AG -v- De Franca [2009] JRC 161 (14 August 2009)

JUDGMENT THE commissioner: 1. The defendant was sentenced on 8 th June, 2009, to 18 months' probation and ordered to perform a total of 312 hours' community service. He has failed to comply with the community service order and has been brought back before us on a representation from the Attorney General. His response to the community service order was exceptionally poor and on his own counsel's words, he had no excuse for his conduct. 2. Looking at the report we have received from Mr Taylor, the defendant failed to attend his basic skills appointment on 15 th July, 2009, because he had overslept. It was agreed to combine that with another appointment for 29 th July, 2009, which he failed to attend without a suitable explanation. He was subsequently sent a warning letter with reporting instructions to attend on 5 th August and he failed to attend that appointment. There was a casual encounter in St Helier where he was urged to contact the Probation Office as a matter of priority and he said he would do so. However, he failed to do so and he failed to make a final appointment fixed for 12 th August, 2009. We are in no doubt that he has failed to comply with his obligations under the community service order and that has been accepted by Mr Jones. 3. Accordingly, under Article 7(4) of the Criminal Justice (Community Service Orders)(Jersey) Law 2001 we can either continue the order or revoke it and deal with the offences in respect of which the order was made in any manner in which the defendant could have been dealt with by the Court that made that order. We note that the Court, in imposing the community service order, said this at paragraphs 5 and 6:- "5. We have considered very carefully your counsel's submission that, taking into account the equivalent sentence of 6 months' imprisonment that you have already served, the Court should take advantage of the recommendation of the Drugs and Alcohol Service that you undertake a treatment order on the basis of probation and a substantial period of community service. Community service is not a soft option as some seem to think. It will involve you in unpaid work to the benefit of the community, work which will have to be undertaken. It is a direct alternative to a sentence of imprisonment. In many ways community service is the more risky option for you, in that if we were to sentence you to community service it would have to be a substantial number of hours and if you fail to complete that community service or if you are in breach of the probation order or the treatment order in any way, you will find yourself back before this Court where you will almost certainly be sentenced to imprisonment. 6. We have had regard to the level of your involvement of the drugs trade, and we do regard you to be at the lower end, and we have also had regard to the small quantities of the drug involved. The matter is, however, very finely balanced and the Court was divided on the issue. However, by a majority, the Court has decided that in the light of your youth and remorse and in the light of your very difficult background and the progress you have undoubtedly made in prison, we are going to give you that chance." 4. Mr Jones, on the defendant's behalf, asks us to be lenient, pointing out that the defendant has stayed drugs-free for which we commend him. We are asked by Mr Jones to confirm the existing order and to give the defendant yet another chance to complete it. However the defendant was given a chance when the community service order was originally imposed and in our view has treated the probation service and indeed, the Royal Court, with contempt by his conduct. Where the Royal Court gives defendants the opportunity to do community service as an alternative to imprisonment, it does so in the firm expectation that the community service order will be complied with and we wish it to be known that failure to do so without real justification will not be tolerated. 5. The circumstances of the offence are as set out in the judgment of the Court AG-v-De Franca [2009] JRC113 and we will not repeat them here save to say that it involved some 300 grams of heroin. That amount is below the Rimmer Guidelines and we accepted the Crown's conclusions that 6 years was the correct starting point. The defendant had imposed upon him community service of some 312 hours which is the equivalent of 2 years' imprisonment. In view of the defendant's conduct we are not going to give him any credit for the 20 hours he has completed. 6. We therefore revoke the community service order and the probation order imposed on 8 th June, 2009, and sentence the defendant on those original counts as follows; on count 1 you are sentenced to 12 months' imprisonment, on count 2; 2 years' imprisonment, on count 3; 18 months' imprisonment, each to be concurrent with the other and that is a total of 2 years' imprisonment. Authorities Criminal Justice (Community Service Orders)(Jersey) Law 2001. AG-v-De Franca [2009] JRC 113 . Rimmer and Others-v-AG [2001] JLR 373 . Page Last Updated: 29 Jul 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII