AG v Mufwinda (Royal Court : Sentencing (Criminal)) [2025] JRC 031 (30 January 2025)

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URL: https://www.bailii.org/je/cases/UR/2025/2025_031.html
Cite as: [2025] JRC 031, [2025] JRC 31

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Superior Number Sentencing - Illegal entry and larceny - malicious damage - drugs - possession

[2025] JRC 031

Royal Court

(Samedi)

30 January 2025

Before     :

Sir Michael. Birt, Commissioner, and Jurats Dulake, Austin-Vautier, Opfermann, Berry and Ramsden.

The Attorney General

-v-

Asemahle Aubrey Junior Mufwinda

Sentencing by the Superior Number of the Royal Court, following a guilty plea to the following charges -

1 count of:

Illegal entry and larceny (Count 1).

2 counts of:

Malicious damage (Count 2 and Count 4)

1 count of:

Possessing a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3)

Age:  22.

Plea: Guilty.

Details of Offence:

Illegal entry and larceny and malicious damage

At approximately 3:30 am on 27 August 2023, the Defendant, together with two other men, entered a flat which was occupied by a man and his two young children.  The men were wearing dark clothing and balaclavas and at least two of them (one being the Defendant) were carrying baseball bats.  One of the men made a comment to the effect that they were there because the victim's brother owned money.  They asked the victim's name, and when he gave his surname, they became angry.  The commotion woke the victim's children, who were terrified.

 

The Defendant's face covering slipped down, and the victim recognised him.  The Defendant took a leading role, with the other two men keeping watch by the door, returning occasionally.  The Defendant demanded that the victim hand over various items and asked - "Where's the money for the smoke".  The victim understood this to mean that his brother owed the men money for cannabis.

 

The incident lasted between five and ten minutes.  During this time, the Defendant approached the victim's daughter and said - "Don't worry, Daddy will be okay, go back to sleep".  He was close to her face and she was shaking.

 

As he left, the Defendant smashed a bathroom unit with the baseball bat, causing the glass the shatter.

 

The men stole approximately £20 to £30 in cash, a PlayStation 4 console, a television and the victim's iPhone.  None of the items were recovered.

 

Messages were recovered from the Defendant's phone that showed the Defendant and two others making arrangements to commit the offence, including discussion of a weapon and mention of a "shank".

 

The Defendant was interviewed three times and, on each occasion, denied committing the offences.

 

Possession of cannabis

At the time of his arrest for the illegal entry offence, the Defendant was searched and found to be in possession of 0.2 grams of cannabis.  He admitted that it was cannabis immediately on being asked.

 

Malicious damage

Shortly after midnight on 28 April 2024, the Defendant was at Liberty Wharf.  He was shouting and punched the glass door to Seafish Café at Liberty Wharf, causing it to break.  He charged towards door staff at Vittoria nightclub and attempted to punch one of the staff, before being escorted away. The glass panel required replacement, which cost Seafish Café £747.51. 

Details of Mitigation:

Guilty plea, lack of previous convictions and residual youth.

Previous Convictions:

One previous conviction for common assault.

Conclusions:

Count 1:

4 years and 6 months' imprisonment.

Count 2:

1 month's imprisonment, concurrent.

Count 3:

No separate penalty.

Count 4:

1 months' imprisonment, concurrent on the ground of totality.

Total - 4 years and 6 months' imprisonment.

Compensation order sought in the sum of £1,000 for the victim and £747.51 for Seafish Café.

Forfeiture and destruction of the cannabis sought.

Sentence and Observations of Court:

Count 1:

4 years' imprisonment.

Count 2:

1 month's imprisonment, concurrent.

Count 3:

No separate penalty.

Count 4:

1 month's imprisonment.

Total 4 years' imprisonment.

Compensation order granted in the sum of £1,000 for the victim (with 4 weeks' imprisonment in default of payment) and £747.51 for Seafish Café (with 3 weeks' imprisonment in default).  The Defendant must pay the orders within 12 months of his formal release from custody.

Forfeiture and destruction of the cannabis ordered.

A. M. Harrison Esq., Crown Advocate.

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE Commissioner:

1.        This must have been a terrifying incident for the victim and his two young children, who were 10 and 8 at the time.  Between 3.00 and 3.30 am on the 27 August 2023, they were woken from their sleep to find three men in their bedsit.  The men were wearing balaclavas as masks and two of them were armed with baseball bats.

2.        You were one of those three men.  You, and two others who have not been caught, gained entry to the victim's bedsit as a targeted raid because you understood that the victim's brother owed a drug debt.  One of you said to the victim "you know why this is happening, [redacted] owes a lot of money".

3.        You demanded of the victim "where's the money for the smoke" and then there was the theft of some £20 to £30.00 in cash, a PlayStation console, a television and the victims' mobile phone.  You also spoke to one of the children; they of course had been woken up by what was happening.  The value of items taken was something in the region of £470 to £580. 

4.        As you left, you smashed a bathroom unit with a baseball bat causing the glass to shatter, and this reflects Count 2 on the Indictment.  It is clear that the victim and his children have been much affected by what happened and this is not at all surprising given that this was a burglary in the middle of the night, and they found three masked men in their bedroom.

