The Attorney General v Luke Clint Cox (aka Luke Clint McIntyre)

Inferior Number Sentencing - breaking and entering - larceny - attempting to pervert the course of justice - drugs - possession Class B. [2018]JRC094A Royal Court (Samedi) 23 May 2018 Before : Sir William Bailhache, Bailiff, and Jurats Sparrow and Marrett-Crosby. The Attorney General -v- Luke Clint Cox (aka Luke Clint McIntyre) Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:- 1 count of: Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 6). 2 counts of: Breaking and entering with intent (Counts 7 and 11). 1 count of: Larceny (Count 9). 1 count of: Attempting to pervert the course of justice (Count 12). Age: 31. Plea: Guilty. Details of Offence: The defendant was arrested on suspicion of having been involved in the taking and driving away of motorcycles, he was found to be in possession of a personal quantity of cannabis resin (Count 6); the offence put him in breach of a two year Probation Order. Two days before the defendant was due in the Magistrate’s Court he broke in to a private dwelling house during daytime, causing damage to a window and leaving a footprint on the frame; the householders were unable to identify anything as having been taken (Count 7). Whilst on Court bail and having admitted breaching his Probation Order the defendant snatched a handbag from a

48 year-old lady as she was walking home from work around 2:00 pm one Sunday afternoon. Originally charged as robbery a guilty plea was accepted to larceny as no violence had been used against the victim and she had not been put in fear before or during the incident, the bag being snatched out of her hand from behind left her shocked after the event (Count 9), subsequently viewed as being ‘as close to robbery as one can get’ by the Attorney General. CCTV evidence identified the defendant as a suspect. When interviewed the defendant denied any involvement in the robbery. While on bail following committal to the Royal Court for trial the defendant again broke in to the private dwelling the subject of Count 7 during the daytime but on this occasion he was disturbed by the householder’s teenage son; the defendant fled from the premises (Count 11), dropping his mobile ‘phone as he left. The defendant then went immediately to a ‘phone box from which he alleged a break in to his own accommodation and theft of items, including his mobile ‘phone. When police arrived at the defendant’s address he continued with his fabricated story of the theft of his mobile ‘phone (Count 12); when an officer called the number the defendant provided the defendant’s ‘phone was answered by a colleague investigating the other break in. Despite the teenagers description of the man he disturbed bearing a

close likeness to the defendant he maintained his story during interview only admitting guilt at indictment. During the final interview the defendant had described himself as ‘a career criminal’ who wouldn’t have made such basic errors as leaving footprints or fingerprints or dropping a mobile ‘phone. The offences for which the defendant had been placed on Probation related to the taking and driving away of a Honda 125 motorcycle, driving while disqualified and with no insurance; he had been disqualified from driving for four years as he had numerous previous convictions of the same nature. Details of Mitigation: The guilty pleas entered were of value as they were sufficient to allow the Crown not to pursue the remaining Counts on the Indictment, it being in the public interest so to do. Previous Convictions: The defendant’s record was an unenviable one commencing at age 11. He had been convicted before the Youth Court on 13 occasions, the Magistrate’s Court on six occasions and the Royal Court six previous occasions, with a total of 144 offences against his name. Conclusions: Count 6: No separate penalty. Count 7: 18 months’ imprisonment. Count 9: 18 months’ imprisonment, consecutive. Count 11 2 years’ imprisonment, consecutive. Count 12: 12 months’ imprisonment, concurrent. Total: 5 years’ imprisonment. Breach of a 2 Year Probation Order: 3 months’ imprisonment, concurrent

sought. Forfeiture and destruction of drugs sought. Sentence and Observations of Court: Count 6: No separate penalty. Count 7: 15 months’ imprisonment. Count 9: 18 months’ imprisonment, consecutive. Count 11: 18 months’ imprisonment, consecutive. Count 12: 9 months’ imprisonment, concurrent. Total: 4 years 3 months’ imprisonment – not enforced. Breach of Probation Order: 3 months’ imprisonment, concurrent made – not enforced. Probation Order made for a period of 2½ years with conditions:- that he resides initially at Orchard House, Jersey and then at Cygnet Lodge, Brighouse, Yorkshire where he is to abide by the course of therapy directed by the treatment team or otherwise he resides in such a place and works in such an employment as a Probation officer directs. Forfeiture and destruction of the drugs ordered. R. C. P Pedley, Esq; Crown Advocate. Advocate L. V. Marks for the Defendant.

