Jersey Unreported Judgments

[2008]JRC120

youth appeal court

29^th July 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Youth Court Panel Members, Mrs L. Falle, Mrs C. Crill and Mrs D. Thompson.

DB

-v-

H M Attorney General

Appeal against sentence of the Youth Court on 5^th June, 2008.

Advocate R. Pedley for the Attorney General.

Advocate R. Tremoceiro for the Appellant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an appeal by DB against a sentence of 70 hours' Community Service imposed by the Youth Court on the 27^th May, 2008 for 1 offence of breaking and entering and larceny. 

2.        The facts can be briefly stated.  DB is now 17, but on the 21^st October, 2007 he was 16.  On that night he met up with 2 co-defendants, JQ also aged 16 at the time and an adult Grant Milon.  The co-defendants had been drinking.  They went to Les Charrieres Hotel in St Peter.  Once inside, they wandered about.  The two co-defendants started picking up random objects and throwing them around.  They also located some paint pots and started throwing paint, causing considerable damage.  Milon also defecated on the premises and smeared that around.  It is accepted that the appellant played no part in the criminal damage and his plea of not guilty to that charge was accepted, whereas both co-defendants pleaded guilty to it.  Nevertheless he remained present whilst this was going on and was in the premises for some half an hour to 45 minutes. 

3.        The larceny element arose because, together with the others, he stole some food and drink from a fridge in the hotel.  Milon was dealt with at the Magistrate's Court and received a sentence of 150 hours' Community Service for the 2 offences and some others of which we have no details.  JQ, who like the appellant also had no previous convictions, received a sentence of 90 hours' Community Service and, as we have said, the appellant received a sentence of 70 hours' Community Service. 

4.        The appellant now seeks to appeal against that sentence.  He faces an immediate difficulty by virtue of Article 15(2) of the Criminal Justice (Young Offenders)(Jersey) Law 1994.  The provisions of Part 5 of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949 apply mutatis mutandis to appeals from the Youth Court to the Youth Appeal Court.  Adapting the language for the purposes of an appeal from the Youth Court, Article 17(1) of the 1949 Law provides that a person who pleads guilty before the Youth Court may appeal against sentence.  But Article 17(3) then defines sentence as follows:-

"In this article sentence includes any order made on conviction by the Youth Court not being a) a probation order; b) a Community Service Order c) an order for payment of costs."

It then goes on to mention two others which are not relevant.  Thus there is no appeal against a sentence of Community Service or a Probation Order.  That was confirmed in the case of Uddin -v- AG Jersey Unreported 22^nd August, 1994 where this Court held that it simply had no jurisdiction to hear an appeal from the Magistrate's Court in respect of a condition attached to a Probation Order. 

5.        How does Advocate Tremeceiro seek to bring this appeal?  He refers first to Article 3 of the Criminal Justice (Community Service Orders)(Jersey) Law 2001 the relevant parts of which provide as follows:-

"(1) A court considering making a community service order shall obtain from a probation officer or a designated person and consider a written or verbal report upon -

(a) the offender and the offender's circumstances;

(b) the suitability and willingness of the offender to perform community service; and

(c) the availability of community service.

(2) Before making a community service order, the court shall be satisfied -

(a) that a probation officer or a designated person has explained to the offender in plain language -

(i) the purpose and effect of the order and, in particular, the obligations described in Article 5,

(ii) the power of the court under Article 6 to review the order on the application of either the offender or the relevant officer, and

(iii) the consequences which may follow under Article 7, if the offender fails to comply with any obligations under the order, or under Article 8, if the offender is convicted of a further offence while the order is in force;

and

(b) that the offender has understood the explanation.

(3) A court shall not make a community service order in respect of an offender unless -

(a) the court is satisfied that provision can be made for the offender under the arrangements for persons to perform work under such orders; and

(b) the court is satisfied, after considering the report described in paragraph (1), that the offender is a suitable person and willing to perform work under such an order."

