Jersey Unreported Judgments

[2009]JRC104

ROYAL COURT

(Samedi Division)

22^nd May 2009

Before     :

F. C. Hamon, O.B.E., Esq., Commissioner, and Jurats Le Cornu and Fisher.

The Attorney General

-v-

John Michael Highfield

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Grave and criminal assault.  (Count 1).
2 counts of:	Assault.  (Counts 2 and 4).

Age:  28.

Plea: Guilty.

Details of Offence:

The defendant had a history of mental illness which, when treated with medication, could be kept under control.  On 21^st October, the defendant visited his 73 year old father and sister at his father's house.  A verbal argument arose between the defendant and his sister.  The defendant left the room and returned with a 12 inch kitchen knife.  He threatened to kill his sister and held the knife towards her in a lunging action (Count 1).  His sister feared for her life and said that she was going to call the Police.  The defendant then took hold of his father by the throat and punched him in the shoulder (Count 2).  He then took hold of his sister by the throat and pulled his arm back as if to punch her, before saying "I'll have you within the month" and leaving the flat.  No complaint was made at that stage. 

On 17^th November, 2008, the defendant was again at his father's flat, this time with an ex-girlfriend.  An argument started during which the defendant became aggressive.  The ex-girlfriend telephoned the defendant's father, who was out, and asked him to come home.  When his father got home the defendant left and went to his mother's flat.  He threatened to jump from her balcony, and she too called the defendant's father for help.  The defendant's father visited his ex-wife's flat and the defendant, whilst aggressive and uttering threat of violence, agreed to return to his flat with him.  As they exited the lift though, the defendant grabbed his father around the throat again and kicked him several times in the shins (Count 3).  His father used his walking stick to fend him off.  Fortuitously a third party came on the scene and the defendant ran away.  This time a complaint was made and the Police investigated both incidents.

The defendant eventually admitted the assaults, the Court having received two psychiatric reports confirming that he was fit to plead.

Details of Mitigation:

Guilty plea, history of mental illness, remorse.

Previous Convictions:

15 previous convictions comprising 53 offences, 6 of which were offences of violence against the person.

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	4 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive.

Total: 2½ years' imprisonment.

Sentence and Observations of Court:

The Court was bound by Capuano and, in absence of satisfactory legislation covering the sentencing of those with mental illness, noted that the most effective way of dealing with the defendant was a period of custody (rather than a treatment order, which it had no power to make).  The Court again stressed, however, the need for an urgent amendment to the Mental Health legislation, which it noted had not been carried out despite similar concerns having been raised in AG-v-Le Blancq [2003] JRC 165.

Conclusions granted.

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

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE commissioner:

1.        This is a most difficult case.  Highfield is accused of one count of grave and criminal assault and two counts of assault.  All these offence occurred at Caesarea Court, Val Plaisaint.  To the alleged grave and criminal assault on Amy Le Masurier he pleaded not guilty and that was accepted.  There were two domestic incidents on the 21^st October, 2008 and the 17^th November, 2008. 

2.        Highfield is 28 years old and has 15 previous convictions comprising 53 offences and there are 6 previous offences of violence against the person.  These offences were brought against members of his family, as the Crown Advocate has most helpfully detailed. 

3.        In Capuano v AG [2004] JCA 168, the Court of Appeal, Beloff J. A. presiding, said in its detailed judgment:-

"78. it is objectionable to lengthen a sentence unduly for reasons connected with a perceived benefit to the offender, we see no reason in principle to differentiate such cases from one where an offender has been sentenced to a period of imprisonment longer than was considered otherwise appropriate, for the purpose of satisfying a criteria for transfer to another institution and in order to achieve such a transfer.

79. Indeed, in this case the two categories coalesce as the concluding words of the Bailiff's sentencing remarks made clear ""We hope, Capuano, that you will interpret this sentence as an attempt by the Court to give you the help for which you have asked."

80. We have carefully considered the language used by the Bailiff in paragraphs 20 and 23 and we have concluded that Miss Fogarty's argument as to their meaning has been made out.  In our judgment the Appellant is justified in his assertion that, absent the intention to seek to ensure that he would be transferred to a "medium secure" institution in England, the Royal Court would not have added to the Crown's conclusions by a figure as high as eighteen months, an increase so that (as the Bailiff said) " ... a total sentence should be imposed which will enable Capuano to be transferred to England and to receive treatment ..."