5.        Following arrest, you were interviewed three times - the last occasion being in March 2024, but you denied any involvement during the interviews.  It was only on 11 October following proceedings commenced on 3 October that you pleaded guilty before the Magistrate's Court. 

6.        When arrested you were found in possession of a small amount of cannabis which gives rise to Count 3. 

7.        Count 4 is a charge of malicious damage on a completely separate occasion on 28 April 2024.  You became angry following an incident inside Victoria's nightclub.  Outside, two other men were trying to calm you down, but you punched the glass door to the Seafish Café causing it to break and the repairs have cost some £747.  You were arrested at the time and immediately admitted the offence.

8.        Now in connection with the illegal entry on the 27 August 2023 you have said that you had owed money for a drugs debt and the person to whom you owed money had threatened you and asked you to break into the victim's address.  The drug debt would then apparently be cleared.

9.        The Court is firmly of the view that this is no mitigation, and your Advocate very properly accepted that.  The Court has repeatedly said that persons who commit drug offences following threats from their drug dealers or in order to clear a drug debt cannot pray that in aid as mitigation and, in our judgment, exactly the same principle applies where some other type offence is committed because of threats from a drug dealer or because of a promise of a waiver of a drug debt.

10.     We have been referred to a number of cases concerning burglaries; in particular the guideline case of AG v Da Silva [1997] JRC 218 suggests that burglary of an occupied dwelling house at night will not normally attract a sentence of less than 3 years on a guilty plea, and the sentence will be more if there are aggravating features.  There are aggravating features in this case; there are several.  It is a fact that there were three men in a planned offence; they were masked; two of them were carrying weapons, namely baseball bats; there was accompanying vandalism in the form of smashing the bathroom unit; and significantly, there were children present and the effect on both the victim and the children has been significant.

11.     Advocate Baglin has spoken powerfully in mitigation on your behalf.  He has referred to a number of matters.  These include your guilty plea, and we agree that the full one third should be allowed.  He has referred to your youth, this offence occurred on the day of your twenty-first birthday.  He has referred to your lack of previous convictions for any similar offences - you only have one previous conviction.  Significantly, he has referred to the letter from your father who is in court to support you and your letter of remorse, which we have read carefully. 

12.     Your remorse is, we accept, genuine, and it is supported by various paragraphs in the Social Enquiry Report to which we have been referred.  We note from that report that you have made efforts to benefit from the services available to you in prison and the material shows that there is a good side to you and that you are determined to change your life around.

13.     Mention has been made of delay, but we do not consider that that is a factor which should reduce the sentence in this case.  The fact remains that you denied guilt during all the interviews and the Police had to investigate in order to try and identify the two other men, who you have not identified.  The delay therefore resulted from these circumstances, not from any fault on the Prosecution.

14.     Advocate Baglin has submitted that a sentence of 3 to 3½ years would be appropriate and if that is right, a community service and probation order would be an appropriate non-custodial alternative having regard to all the mitigation that he has described.

15.     However, the offence is too serious for a non-custodial sentence.  As we said at the beginning, this must have been a really terrifying incident.  The aggravating features that we have described must lead to a sentence of more than the figure of 3 years mentioned in the case of AG v Da Silva.  Had you been older, the Crown's conclusions would have been entirely correct. 

16.     However, we have paid particular regard to your youth and to your clear remorse which we accept as genuine, and to your determination to change your life around.  In the light of these factors in particular, as well as the other mitigation, we have concluded that a slightly lesser sentence can be imposed.

17.     We agree that on grounds of totality all sentences should be concurrent, even though logically the sentence on Count 4, should be consecutive as being a wholly separate offence on a different occasion.  So, Mr Mufwinda the sentence of the Court is as follows:

(i)        Count 1, 4 years' imprisonment.

(ii)       Count 2, 1 month's imprisonment, concurrent.

(iii)      Count 3, no separate penalty.

(iv)     Count 4, 1 month's imprisonment, concurrent.

The total is 4 years' imprisonment.  You can sit down.

18.     The final matter we must deal with is the application for a compensation order.  We think that there should be compensation in order to reflect the damage you have caused.  So, we are going to make a compensation order of £1,000 in favour of the victim and £747.51 in favour of the Seafish Café.  There will be a default sentence of 4 weeks in respect of the first compensation order and 3 weeks imprisonment in default in respect of the second.  But we do not want to saddle you with too much debt when you come out.  We hope very much that following your time in Prison and having taken advantage of the services on offer there, you will be able to recommence your life in the way that you say you wish.  So, we say that the compensation has to be paid within 12 months following the date of your formal release.

Authorities

Misuse of Drugs (Jersey) Law 1978.

Vladimirov v AG [2024] JCA 161

AG v Vladimirov and Kuzmins [2023] JRC 253

AG v Falle [2019] JRC 062

AG v Power and Oliver [2014] JRC 009

AG v Da Silva [1997] JRC 218

Da Silva v AG [1997 JLR Notes 14A]

R v Brewster [1998] 1 Cr App R (S) 181


Page Last Updated: 27 Feb 2025


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