JUDGMENT THE BAILIFF: 1. The defendant, who is 31, is here to be sentenced on an Indictment where he has entered guilty pleas to five counts, two of breaking and entering, one of larceny, one of attempting to pervert the course of justice and one possession of a small amount of cannabis.

2. The facts in relation to the breaking and entering charges were that he broke and entered into the same property on two occasions about two months apart. On the first occasion it was at 3:30 in the afternoon, the property was unoccupied but nothing was stolen although there was some damage caused. On the second occasion it was at 12:15pm so just before lunch. The owner’s 17 year old son was present and challenged him. The defendant immediately ran off and again took nothing with him.

3. The larceny charge involving involved grabbing the handbag of a 48 year old lady. It may just be appropriate to describe what she said: “The incident took place very quickly and occurred whilst I was walking alone on Poonah Road. He came from my left side and in which seemed like an instant, managed to take hold of my handbag in my left hand. The male must have grabbed the lower part of the handles and snatched it quickly out of my grip. I couldn’t do anything to stop him. There was no struggle and he did not say anything as he took it with a quick yank as he passed. I was very upset and angry about what had happened. I don’t know what would have happened if I had tried to keep hold of the bag which is a scary thought. It really has shaken me up and left me without my property and keys to get in to my own house.” 4. The attempt to pervert the course of justice was directly connected to the second count of breaking and entering. The defendant made a false complaint to the police of the theft of his mobile phone which he in fact had dropped at the scene of the crime, and I said earlier the possession of cannabis charge involves a very small amount of cannabis for personal us.

5. The aggravating features of these offences were that, as is clear, some of them were committed on bail. The first of the offences was committed in breach of a Probation Order imposed on the defendant by the Magistrate’s Court earlier. The aggravating features include a dreadful record which this defendant has including many offences of a similar type.

6. Advocate Marks said to us correctly that when we assess the seriousness of the offence we should have regard to the fact that nothing was stolen in the breaking and entering offences, and there was no ransacking or soiling, and she was right then also to mention the guilty plea and the background history of this defendant.

7. Ordinarily, these sentences would unquestionably call for a custodial sentence. The Court has given careful thought to how it is going to handle this series of offences. Having regard to the usual principles of sentencing. As is well known, retribution, deterrence and rehabilitation are the three possible principles of sentencing and in this case the Court is going to look for an individualised sentence and look for a sentence which may assist the defendant in rehabilitation.

8. Despite the fact that that is our conclusion we have been asked by the Crown to consider what sentence would have been imposed if we were not going to impose a sentence of probation which in fact we are.

9. The Court has considered that the Crown is right to move for no separate penalty on Count 6.

10. We looked at what each offence individually might have attracted by way of sentence. We thought that a sentence of 15 months’ on Count 7 might have been appropriate; 18 months’ consecutive on Count 9; 18 months’ consecutive on Count 11 and 9 months’ concurrent on Count 12. That would have led to a total of 4 years’ 3 months and we then went to consider the totality principle and how that would have operated on the thinking of the Court.

11. We reached the conclusion that the right sentence in total would have been 3 years’ imprisonment, having regard to the period of time over which this offending took place, having regard in particular to the fact that nothing was stolen on the breaking and entering charges, and having regard to the items of personal mitigation which this defendant has. That 3 years total sentence would probably therefore have been accommodated by making the sentences on the two breaking and entering charges run concurrently rather than consecutively and in addition there would have been a sentence of three months concurrent for the breach of probation, that order being imposed by the Magistrate.

