Jersey Unreported Judgments

[2010]JRC040

ROYAL COURT

(Samedi Division)

19^th February 2010

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats Morgan and Kerley.

The Attorney General

-v-

Shane Luke O'Shea

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

1 count of:	Offering to supply a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
6 counts of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 3, 4, 5, 6, 7 and 10).
1 count of:	Taking and riding away a vehicle, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956 (Count 8a).
1 count of:	Attempted robbery (Count 9).

Age:  25.

Plea: Guilty.

Details of Offence:

A police officer witnessed the defendant offering to supply 26.89 grams of herbal cannabis.  It had a street value of £280 (Count 1).  When arrested he was found in possession of a plastic tablet bottle containing a variety of tablets: 10 x 5 milligram tablets of Nitrazepam (Count 4), 2 x 20 milligram tablets of Diazepam (Count 5), a piece of white tablet containing Buprenorhphine (Count 6), and 4 x 5 milligram tablets of Diazepam (Count 7). 

O'Shea attended voluntarily for an interview under caution.  He arrived on a purple Raleigh mountain bike which was subsequently identified by the owner of the bicycle as having been taken without her permission (Count 8). 

He admitted in interview he had the herbal cannabis in his hand but denied that he was offering it for sale.  He admitted possession of the dugs.  He admitted he did not have permission to take the bicycle. 

He was released pending further enquiries. 

He approached a male and offered to sell him cigarettes at a cheap price.  The male agreed to buy the cigarettes and was taken by the defendant to a bank cash point machine to draw out funds.  The victim agreed to pay £600 for 30 cartons of cigarettes.  Whilst the victim was getting money out of the bank, the defendant ensured that he stood out of sight of the CCTV cameras.  The defendant took the victim to the sixth floor of the flats and tried to persuade him to part with his money without having been provided with the cigarettes.  The victim declined.  The defendant took the victim into a nearby block of flats and when the victim again refused to hand over the money without first seeing the cigarettes the defendant attacked the victim with a needle and syringe.  He also punched him once to the head.  The defendant threatened the victim that if he was stabbed with the needle then he would catch a disease and die.  The victim was able to call the police on his mobile phone and to beat off the defendant using a fire hose.  The defendant was identified from CCTV.  When interviewed the defendant initially denied the incident and then admitted an incident had occurred but declined to provide details of what the incident was about. 

Following Indictment the defendant put forward a factual basis as follows: "The defendant had attempted to trick the victim into giving him monies.  The victim refused and the defendant threatened to stab him with a syringe and told him to give him the monies.  A scuffle ensued during which the defendant punched the victim with a clenched fist once to the side of the head.  During the melee the defendant waved a syringe around and attempted to stab the victim.  As such the victim was put in fear". 

The Crown viewed the attempted robbery as the most serious offence particularly as the defendant had a history of previous offences using the same modus operandi albeit without resorting to violence.  The Crown took a "starting point" of 5 years' imprisonment. 

Details of Mitigation:

The Crown

The Crown contended that there had been an escalation in the seriousness of defendant's offending in that he had not previously resorted to violence when seeking to trick people out of monies.  Guilty plea entered on Indictment.  Not co-operative with the police and admitted having lied to them.  Had put forward an unacceptable factual basis for his guilty plea and through his counsel sought to minimise his culpability.  Such an approach brought into question the veracity of any apology or any expressions of remorse.  A late production of a letter of remorse.  Residual credit for youth.  He did not have the benefit of good character.  No positive recommendation put forward in the background reports.  Identified as high risk of re-offending.  The Crown suggested that sentences on the other offences should be concurrent with each other but consecutive to that on the attempted robbery and that the sentence to be imposed for the breach offence should also be consecutive. 

Defence

The Defence contended that the "starting point" was too high.  It should be nor more than 4 years.  The Defence made the following points.  The defendant should only be sentenced for what he had actually done and not on his record.  This was an attempted robbery.  The intention was to commit an offence of larceny trick.  There was no pre-meditation.  It was daytime and not in a general public area.  The weapon used was a small syringe.  It was part of a "fit pack" in the defendant's possession.  No identified injuries to the victim; no identified psychological injuries.  Issues raised on the victim's response and whether he could have left the area when confronted by the defendant.  This was not a gang or group incident.  Letters of apology provided by the defendant and also by his girlfriend.  He was entitled to full credit for his guilty plea and should receive a one third discount.  The defendant did not challenge the sentences moved for on the other Counts/breach but contended they should all be concurrent. 

