.

Details of Offence:

The defendant had arrived in Jersey in April 2010.  In October 2010 he formed a relationship with the victim who lived in a flat with her six year old son.  The defendant moved in with the victim but the relationship failed due to his aggressive and controlling behaviour.  The police had been called on several occasions and the defendant had been escorted from the premises.  The defendant refused to accept that the relationship was over and continued to harass the victim.  At the time of offending the defendant was no longer living with the victim. 

During the early hours of 3^rd February, 2012, the defendant entered the victim's home via the kitchen window.  The victim woke to find the defendant standing over her bed and was terrified.  He took the house and mobile telephones from the victim to prevent her calling for assistance.  The defendant remained in the flat for over an hour talking to the victim; alternating between apologising to her, asking her to take him back, and making threats to kill her.  The victim's son entered the room and the defendant spoke with him before allowing him to join his mother.  The defendant left taking the victim's purse containing her bank cards and driving licence, both sets of house keys, car keys, garage door fob and both telephones (Count 1). 

The defendant, who knew the victim's PIN codes, then went to the nearest ATM and using the stolen bank cards withdrew £340 from the victim's bank accounts (Count 2). 

Details of Mitigation:

Guilty plea, residual youth, no previous convictions, and partial co-operation with the police. 

Aggravating Factors:-

The defendant's actions were part of a course of behaviour designed to put the victim in fear.  The offence took place at night.  The victim's six year old son was disturbed.  Element of premeditation.  Lack of remorse or victim empathy as identified in the probation report.  Victim sole provider for herself and son, therefore theft of money would have a significant impact. 

Previous Convictions:

Parish Hall caution for possession of cannabis - treated as being of previous good character. 

Deportation:

The Crown considered the matter of deportation.  The defendant had been resident in the Island for a short time; he had a poor work record and had committed crime.  He had no dependants and his only family in the Island was a brother who had been resident prior to the defendant coming to Jersey.  The Crown submitted that the defendant's continued presence was detrimental to the Island and that a recommendation for deportation would impact solely upon him. 

Conclusions:

The Crown had regard to the circumstances of the offending, all the background factors and the content of the probation report and moved:-

Count 1:	2½ years' imprisonment.
Count 2:	6 months' imprisonment, consecutive.

Total: 3 years' imprisonment.

Recommendation for Deportation sought.

Sentence and Observations of Court:

Count 1:	2 years' imprisonment.
Count 2:	6 months' imprisonment, concurrent.

Total: 2 years' imprisonment.

Recommendation for Deportation made.

R. C. P. Pedley, Esq, Crown Advocate.

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

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Da Cunha, you are here to be sentenced for two counts, one of larceny with illegal entry and one of larceny.  At 7 o' clock in the morning you entered the victim's home through a window; it was dark and she woke up to find you standing over her bed.  In her statement she says "I've never been so petrified in all my life".  You stole a number of items including, among other things, her bank cards and her mobile phone.  You knew her pin number and you used that to take £340 out of her account which was money she could ill afford to lose.  All these facts are accepted.  These are serious offences. 

2.        The Court has a policy of custodial sentences involving entry into domestic premises at night or in the early hours of the morning.  This is long-standing.  As long ago as 1983 the Bailiff said this in the case of AG-v-Allo and Collins [1983] J J 85

"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.  We believe that this 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 is an aggravating factor. "

 So in our view a custodial sentence is right in principle. 

3.        We do think however that the conclusions which the Crown has moved for can be reduced.  First of all we think that the offences should be treated concurrently and in any event we are taking account of some mitigating factors which I will now mention.  You are entitled to credit for your guilty plea on Indictment.  We do see it as one incident and we have no record of any previous convictions.  We agree that this should be treated as unplanned and that the majority of items have been returned and we have taken account of the fact that your judgement was affected by the breakdown in the relationship and particularly we take that into account because of your relative youth, the age of 22. 

4.        So for those reasons we are going to impose a sentence of 2 years' imprisonment on Count 1 and 6 months' imprisonment on Count 2 which will run concurrently, making a total of 2 years' imprisonment. 

5.        The Crown also asked us to consider the question of a recommendation for Deportation.  Following the legal authorities there are two questions we have to ask ourselves; the first is whether your continued presence in the Island is detrimental; and the second is whether there are any Article 8 Convention Rights which we should take into account if we do think the continued presence is detrimental.  The Court considers that your continued presence in the Island is detrimental as a result of the offending which you have committed and the characteristics which you have demonstrated, and we have taken into account that you have been in the Island a relatively short time.  There are no competing Article 8 Convention rights which must be taken into account.  You have therefore abused the hospitality which the Island offers to non-nationals and in the circumstances we are going to make a recommendation for deportation to the Lieutenant-Governor which he will consider towards the end of your sentence. 

Authorities

AG-v-Allo and Collins [1983] JJ 85.

AG-v-Da Silva 1997/209a.

AG-v-Da Silva 1997/218.

AG-v-Falle 2000/193.