Jersey Unreported Judgments

Inferior Number Sentencing - obstructing a police officer - drugs - possession - Class C - breaking and entry and larceny.

[2015]JRC139

Royal Court

(Samedi)

26 June 2015

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Ramsden and

The Attorney General

-v-

Vitor Goncalves Da Costa

Sentencing by the Inferior Number of the Royal Court, after conviction at Assize trial on 7^th May, 2015, and following guilty pleas to the following charges:

1 count of:	Obstructing a police officer (Count 1).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of drugs (Jersey) Law 1978 (Count 2).
1 count of:	Breaking and entry and larceny (Count 4).

Age:  32.

Plea: Guilty to Counts 1 and 2. Not guilty to Count 4.

Details of Offence:

Police attended Mulcaster Street after police CCTV showed two males fighting.  The defendant was found at the scene in a drunken state.  He had alleged that somebody had stolen his sunglasses but it became apparent from enquiries that the glasses belonged to somebody else.  He remained argumentative and abusive.  He was told to leave the area but refused to do so and was arrested (Count 1). 

The defendant was arrested for a matter which was not proceeded with.  Whilst detained at Police Headquarters he was searched and a blue plastic bag containing 13 strips of pills were found in his underwear.  They contained 107 Diazepam tablets with a street value of £107.  The Crown accepted they were for the defendant's personal use (Count 2). 

La Pause Flats is an apartment block consisting of 6 flats but in December 2014 only 3 were occupied.  The defendant had been permitted to stay in one of those flats by a friend.  The occupant of Flat 3 returned home after a day's work to find that the front door to his flat had been damaged around the lock area and that the sum of £154 in cash had been stolen from a drawer.  On examination the defendant's fingerprint was found on top of the drawer from which the money had been stolen.  He was arrested and interviewed under caution.  He denied having ever entered Flat 3 and denied that his fingerprints would be found there.  He confirmed that he knew the occupant of Flat 3.  When the fingerprint evidence was put to him he then claimed that he had previously been in the flat smoking a joint with the occupant.  The occupant confirmed that he knew the defendant and during the four months that he had lived at La Pause he had never allowed the defendant into his flat.  The defendant had never been in the building with his permission. 

The defendant maintained his position that he had been in Flat 3 with the owner's consent to smoke a cannabis joint at trial but he did not give evidence on his own behalf.  He was convicted by a majority verdict.  He was acquitted of Counts 5 and 6. 

The Crown had regard to the guideline case of AG v Silva in relation to the breaking and entry and larceny offence.

Details of Mitigation:

The Crown

Guilty pleas entered on Indictment on Counts 1 and 2.  A not guilty plea on Count 4 and no remorse as defendant maintained his innocence in Social Enquiry Report.  The defendant had initially when he came to the Island maintained regular employment but more recently had led a chaotic lifestyle due to his history of substance misuse.  He was able to refrain from drugs whilst in custody but struggled to maintain the position when in the community.  Assessed as being at high risk of re-conviction.  The Crown had regard to all the information contained within the papers when considering its conclusions. 

The Defence

The defendant apologised for his actions.  Whilst on remand he had reflected on his past and was now determined to make a fresh start and become a law abiding citizen.  Sought to distinguish guidance in AG v Da Silva as his case not as serious.  Time on remand used constructively.  Gaps in his offending.  Asked that case be dealt with by a Probation Order and/or Community Service Order to give him a last chance to show that he could to something constructive with his life.  The test for a deportation recommendation not fulfilled and asked for an opportunity to make a positive contribution.

Previous Convictions:

7 convictions for a total of 13 offences including illegal entry with intent to commit crime, possession of controlled drugs x 2, assault on Police, resisting Police arrest, common assault and shop-lifting.

Conclusions:

Count 1:	1 month's imprisonment,
Count 2:	1 month's imprisonment, concurrent.
Count 4:	2 years and 9 months' imprisonment, concurrent.

Total: 2 years and 9 months' imprisonment.