6.        Next, Advocate Tremeceiro refers to the English case of R-v-Marquis [1974] 2 All ER 1216.  Although the wording of the relevant statute in that case was rather different, the effect was not dissimilar, namely that a person could not appeal against sentence where a probation order had been made.  However, under the relevant statute, a probation order could not validly be made unless the offender had expressed a willingness to be bound by the requirements of the order.  The Court of Appeal held that where the defendant had not been given a fair opportunity to make his choice as to whether to agree to the terms of the order.  The probation order had accordingly been imposed in breach of the requirements of the statute and was therefore not a sentence known to the law.  A person who was subject to a sentence unknown to the law was not prohibited from appealing and the Court of Appeal therefore allowed the appeal and substituted a different sentence.  

7.        Advocate Tremeceiro argues by analogy that that is the case here.  On the face of it, Advocate Tremeceiro has quite a hurdle to overcome.  A full report from the probation service was obtained in this case.  The report stated in paragraph 19 that the appellant consented to community service and this report was read over to the appellant and his mother at a meeting with the probation officer.  The appellant had also signed the standard form in relation to community service which confirmed his willingness to undertake community service.  We have seen an example of that form before us. 

8.        It follows that, so far as the Youth Court was concerned, all the requirements of paragraphs (1)-(3) of Article 3 (and in particular the requirement of paragraph 3(b)) of the 2001 Law were fully satisfied.  But what is said in this case is that, although the appellant signed the form in the presence of his mother and the probation officer, he was not given the opportunity to give free and informed consent to community service. 

9.        In order to resolve this we heard evidence from the appellant, from his mother and from the probation officer Miss Barrowcliffe.  It is clear there were two meetings between them, the first on 2^nd May when full details for the report were taken, and the second on 16^th May when the report was read over to the appellant and his mother.  Ultimately there was not, in fact, much dispute between them as to what occurred although naturally recollections as to exact wording and matters of detail differed. 

10.      Having seen and heard the witnesses we find as follows.  At the first meeting Miss Barrowcliffe explained the various sentences which the Youth Court might impose.  These included community service which she explained, correctly, was a direct alternative to youth detention.  She handed the appellant's mother the standard form of consent for community service to which we have already referred. The appellant's mother explained that he might not have the time to carry out community service.  He was apparently at Highlands College at the time, which he attended on Mondays, Wednesdays and Thursdays and he was hoping to get employment at the Lavender Farm, although he did not have a firm offer at that stage.  The mother explained that the appellant needed to obtain employment in order to repay her for the legal fees being incurred.  The probation officer explained that this matter could be discussed with the community service team should he in fact obtain a job in future so that arrangements could be made as to when he could attend community service. 

11.      Miss Barrowcliffe accepted that she encouraged the appellant to sign the form of consent for community service and, in the light of the offence, she said it could look more beneficial to him.  The mother read the form and the appellant then signed it confirming his willingness to undertake community service.  The appellant and his mother both said in evidence that they received the impression that he might get a more severe sentence if he did not sign the form and felt that he really had no choice.  They both emphasised that Miss Barrowcliffe did not say specifically that this was the case.  Miss Barrowcliffe, in her evidence, said that the appellant and his mother did not say that he was unwilling to undertake community service; their queries were confined to any possible difficulties if he were to obtain a job.  They signed the form and she did not think there was anything untoward in it.

12.      At the next meeting on 16^th May the probation officer read through her report including the passage confirming that the appellant consented to community service, to which we have already referred.  However, we do accept that by that time the appellant and his mother were focusing on the recommendation in the report for a Binding Over Order as they thought that was the likely sentence which the court would impose.  

13.      As I say, Advocate Tremeceiro relies on the case of Marquis but it has to be said that the facts in that case were very different from the facts in this case and it is convenient perhaps simply to read the headnote in order to illustrate that point:- 

"The appellant, who was aged 19 and had no previous convictions, was convicted in the Crown Court for handling stolen goods.  Following her conviction the trial Judge asked whether she wished to be put on probation.  The appellant made it clear that she did not.  Further discussion took place, as a result of which the appellant was given the impression that the only alternative to probation was a custodial sentence.  The Judge then asked again whether she was prepared to be put on probation, to which she replied:"I will agree to be put on probation only because the Court offers an alternative of a custodial sentence".  Accordingly the Judge ordered that she be put on probation for three years. 

