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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Y v AG 26-May-2021 [2021] JRC 143 (26 May 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_143.html Cite as: [2021] JRC 143 |
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Superior Number Appeal - larceny - motoring
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Before : |
J. A. Clyde-Smith O.B.E., Esq., Commissioner, and Jurats Christensen, Dulake and Averty |
Y
-v-
The Attorney General
Advocate S. E. A. Dale for the Appellant.
S. C. Thomas Esq., Crown Advocate
JUDGMENT
THE COMMISSIONER:
1. The Appellant contends that the sentence of 240 hours' Community Service imposed upon him by the Inferior Number on 12th February 2021 for larceny was wrong in law, and that the disqualification from holding or obtaining a driving licence for 12 months imposed upon him on the same occasion was manifestly excessive.
2. The Appellant, who is 17, was jointly charged with Z, also aged 17, with robbery or in the alternative with larceny alleged to have been committed on 12th May 2020 at St Lawrence football pitch, and with carrying an offensive weapon on the same occasion. We will refer to the Appellant and Z together as "the Defendants".
3. The facts are more fully set out in the sentencing judgment of the Inferior Number (AG v Z and Y [2021] JRC 044), but in brief, the Defendants had arranged to meet with C (aged 14) at St Lawrence football pitch in order to supply him with cannabis. The Defendants did not intend to supply any drugs but planned to snatch the cash and make off. C's older brother, B, was concerned about his younger brother's cannabis use, and wanted to find out who he was acquiring it from. He therefore went to St Lawrence football pitch with his younger brother, who was told to hide out of sight.
4. At St Lawrence football pitch, B remained seated in the driver's seat of his vehicle with his mobile phone between his legs ready to take a picture of the drugs being handed over, as planned. Z opened the door of the vehicle and asked him to count up the money to pay for the drugs. When B had counted out £380, Z leant forward and snatched the cash from him.
5. It was the Crown's case that at the same time as the cash was being counted, Z produced a kitchen knife, and accordingly the Defendants were charged with robbery, on the basis that this was a joint enterprise between them.
6. The Defendants were both acquitted of robbery following a jury trial. It would seem that was because the jury could not be sure whether the knife was produced by Z at the time that the money was taken, which is what is required to establish robbery, or very shortly afterwards.
7. After the money had been taken, Z was seen to brandish the kitchen knife and make thrusting movements towards B's chest. B kicked Z's moped on to its side and went to take a shovel from the rear of his truck, in order to defend himself. Z jumped on to the back of the Appellant's moped and they left the area, being chased by B. A witness saw Z holding a knife as the moped sped past her on to the main road.
8. Z had pleaded guilty to larceny in the alternative to robbery. The Appellant had not, and he was convicted of larceny by the jury. The Defendants were also convicted by the jury of carrying an offensive weapon on the same occasion. It follows from this that the jury were sure that Z carried a kitchen knife to the scene of the offence, intending to use it to cause injury to a person if necessary, and that the Appellant knew this.
9. At the sentencing hearing on 12th February 2021, the Appellant stood to be sentenced for the larceny of £380 and carrying an offensive weapon as well as a number of lesser offences, namely one count of larceny of a bottle of gin, one count of larceny of two bottles of alcohol, two counts of threatening, abusive or disorderly conduct and three counts of driving offences to which we will come in a moment.
10. Z stood to be sentenced for the larceny of £380 and for carrying an offensive weapon, together with one count of importing LSD. He also stood to be sentenced for a number of lesser offences.
11. As the Defendants were aged 17 when being sentenced, the provisions of the Criminal Justice (Young Offenders) (Jersey) Law 2014 ("the Young Offenders Law") applied. Under Article 1, each Defendant is defined as a "young person" being a person who has attained the age of 15 years and has not attained the age of 18 years.
12. Under Article 4(1), the Court may pass a sentence of youth detention on a young person, but the power to do so is restricted in two ways, firstly under Article 4(2):
13. Secondly Article 4(6) further provides:
14. The Court can pass a sentence of youth detention upon a young person exceeding 12 months in the case of serious offences, and this pursuant to Article 5, which is in the following terms:
15. In this case, the Crown submitted that the larceny was a serious offence, which pursuant to Article 5(3) permitted the Court to impose a sentence of youth detention of 2 years in respect of both Defendants, on the basis that the three conditions in Article 5(3) were met in that:
(i) the sentence for larceny is at large, and is an offence that is punishable in the case of a person aged 21 years or over with imprisonment for 14 years or more;
(ii) larceny is not an offence for which sentence is fixed by law; and
(iii) in the view of the Crown none of the other methods in which the case may be legally dealt with was suitable.