12. What we are actually going to do is to sentence this defendant to 2½ years’ on probation with conditions:- (i) that he resides initially at Orchard House, Jersey and then at Cygnet Lodge, Brighouse, Yorkshire where he is to abide by the course of therapy directed by the treatment team or otherwise he resides in such a place and works in such an employment as a Probation officer directs and (ii) the usual conditions of the Probation Order will of course be attached.

13. It is important for the purposes of the public’s understanding and for the victims of these crimes that I say a little more about why we are going to impose that sentence. It is right to start with the record of this particular defendant. He has a record which starts when he was aged 12. His offending started at the age of 9. The record shows that he has committed 144 offences and there are 25 separate occasions in relation to which those offences have come before the Court. He had 44 offences committed before the age of 18.

14. It is right to say, so it seems to us, that we accept the probation and indeed the psychiatric recommendations and that if we impose a further custodial sentence today there is no likelihood other than that he will continue to offend when he comes out of prison. This defendant clearly has intelligence, he clearly has the ability to turn his life around; the court believes that is true. It is not to say that you will turn your life around because the course which you are going to have to take at Brighouse is going to be very challenging, it will be very difficult. You are going to have to work hard but you can do, the court thinks you can do it and you should come away from this sentence today with at least some hope that you can, and I hope with determination that you will.

15. The taking of the handbag from the lady is an offence causes us real difficulty. It is an offence which we would be very sad to see repeated in this Island by anyone. It is an offence which is prevalent elsewhere. It is not what happens in Jersey and the Court will be tough on offenders who commit this offence. So, in particular to her but also to the 17 year old son and his father as the victims of the crimes where non-custodial sentences have been imposed, we would like to say this. The criminal record which I have described is down to a series of events in this defendant’s upbringing which have caused him to need the treatment, the psychiatric treatment which he is going to get as part of the Probation Order. The defendant has shown over the years up until now by his self-harming and by the suicidal ideations that the treatment he had as he was growing up has had a serious impact upon him. The Probation Report is that there is a high risk of further offending in the next 12 months if he is not given the psychiatric treatment that he needs.

16. And so to the victims of these offences we would say that there have been many other victims of the 144 offences committed by this defendant so far and we hope that the result of the rehabilitative sentence that we are opposing today will result in there being either no – and I hope none - or fewer victims in the future.

17. So, the options we have seen as either a custodial sentence with a repeat of the previous offending in the future or the alternative course, a newer course. We just would like to add this. The Crown has criticised the report of the psychiatrist and has contended that in that report the psychiatrist has expressed himself so forcefully that he cannot be seen as an independent expert. We understand that criticism and indeed we think that the psychiatrist perhaps has been immoderate in the way in which his report has been expressed. Unquestionably, Advocate Marks is correct to say that he has seen this defendant at close quarters for now a couple of years and regards him as his patient and that makes his report less independent than the Court ideally would have liked. Nonetheless, what the psychiatrist has said and what his analysis shows is completely consistent with what others have said in the past. Strip away the immoderate language which we have done, the recommendations which are made by the psychiatrist seem to us to make sense which is why we are imposing the Probation Order that we are.

18. We make an order for forfeiture and destruction of the drugs.

19. Mr Cox you are sentenced to 2½ years’ probation on the conditions which I have mentioned. We do not want to see you again.

20. I should warn you for the record that if you do not comply with the terms of probation you are liable to be brought back to this Court and sentenced again for these offences, and you can be sure that you will be facing a custodial sentence then. Authorities AG v Da Silva [1997] JLR N-14A AG v Lenton & Fannon [1992] JLR N-10a AG v Cox & Ors [2015] JRC 156. R v Grant [2013] EWCA Crim 678. Whelan’s Aspects of Sentencing in the Superior Courts of Jersey, 3rd Ed.