The appeal was therefore allowed, but the Court did say this:-

"However we also agree with the Royal Court that any sentence on this Appellant must reflect an element of public protection.  We do not consider that that this matter was given sufficient weight in the Crown's Conclusions."

4.        We have given careful consideration to all the cases cited by the learned Crown Advocate.  What has caused us most concern are the reports, one by the Probation Officer, one by the Alcohol and Drugs Service, and the two psychiatric reports.  In 2005 Dr Sharkey said:-

"John's personal chaos is such that any of the non-custodial options would provide no value.  The Probation staff would not provide any additional support given the extent of the help that he has received." 

The Probation Officer does say that:-

"The most effective way of accessing such intervention appears to be the imposition of a suitable period of custody commensurate with these offences which will enable the appropriate procedures to be put into action.  If the Court is able to concur, it only remains to hope that the financial considerations do not outweigh those of justice." 

5.        But we are bound by the Court of Appeal in Capuano and the Crown has asked for a period of 2 years for the grave and criminal assault and 4 months for the common assault.  We have read most carefully the reports of all the experts in this case.  Sadly the Probation Officer has not been made aware of the Court of Appeal's judgment in Capuano as his report states:-

"The option with the most likelihood of success seems to be a period of imprisonment in Jersey of sufficient length to enable a transfer to the UK prison system to be arranged under Section 34 of the Jersey Mental Health Act". 

6.        As the Director of the Alcohol and Drugs Service says in his conclusion:-

"Whatever the Court decides by way of disposal, it is clear that local services have attempted to support and treat the defendant's complex health and social needs but due to escalation of his chaotic behaviour, it must be questioned whether his needs could now be fully met in a small Island's jurisdiction."

7.        We have also read the lengthy psychiatric reports.  Dr Kinane concludes with these words:-

"I would recommend that Mr Highfield receives psychiatric treatment in a mental health hospital, given is history of violence this may need to be a hospital of at least low, if not medium, security.  This would enable Mr Highfield to have a wide variety of treatment, including nursing care, counselling from nursing staff regarding his mental health and the need for treatment, medication, medical reviews of his mental state to ensure medication is optimal, occupational therapy programme to maintain and support skills of daily living and psychological treatment, which in Mr Highfield's case should include an assessment of his personality, a structured risk assessment in order to inform risk management strategies, substance misuse prevention work and offending behaviour work including victim empathy.  Mr Highfield should be encouraged to develop a good understanding of his illness and the benefits of medication."

Dr Jonathan Pyott, another psychiatrist, concludes with these words:-

"Mr Highfield should continue to be monitored by prison mental health Inreach services and if Mr Highfield's condition were to deteriorate or if he is presenting a risk of harm to himself, the provision of transferring Mr Highfield to local psychiatric facilities were used as an interim measure.

There are currently no beds available at the Trevor Gibbens Unit for me to recommend the admission of Mr Highfield.  However, the commissioning authority in Jersey could approach the Trevor Gibbens Unit at the point that his transfer was arranged to see whether a bed was available at that point.  Alternatively, I would be willing to discuss with local commissioner recommendations for alternative placements in the independent sector."

8.        The Crown Advocate has recommended a custodial sentence, and Advocate Baglin has referred us to the case, of which we are well aware, of AG v Le Blancq [2003] JRC 165, where the Court said:-

"The gap in the current Jersey legislation meant that the Court had no power to make the order which all experts agreed was the order which should be made.  As long ago as 1989 the Court of Appeal had indicated an amendment to Jersey's Mental Health legislation was required.  The Court hoped that the Health and Social Services Committee would take urgent action to rectify the position."

9.        To allow Highfield to maintain his liberty is not permissible, the only way we can proceed is to impose a custodial sentence.  We would ask the prison governor to deal with this matter in any way that he can and to ensure that Highfield does take his medication.  We would also ask the Crown Advocate to get in touch with the Minister of Health and the appropriate scrutiny panel with all the problems that we have faced today.

10.      Highfield you are sentenced, therefore, on count 1; 2 years' imprisonment, count 2; 4 months' imprisonment, count 4; 6 months' imprisonment.  Counts 1 and 2 are to run concurrently but consecutive to count 4, which occurred on a different occasion.  The time that you have spent already on remand will be taken into account.

Authorities

Capuano v AG [2004] JCA 168.

AG v Le Blancq [2003] JRC 165.

AG-v-Brolly 1998/230.

AG-v-Leitch 2000/76.

AG-v-De Sousa 2001/69.

AG-v-Vale [2003] JRC 201.