Forfeiture and destruction of drugs sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

The defendant to be sentenced for three charges all quite separate.  Guilty pleas entered to Counts 1 and 2 but not guilty to Count 4.  Had maintained not guilty plea at trial and clearly jury had not believed him.  No remorse as continued to maintain innocence.  The Court is faced with a serious offence where there is not guilty plea and no remorse.  The defendant did not have a good record.  Assessed as being at high risk of re-conviction.  The Crown's starting point of 3 years entirely correct.  Taking into account all the mitigation and all the reports and other documents before it the Court felt able to reduce the Crown's Conclusions.   A custodial sentence was inevitable. 

Deportation

The Court applied the well-established test.  Was wholly satisfied that the defendant's continued presence in the Island was to the detriment of the community.  The Court had given anxious consideration to the second limb of the test but concluded that there were no other persons whose interests would be adversely affected and that it was not disproportionate having regard to the defendant's ECHR rights.  The Court therefore recommended that the Defendant should be deported at the completion of his sentence.

Count 1:	1 month's imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 4:	2 years' imprisonment, consecutive to Count 1.

Total: 2 years and 1 month's imprisonment. 

Forfeiture and destruction of drugs ordered. 

Recommendation for deportation made. 

J. C. Gollop, Esq., Crown Advocate.

Advocate L. K. Helm for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced today for three charges, all quite separate.  The first charge is that you obstructed a police officer in the execution of his duties by refusing to obey his order; the second is the possession of a controlled drug, specifically 107 diazepam tablets with a street value of £107, and the third is one of breaking and entry and larceny of a dwelling. 

2.        You pleaded guilty to the first two charges but not guilty to the breaking and entry and larceny and you were tried before the Assize Court and were convicted of that charge.  During the course of your trial you maintained that the reason for your fingerprint being found in the victim's flat was because you had smoked cannabis there together.  Clearly the Jury did not believe you.  You demonstrate no remorse for this last charge as you continue to maintain your innocence. 

3.        In short, therefore, the Court is faced with the fact that firstly, in respect of the most serious count, you do not have the benefit of a guilty plea and you show no remorse.  Secondly, you do not have a good record with a number of relevant previous convictions including illegal entry on one occasion, and thirdly, you are assessed as posing a high risk of reoffending.  Accordingly, the Court believes that the Crown's starting position of 3 years is correct and that a custodial sentence is, in this case, inevitable. 

4.        We have however considered the mitigation available to you as put forward by your counsel, and all of the reports and the documents available to us and, taking all of that into account, we feel able to reduce the Crown's conclusions. 

5.        In our view, the correct sentence, taking all of the mitigation into account, but including our concern for the challenges faced by police officers in trying to police the streets of St Helier at night in difficult circumstances, the appropriate sentence is as follows:-

In respect of Count 1; 1 month's imprisonment, in respect of Count 2; 1 month's imprisonment, concurrent, and in respect of the breaking and entry and larceny; 2 years' imprisonment, the 2 years' imprisonment to be consecutive to the penalty on Count 1, making a total of 2 years and 1 month's imprisonment. 

6.        We also order the forfeiture and destruction of the drugs. 

7.        We now turn to the recommendation made by the Crown for deportation and we apply the well-known two-stage test set out by the Court of Appeal in AG-v-Camacho [2007] JLR 462 by asking ourselves two questions.  Firstly, whether your continued presence in Jersey is detrimental to the community and, secondly, whether or not deportation would be disproportionate, considering your rights and that of others under the European Convention of Human Rights and especially Article 8 which is that of respect for family life. 

8.        On the first stage we are wholly satisfied that your continued presence would be detrimental to the Island for the reasons set out by the Crown in its conclusions.  We have given anxious consideration to the second stage of the test but we do not see how the interests of innocent others would be adversely affected by the recommendation sought by the Crown nor, in all of the circumstance known to us and set out in the social enquiry report and referred to by the Crown, would, at this point, your human rights be disproportionately affected. 

9.        Accordingly, we recommend that you are deported from the Island at the conclusion of your sentence. 

Authorities

AG-v-Camacho [2007] JLR 462.

European Convention of Human Rights.

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

R-v-Nazir [1980] 2 All ER 880.