Jersey Unreported Judgments

[2009]JRC085

ROYAL COURT

(Samedi Division)

30^th April 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Clapham and Morgan.

The Attorney General

-v-

Justin James Samson

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

1 count of:

Breaking and entry and larceny.  (Count 1).

Age:  27.

Plea: Guilty.

Details of Offence:

In September 2006, Samson broke into a house at Westmount during the night.  The elderly owners, were asleep.  The victim was woken by the noise and found Samson in the kitchen stealing her handbag, which contained a small amount of cash, credit cards and a mobile telephone.  Samson then walked out of the house.  The Police were called and as the victim was giving a description of the intruder, she felt pains in her chest.  She was taken to hospital and then flown to the UK, where she underwent surgery for a heart attack.  She later said that she had been very angry and stressed at the break-in. 

Fingerprints and footprints were found at the scene.  When Samson was arrested later that day on a different matter, it was noted that his shoes matched the footprints.  He was interviewed and denied the break-in.  He provided a set of fingerprints for comparison.  However due to an oversight, these were not actually sent off for analysis and Samson was therefore prematurely ruled out of the enquiry.

In 2008 Samson was rearrested on another matter in relation to which he again provided fingerprints to the Police.  When these were analysed, the system discovered a match with a print found inside the kitchen in 2006. 

Samson was rearrested.  In interview he said that he could not remember the break-in.  However, he conceded that it probably had been him as he had been a drug addict in 2006 and was always "off his head".

Details of Mitigation:

Guilty plea, co-operation, long delay caused by oversight by Police, effort to turn life around in intervening period.

Previous Convictions:

12 previous convictions comprising 109 offences.  46 of these were larceny, theft and kindred offences, including 5 previous break and entries.

Conclusions:

In moving conclusions, to take into account the delay the Crown allowed a 1 year deduction from the 3 year sentence that would otherwise have been appropriate.

Count 1:

2 years' imprisonment.

Sentence and Observations of Court:

The Court agreed that there was exceptional mitigation in this case sufficient to allow a non-custodial sentence. 

Count 1:

312 hours' community service order or 2 years' imprisonment in default, to be completed within 24 months.

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to 1 count of breaking and entering and larceny committed in September 2006.  It was a private dwelling which was occupied.  It was carried out at night to the clear distress of the occupier who had been disturbed by noise and found the defendant in her kitchen.  It is that element of fear which the Court in AG-v-Da Silva 1997/218, made it clear was often not appreciated by the Courts. 

2.        The defendant, who is 27, has a bad record with 12 convictions comprising 109 offences, 46 of which are larceny, theft and kindred offences and including 5 previous breaking and entering offences.  However he has not served a custodial sentence since 2001.

3.        The defendant has pleaded guilty but the prosecution acknowledge that there is exceptional mitigation arising out of the delay of 2½ years caused by an administrative oversight which led to the offence not being dealt with at the time.  The defendant's fingerprints were filed away rather than being sent to the Avon and Somerset Constabulary for comparison.  It was a result of his arrest in 2008 that a match of his prints at the house of the occupier was discovered. 

4.        We agree that the mitigation is exceptional but in particular we note that in the intervening period the defendant has turned over a new leaf.  He has abstained from heroin to which he was previously addicted and indeed that was one of the causes of his having no memory at all of this particular event.  He is now in a positive relationship and has a young daughter.  It is clear that he has matured.  He is supported by the many letters from his family and friends that we have received and considered.  Furthermore he has expressed genuine remorse for the offence and the distress caused to the occupier to the extent that he has suffered from depression over it.  It is also relevant in our view that because he was under the influence of drugs at the time as I have mentioned, he has no recollection of the incident and it was not therefore something which he could have voluntarily admitted to in the meantime. 

5.        We conclude that these circumstances are sufficiently exceptional for us to avoid a custodial sentence.  It is however a serious offence and must be punished by a substantial period of community service to enable you to make reparation both to the victim and to society.

6.        You are sentenced to community service of 312 hours to be completed within 24 months.  That is the equivalent of a sentence of imprisonment of 2 years.  We must of course warn you that if you fail to complete that community service or are otherwise in breach of the terms of that community service order you will come back before us and almost certainly be sent to prison.

Authorities

AG-v-Da Silva 1997/218.

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

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