Previous Convictions:

18 convictions for a total of 49 offences including 22 for theft and related offences, public disorder, 8 drug offences, offence against the person and fraud, firearms/offensive weapon. 

Conclusions:

Count 1:	3 months' imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	1 week's imprisonment, concurrent.
Count 5:	1 week's imprisonment, concurrent.
Count 6:	1 week's imprisonment, concurrent.
Count 7:	1 week's imprisonment, concurrent.
Count 8a:	1 month's imprisonment, concurrent.
Count 9:	Starting point 5 years.  3½ years' imprisonment, consecutive.
Count 10:	1 week's imprisonment, concurrent.

Breach of Community Service Order: 2 months' imprisonment, consecutive - discharge of Order sought. 

Total:  3 years' and 11 months' imprisonment. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

O'Shea appeared to be sentenced in relation to an Indictment containing offences of offering to supply Class B drugs, 3 Counts of possession of a Class B drug, 3 Counts of possession of Class C drug, taking away a bicycle and attempted robbery.  The offences were committed between the 3^rd July and 2^nd October, 2009.  He was also to be sentenced in relation to a breach of a Community Service Order previously imposed by the Magistrate's Court.  The Court dealt with two preliminary matters.  The Crown had produced a victim impact statement.  Issue was taken with it by the Defence.  This was not a victim impact statement as used in the context of sexual offences but rather more of a victim personal statement.  There is nothing preventing the Court from considering what victim says the impact of a particular offence has been upon the victim.  In fact it would be wrong for the Court not to have regard to such a statement.  The Court would always measure the contents of such statements against common sense. 

The Court viewed the attempted robbery as a most serious offence.  The Court cited with approval comments made in the case of Gill-v-AG to the effect that no community can tolerate violent robberies of this kind.  In addition the Court had also cited the quotation of the Court of Appeal to the effect that sentences for such offences involved an element of deterrence; not to deter the offender because it was too late to do that but to deter others and to show the community that such offences would not be tolerated. 

The Court then summarised the circumstances of the offence of the attempted robbery.  The Court did not find the submissions of the Defence Counsel suggesting that there was no pre-meditation very helpful. There clearly was pre-meditation in the attempts of the defendant to trick the victim and at one point the defendant formed plan B when plan A did not work.  It was not material.  This was an extremely nasty attack with a weapon and the Court had no doubt that from the transcripts of the victim's telephone call to the police that he was in fear as was verified from the transcript of the resident who called the police.  The Court agreed that he was to be sentenced for what he had done.  Entitled to full credit for his guilty plea.  The Crown had provided for residual youth at 25.  No authority for this proposition provided.  The Court doubted whether over the age of 21 a person was entitled to credit.  If there was any scope for doubt then possibly up to the age of 23 might be a mitigation factor.  The Court did not consider that any allowance should be made for defendant aged 25.  The Court noted the letter of remorse.  The Court quoted from defendant's last appearance before the Royal Court in 2006.  The remorse expressed had been minimised by the submissions made by Defence Counsel on his instructions.  The Court agreed that the Crown's conclusions on all the other offences were correct.  In relation to Count 9 (the attempted robbery) the Court's view was that the correct sentence was one of 3 years and 3 months.  The Court agreed that the sentences on the other counts should be concurrent but consecutive to the Count 9 sentence.  Counts 1 to 8 were a different set of offences.  In relation to the breach of community service the Court took into account that he had completed some hours but took the view that the Crown's conclusions were correct.  The Court expressed the hope that the defendant may turn his life around but if he did not then things were likely to get worse and worse for him. 

Count 1:	3 months' imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	1 week's imprisonment, concurrent.
Count 5:	1 week's imprisonment, concurrent.
Count 6:	1 week's imprisonment, concurrent.
Count 7:	1 week's imprisonment, concurrent.
Count 8a:	1 month's imprisonment, concurrent.
Count 9:	Starting point 5 years.  3 years' and 3 months' imprisonment, consecutive.
Count 10:	1 week's imprisonment, concurrent.

Breach of Community Service Order:  2 months' imprisonment, consecutive, original order discharged.

