Jersey Unreported Judgments

Inferior Number Sentencing - malicious damage - breaking and entering with intent to commit a crime.

[2013]JRC132

Royal Court

(Samedi)

28 June 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Le Cornu and Milner.

The Attorney General

-v-

Sergio Philip Costa Gouveia

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

1 count of:	Malicious damage (Count 1).
1 count of:	Breaking and entering with intent to commit a crime (Count 2).

Age:  23.

Plea: Guilty.

Details of Offence:

Count 1: The victim, who has two young children, was awoken by loud banging on the front door in the early hours of the morning.  The door damaged to the value of £180.

Count 2: The defendant revisited the same property the following day.  He smashed a front window using a hammer before climbing through the window.  No damage was caused to anything inside the flat and nothing was taken.  Blood was found on the bedding and the floor in the flat and later at the defendant's home.  Damage to the value of just under £500 was caused. 

In interview the defendant admitted offence but stated that he thought it was someone else's flat.  He appeared to believe that his behaviour would have been justified had he broken into the correct home - had it been the right flat he would have assaulted the "intended victim", who he refuse to name.  He stated that he still intended to seek him out and assault him. 

In breach of Magistrate's Court Probation and Communist Service Order for being drunk and disorderly. 

Details of Mitigation:

The Crown: Pleaded guilty.  Limited remorse as he appears to believe that his behaviour would have been justified had he broken into the correct home.  He had intended to apologise to the victim and offer to pay for the damage.  Cooperative with police.  Sober at the time of the offence. 

The Defence: Little control over life with no guiding figure, he cannot write and neither can his mother which is why there was no letter from her.  There was no intention to use hammer in assault.  It was the defendant's first time before the Royal Court. 

Previous Convictions:

24 previous convictions, including one for breaking and entering in 2005 when he was 15 years sold.  Offences include malicious damage, resisting arrest, drunk and disorderly and larceny. 

Conclusions:

Count 1:	3 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total: 2 years' imprisonment.

Magistrate's Court Probation Order be discharged and no separate penalty imposed.

Compensation Order sought in the sum of £665.86 if no custodial sentence imposed.

Sentence and Observations of Court:

The Court remained worried about the defendant's actions and recommended that he be psychologically assessed in prison. 

Conclusions granted.

No Compensation Order made.

Ms S. J. O'Donnell, Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for one count of breaking and entering into a ground-floor flat in Lewis Street, and one count of maliciously damaging the door to that same flat two days before.  CCTV footage shows the defendant approaching the flat on the afternoon of the 17^th January, 2013, at a time we think it would have been dark or getting dark, and using a hammer to smash the front window.  He then climbed into the flat through the window, leaving the hammer on the pavement.  About a minute later he was seen leaving the flat by the front door, picking up the hammer and walking away.  The flat is occupied by a tenant together with her two children but, very fortunately, they were out when this breaking and entering took place.  They were however in the flat in the early hours of the morning of the 15^th January, when the defendant maliciously damaged the front door, waking the tenant up.  Nothing was taken from the flat; it appears that the defendant mistook the flat as belonging to someone else with whom he had issues, and who he intended to assault.  Realising that he had got into the wrong flat the defendant left. 

2.        The defendant has a bad record, mostly alcohol-related, although alcohol was not involved in the breaking and entering, and is assessed at a high risk of re-offending.  He has breached Probation Orders on four occasions and has been in breach of a Community Service Order imposed in July of last year.  He was offered probation appointments whilst on bail for these offences, as an opportunity to him and, although he attended six appointments and has completed some offending behaviour work, he recently attended an appointment having consumed twelve bottles of lager.  The defendant has not had a proper job since leaving school and his life appears to be centred around activities in public houses and consuming alcohol. 

3.        The fact that the defendant's motivation in breaking and entering into this flat was not larceny, does not, in our view, detract in any way from the seriousness of the offence.  As Lord Bingham said in the English Court of Appeal judgment in the case of R-v-Brewster [1998] 1 Cr App R 220:-

"The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a 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 where 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; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled."

4.        We disagree with the Crown that the defendants motivation in this case aggravates the offence of breaking and entering but, as we have said, in our view it remains a serious offence for which the guidance in the case of AG-v-da Silva 1997/218 applies and that case suggests a focal point of 2 years' imprisonment following a guilty plea to breaking and entering into an unoccupied dwelling house. 

5.        In terms of mitigation the defendant has pleaded guilty and he has been cooperative with the police.  He is still young and we commend him for the way he has dealt with the inheritance he received of £90,000, investing £80,000 of that in the payment of a deposit on a flat for himself and his mother.  We think he is due great credit for that and he has shown an element of remorse for these offences.  We have considered all of the mitigation put forward on his behalf by Advocate Landick but this is a serious offence for which a deterrent sentence is, in our view, necessary.  The homes of people in our community cannot be violated in this violent way. 

6.        We are therefore going to grant the conclusions of the Crown.  We are left however with a residual worry; much of the general past conduct of the defendant we have found difficult to understand and there seems to us to be something missing in our understanding of him.  We therefore strongly recommend that in prison he should be psychologically assessed and any recommendations implemented to the extent that they can in prison. 

7.        In relation to Count 1 you are sentenced to 3 months' imprisonment, on Count 2; 2 years' imprisonment, concurrent.  That makes a total of 2 years.  The Magistrate's Court Probation Order will be discharged with no separate penalty imposed and we are not going to make a Compensation Order. 

Authorities

R-v-Brewster [1998] 1 Cr App R 220.

AG-v-da Silva 1997/218.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey.

R-v-Edwards and Brandy (9.5.96) 96/0882/x3; TLR (1.7.96) 384.