AG v Swinburne

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: F.C. Hamon,O.B.E.,Jurats Bullen,King
• Judgment Date: 25 June 2004
• Neutral Citation: [2004] JRC 113
• Date: 25 June 2004

[2004] JRC 113

ROYAL COURT

(Samedi Division)

Before:

F.C. Hamon, Esq., O.B.E., Commissioner, and Jurats Bullen and King.

The Attorney General

and

William Stuart Swinburne

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

Advocate R. Juste for the Defendant.

Authorities

A.G. v Gaffney (5th June, 1995) Jersey Unreported; [1995/101].

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2nd Ed'n): paras 376, 380, 402, 408.

Wylie v A.G. (17th January 2002) Jersey Unreported; [2002/13].

R v Webbe & Ors [2002] 1 Cr. App. R (S) 82.

A.G. v Munks (8th October, 1999) Jersey Unreported; [1999/168A].

A.G. v Mallon & Ors (2nd August, 1996) Jersey Unreported; [1996/143].

A.G. v de la Haye & Anor (15th December, 1995) Jersey Unreported; [1995/248].

A.G. v Buesnel [1996] JLR 265.

Bernard [1997] 1 Cr. App. R. (S) 135.

Second Indictment

1 count of: breaking and entering and larceny (Count 5)

1 count of: possession of a controlled drug, contrary to article 6(1) of the Misuse of Drugs (Jersey) Law 1978.

Count 6 (diamorphine).

[The counts on the first indictment and counts 1–4 on the second indictment relate to co-defendants who were sentenced by the Royal Court on 28 ^th May 2004: See [2004] JRC 093].

Age: 47

Plea: Guilty

Details of Offence:

Accused broke into Spearmel Stores with others whom he refused to identify. During break-in cigarettes, alcohol, phone cards and cash worth a total of £5385.00 were stolen.

Swinburne admitted trying to break into a safe on the premises. When later arrested he was carrying a personal dose of heroin. Reports suggested very high risk of re-offending.

Sentencing delayed so that health assessment could be undertaken in Southampton.

Details of Mitigation:

Immediate guilty plea; wrote own indictment to break-in; co-operation, difficult background with long term substance addiction; liver and lung disease — transplant required in 3 to 5 years.

Previous Convictions:

Bad record, including 10 previous convictions for break and entry.

Second Indictment

Count 5: 18 months' imprisonment.

Count 6: 6 months' imprisonment, consecutive.

Sentence and Observations of Court:

Count 5: 15 months' imprisonment.

Count 6: 3 months' imprisonment, concurrent.

Prison unavoidable, but Court felt able to reduce conclusions slightly.

THE COMMISSIONER:

1 The defendant is a heroin addict. Because it was discovered that he had severe medical problems, he was not sentenced with his two co-accused on 28 ^th May 2004. The discovery that he might need a liver transplant within a relatively short time has come, according to Miss Juste, as a shock to him and that is understandable. There has been delay, not only because of the medical prognosis but also because the defendant instructed his new lawyers to attend a meeting with the police where he, quite literally, wrote his own indictment, and that meeting was also delayed because of the Christmas period.

2 The learned Crown Advocate has explained however, that whilst the break-in at the grocery store might have been unplanned, it became sophisticated once Swinburne was inside. We must read the conclusions of the case of Bernard [1997] 1 Cr. App. R. (S) 135, a case passed...