Total:  3 years' and 8 months' imprisonment.

Forfeiture and destruction of drugs ordered. 

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

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr O'Shea, you are before this Court for sentence on Indictments containing a charge of offering to supply a Class B drug, 3 counts of possession of a Class B drug, 3 counts of possession of a Class C drug, taking and riding away a pedal cycle without consent and attempted robbery.  The offending took place over the period 3^rd July to 2^nd October, 2009.

2.        There are a number of counts in respect of conduct there whilst in breach of a Community Service Order and you therefore also are brought back before Court to be sentenced again, for breach of the Community Service Order.

3.        There are a number of preliminary matters which I wish to say about the mitigation which has been put forward on your behalf.  The first is in relation to the production by the Crown of a victim personal statement, the statement being made by the victim of the attempted robbery.  This is not a victim impact statement which is often produced in sexual offences cases and certainly a sexual offence case requires as a minimum that consideration be given to an objective assessment of the ongoing impact on the victim; this is a victim personal statement and there is nothing in our view which prevents the Court from considering what the victim has to say in a personal statement where that is produced and indeed where it is produced it would be wrong not to consider it.  The Court has taken into account the victim personal statement and measured the contents of it against common sense as your counsel, Advocate Haines, has asked us to do. 

4.        In relation to the attempted robbery, which is by far and away the most serious of the offences for which you come to be sentenced, we have noted from the case of Gill-v-AG 1999/160 in the Court of Appeal, these statements.  In relation to the facts of that case the Court said:-

"No community can tolerate violent robberies of this kind, and any person who commits such a violent robbery in Jersey, whatever may be the circumstances of the robber, must expect to receive severe punishment by a long prison sentence."

At the conclusion of that case the Court of Appeal said this:-

"Before leaving this case we add these general observations.  In cases of violence, whether of assault or robbery or rape or other forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence, not to deter the offender because it is too late to do that, but

(1) to deter others who may be tempted to engage in similar violence, and to remind them that if they do so they will similarly face long sentences of imprisonment; and

(2) to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey.

5.        The circumstances in which this offence of attempted robbery came about are these.  At approximately quarter to three last September you approached the victim and asked if he wanted to buy some duty-free cigarettes for sale.  You encouraged him to remove money from his account; he withdrew money from an account at Barclays Bank and money from an account at National Westminster Bank.  You then took him towards the sixth floor of Hue Court, as you claimed to him that your father lived there and that is where the cigarettes were stored.  You asked him to give you the money and said that you would then go and get the cigarettes and his response, perhaps not unnaturally, was that you should go and get the cigarettes and he would then give you the money.  As you entered the foyer of Hue Court you took a lift up to the sixth floor, a male person was there with a cap and short jacket got out, and you said to him "that's my father, he's got the cigarettes, give me the money".  The victim refused until he was given the cigarettes.  As you and your victim left the lift you took out a syringe from your right hand pocket and held it in a right clenched fist with the needle pointing down, than raised the fist to shoulder height so the needle was pointing at your victim, and you said "If you don't give me the money I'm going to stab you".  At that point the victim, in fear of his life, took out his mobile phone and telephoned the police, and there is before the Court, a transcript of the tape recording of that call from the victim to the police and indeed, also, a transcript of the tape recording subsequently by a female resident at Hue Court who also called the police in the light of the fracas which had taken place. 

6.        Now, it is said by your counsel that there was no pre-meditation in relation to this attempted robbery.  There was, it seems fairly clearly some pre-meditation as to the trickery in that you attempted to obtain money from the victim in this way, but as part of that offence you took your victim to a quiet place where you did threaten him when the trick had failed.  In our view the question of pre-meditation is unhelpful.  The Court has proceeded on the basis that this was in effect a plan B if the trick (plan A) had failed but when plan B was formed does not appear to us to be very material in all the circumstances. 

7.        We have considered carefully the question of the attack with a syringe because it was said by your counsel that this was only a small syringe with an exposed needle of around one centimetre and it was part of a fit pack which you carried about with you.  In the Court's view this was an extremely nasty attack with the hypodermic syringe.  The victim would have concerns not only about the damage which could be inflicted with the syringe as a weapon in its own right, but also the fact that there was an increased risk of disease having regard to the possibility of the syringe having previously been used on another person; and indeed at the time of the offence you said to the victim "Give me the money as if this goes inside you, you will get a disease and you will die from it".  As I have said the Court treats that extremely seriously.  We have read the transcript of the emergency call to the police and the Court has absolutely no doubt that there was real fear and alarm on the part of the victim.  Even the third party, the lady who called the police, was frightened and that fear comes through from the transcript of her call. 

