A sentence for attempted burglary became a lengthy procedure last week when Magistrate Kirsty-Ann Gunn and defense attorney Nicholas Dixey aired all the factors pertaining to Levi Ambrose Powell, who was found guilty in February after trial.
Mr. Dixey acknowledged that Powell, 24, had pleaded not guilty because he had received a two-year suspended sentence for burglary in July, 2015 – just three months before his new offending – and he feared that the suspended sentence would be activated.
The attempted burglary charge against Powell, along with two other males, arose after an incident on Oct. 5, 2015, when a Bodden Town resident observed three figures trying to pry open the rear door with a hammer and screwdriver.
One, who was 17 years old at the time, pleaded guilty and received a six-month sentence.
The other, who was days away from turning 19, pleaded guilty to criminal trespass and received four months.
The magistrate set Powell’s sentence for this offense at 16 months, directing that he be given credit for five months in custody plus 200 days in consideration of 14 months on curfew. She activated the suspended sentence, to be served consecutively and in full.
In calculating Powell’s sentence, the magistrate noted that the new guidelines suggest a sentence of three to seven years for burglary, but they do not refer to attempted burglary. She decided on a 50 percent reduction and arrived at a sentencing range of 18 months to three and a half years.
Then, she said, she had to consider the sentences of Powell’s co-defendants. Their sentences fell outside that range, but they were younger than Powell and had no previous convictions. The starting point for their sentences must have been between 12 and 16 months, she concluded, adding that sentencing was not an exact science.
The magistrate determined that Powell’s starting point would be 14 months, but he had “very, very significant aggravating features.” He had five previous convictions for burglary and had been to prison, but that had not deterred him.
She said there had to be a significant uplift and raised the starting point to two years. There was no discount for his plea because he had chosen to go to trial.
Then she considered the mitigation by Mr. Dixey. He pointed out that Powell was holding down a job while awaiting sentence and was being responsible for his family, who were a positive influence on him. “I ask you to consider what he has achieved since being granted bail 14 months ago,” Mr. Dixey said. He suggested that further imprisonment would disrupt Powell’s rehabilitation and could damage his family.
Mr. Dixey told the court that the defendant was developing good judgment. When his family could not afford their rent, they had moved to a less expensive place. “He didn’t look for a quick fix. He didn’t burgle a house. He is finally growing up,” the attorney submitted.
Powell had also tested negative for ganja before sentencing. The magistrate accepted that were it not for his previous ganja use, she could say he had been a law-abiding citizen.
She agreed with Mr. Dixey that Powell had spent five months in custody and was then granted bail with a curfew and an electronic monitor. The first part of the curfew had been very stringent, 6 p.m. to 6 a.m., and she gave Powell 50 percent credit. The curfew was then relaxed to 9 p.m. With a total of 412 days on curfew, she said she would allow credit for 200 days.
Mr. Dixey asked how the prison authorities would apply the credit for the curfew time.
The magistrate replied that if she gave credit in arriving at Powell’s sentence, the final sentence could be disproportionate. She indicated that the sentencing procedure needed to be set out in detail so that when Powell went before a review committee, its members would understand why the sentence had been imposed.
The Conditional Release Law provides for review of sentences of more than one year after a convicted person has served 60 percent.
The offense for which Powell received a suspended sentence of two years was the burglary of the First Assembly of God Church on Old Crewe Road in February 2015. The suspension was for a period of two years, with a number of conditions. Those conditions were breached when Powell committed the attempted burglary. Any time spent in custody on the burglary charge is to be deducted.