On appeal, Held - under s 3(5) of Criminal Justice Act 1948 a probation order could not effectively be made unless the defendant had expressed his willingness to be bound by the requirements thereof.  For that purpose the defendant had to be given a fair opportunity to make his choice whether to agree to the terms of the order.  Since the appellant had been given the false impression that the only alternative to probation was a custodial sentence, she had not been given a fair chance to decide for herself whether she was willing to be bound by the terms of the order or not. 

It followed that the order had been made in contravention of s 3(5) and was thus not a sentence known to the law.  Accordingly, as a person who had been convicted and subject to a sentence unknown to the law, she was entitled to appeal.  The appeal would be allowed and a conditional discharge for two years substituted for the 'probation order'." 

As can be seen, the facts in that case were different.  The defendant was in court when this matter arose; she had to make a choice there and then; she made it clear to the first instance court that she was in fact not willing to be put on probation.  The Court of Appeal found that she only eventually consented because she had been given a false impression by the court below as to the alternative.  One can well understand, in those circumstances, the Court of Appeal finding that her consent was not fully given and informed. 

14.      In our judgment there is nothing in this case to invalidate the consent on the form.  Miss Barrowcliffe did nothing incorrect and we do not find that she exerted any pressure on the appellant or his mother to sign so as to undermine their free will.  As she said, she has had cases before where a person has refused to sign and she accepts that that is their choice.  We accept that she encouraged the appellant to sign the form but there is nothing wrong with that as long as it does not cross the boundary leading to the consent not being a full and informed one.  We are sure that most defendants do not sign the consent form with much enthusiasm as they would prefer not to have to undertake community service.  They may sign it only because they fear the alternative of a prison sentence but that does not invalidate their consent. 

15.      In our judgment when the appellant signed this form, assisted by his mother, who is clearly a strong minded individual, he knew and understood the effect of the form and nothing which had occurred in the meeting with Miss Barrowcliffe led to that consent being other than a full and informed one.  It follows that, the provisions of Article 3 of the 2001 Law having been complied with, this Court simply has no jurisdiction to hear this appeal which must therefore be dismissed. 

16.      We would, however, add two observations:-

(i)        We invite the relevant Minister to consider whether Article 17(3) of the 1949 Law should not be amended so as to allow for an appeal against a sentence of community service.  We understand the origins of the provision because it used to be attached as a condition to a probation order; but it is now a stand alone sentence and we see no reason why a defendant should not be able to appeal on the grounds either that something less than a Community Service Order should have been imposed or that the number of hours imposed was excessive.  It is clear to us that the underlying reason behind this appeal is that the appellant and his mother feel this sentence was too severe for the particular offence and having regard to the sentences passed on his co- accused.  Because we have found we have no jurisdiction it has not been possible for us to consider whether their concerns are well founded. 

(ii)       Secondly, it is clear that Advocate Tremeceiro mitigated in the court below solely on the basis of the recommendation in the probation report that a binding over should be imposed and he did so in the expectation that it was likely that the recommendation would be followed.  It clearly came as a shock to him and to the appellant and his mother when the sentence of community service was imposed.  Now it is, of course, counsel's duty to prepare for all eventualities but in the Youth Court and the Magistrate's Court, where no conclusions are moved for by the prosecution, we think it only fair for the Court to indicate if it is considering a more serious sentence than is recommended by the probation report, particularly if counsel appears to be proceeding on the assumption that the recommendation is almost certainly going to be followed.  Such an indication at least gives counsel the opportunity of addressing the matter and putting forward any additional reasons which he or she may wish to put forward against the more serious sentence being contemplated by the Court.

17.      For the reasons given this appeal is dismissed.

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Magistrate's Court(Miscellaneous Provisions)(Jersey) Law 1949.

Uddin -v- AG Jersey Unreported 22^nd August 1994.

Criminal Justice Community Service Orders (Jersey) Law 2001.

R -v- Marquis [1974] 2 All ER 1216.

Criminal Justice Act 1948.