8.        It is said on your behalf by your counsel that full credit should be given to you for your guilty plea to this offence and that you should be sentenced only for what you have actually done; the Court agrees of course that you should only be sentenced for what you have done and that is the basis upon which we are proceeding and we do give you full credit for the guilty plea, notwithstanding that the initial denials caused the police some additional work in the first instance.  I wish to tackle briefly the question of whether you should have any credit given to you for youth as a man of 25; as has already been said by this Court on another occasion this morning, youth is regarded by the Court as a mitigating factor because by reason of the young age of the accused, his inexperience is treated as reducing his culpability.  The concept of residual credit for youth is one with which this Court has some difficulty; no authority has been put before us to support the contention and what we have to say in this respect is to be treated in that light but we note the Criminal Justice (Young Offenders)(Jersey) Law 1994 distinguishes between those aged under and over 21 and the Court is very doubtful about the proposition that a person over the age of 21 has mitigation available for youth.  If there is some area of discretion around the edges the Court can exceptionally take into account perhaps the fact that a person is aged up to 23, if the facts justify conclusion of particular immaturity in such a person.  For the avoidance of doubt we do not consider that at the age of 25, which is your age, any allowance should be made, we think at your age you should know better and therefore we make no allowance for youth. 

9.        We have noted and taken into account the expression of remorse which you have made in your letter to the Court; in that context we just also remind ourselves of the views if the Court on the last occasion that you appeared here in 2006 where the Court said "we hope that you mean what you say, namely that you really are determined to try and overcome this heroin dependency and to turn your life around, if you do the future will be good, if not, we will be seeing you again."  Well we are seeing you again and the remorse that you have, unfortunately, does not seem to have been translated into an improved course of conduct.  It is also unfortunate that the expression of remorse was not reflected by the minimising of the offence of attempted robbery in the mitigation which was put forward to us by your counsel on your instructions. 

10.      In all the circumstances the Court considers that the appropriate sentence on Count 9 of the Indictment is 3 years' and 3 months' imprisonment.  We now turn to the other Counts on the Indictment; we received no submissions of note in this respect from your counsel and indeed we think that was right because the Crown's conclusions in relation to those other sentences are all granted, that is to say 3 months' imprisonment on Count 1, 1 month's imprisonment, concurrent on Count 3, 1 month's imprisonment, concurrent on Count 4, 1 week's imprisonment, concurrent on Count 5, 1 week's imprisonment, concurrent on Count 6, 1 week's imprisonment, concurrent on Count 7, and I month's imprisonment, concurrent on Count 8.  Those sentences will be served consecutively to the sentence of 3 years' and 3 months' imprisonment on Count 9.  The Court has considered the totality in relation to this and to the breach proceedings which I shall come to in a moment, and in our view it is quite clear that Counts 1 to 8, which I have just described, form a completely different set of offending and a consecutive sentence is appropriate.  In relation to Count 10, the sentence is 1 week's imprisonment, concurrent with the sentence of attempted robbery on Count 9. 

11.      I turn next to the breach of the Community Service Order; the Court has taken into account the fact that you have performed some hours in relation to that community service and in the circumstances it considers that the Crown's conclusions of 2 months' imprisonment in relation to the breach of Community Service Order are correct.  We have considered totality also in relation to this offending.  In our view a total sentence of 3 years and 8 months' imprisonment would be appropriate and that means that in totality terms the sentence of 2 months' imprisonment for breach of the Community Service Order will be consecutive to the other sentences which are imposed. 

12.      You are sentenced in total to 3 years and 8 months' imprisonment and I hope very much that when that sentence has been served you will do what you have said you want to do which is to turn your life around because otherwise it is simply going to get worse and worse as far as you are concerned. 

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

Authorities

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

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

Gill-v-AG 1999/160.

AG-v-O'Shea [2006] JRC 134.

AG-v-Picot [2009] JRC 196.

Viveiros-v-AG [2003] JCA 126.

AG-v-Myles and Vale [2005] JRC026.