16. The Inferior Number agreed in the case of Z that Article 5 applied, and it imposed a sentence of 18 months' youth detention upon him for the larceny (with lesser concurrent sentences for the other offences), saying this at paragraph 35:
17. When it came to the Appellant, the Court concluded that there was another method by which the case against him could legally be dealt with and which was suitable, because of the mitigation that was available to him. Quoting from paragraph 42 of the judgment of the Inferior Number:
18. The alternative method was community service, and the Court sentenced the Appellant to 240 hours' community service for the larceny, 150 hours' community service for carrying an offensive weapon and lesser hours for the other offences, all to be served concurrently making a total of 240 hours' community service. The Appellant was also placed on probation for 18 months and disqualified from holding or obtaining a driving licence for 12 months.
19. According to the scale used routinely by the Magistrate's Court and the Royal Court ("the Scale") for calculating community service hours, 240 hours' community service equates to a sentence of youth detention of 18 months, greater than the period of youth detention that is permitted under Article 4(6). This is the central issue in the appeal.
20. Before dealing with that issue, it is necessary to set out the relevant provisions of the Criminal Justice (Community Service Orders) (Jersey) Law 2001 ("the Community Service Law"). Under Article 2(3):
21. Article 3(4) provides:
22. Finally, Article 3(5) provides:
23. In passing sentence upon the Appellant and in the order, the Inferior Number omitted to state the sentence of youth detention which it was considering passing.
24. As Crown Advocate Thomas submitted, Article 4(6) of the Young Offenders Law should be read strictly as reflecting a sentencing policy which regards it as undesirable for a 17-year-old offender to serve more than 12 months in custody. The reason for such a policy is not difficult to understand, given the adverse impact that the deprivation of liberty is likely to have on a young person.
25. Advocate Dale's contention was straightforward. The Inferior Number had found that Article 5 did not apply because there was another method of dealing with the Appellant, namely community service. It was, therefore, bound by the restrictions in Article 4(6) of the Young Offenders Law. Community Service is a direct alternative to imprisonment, and the Court had to start with a sentence of imprisonment it had in mind passing, which pursuant to Article 4(6) could only have been one of 12 months' youth detention, for which the equivalent in community service hours, according to the Scale, is 180 hours rather than the 240 hours imposed. It was clear, she said, that in error the Inferior Number had in mind passing a sentence of 18 months' youth detention, a sentence it could not impose outwith Article 5 of the Young Offenders Law.
26. Crown Advocate Thomas' response was equally straightforward. He accepted that Article 4(6) of the Young Offenders Law applied and restricted the Court from imposing a sentence greater than 12 months' youth detention, but he pointed out that the Inferior Number had not imposed any sentence of youth detention upon the Appellant at all. Article 4(6) had not, therefore, been infringed. There was no restriction under Article 4(6) as to the number of community service hours that the Court could impose, and, as the Scale is not in any way binding on the Court, it was open to the Court to impose 240 hours of community service.
27. There was some discussion as to what would occur if the Appellant had refused to undertake any of the community service hours imposed upon him and was promptly brought back before the Court. The Court on that occasion would be bound by Article 7(4)(b) of the Community Service Law which enables it to revoke the order and deal with the offence in respect of which the order was made "in any manner in which the offender could have been dealt with for that offence by the court which made the order." Advocate Dale submitted that the Court on that occasion would be unable to impose a sentence of youth detention beyond 12 months, which under the Scale is equivalent to 180 hours' community service. Crown Advocate Thomas accepted that to be the case but submitted that the Court would be entitled to go back to Article 5 and impose a longer sentence on the basis that in view of the default, there was now no other method of dealing with the Appellant. In any event, he said the sentence to be imposed on that occasion would be considered separately at that time.
28. We accept that the larceny was a serious offence, but agree with the Inferior Number that in the case of the Appellant it could legally and suitably be dealt with by way of community service because of the mitigation that was available to him.
29. It is clear both from the submissions made by counsel to the Inferior Number and its judgment that it had Article 4(6) and Article 5 of the Young Offenders Law very much in mind when it addressed the sentence of Z. He was found to be within Article 5 and therefore a sentence of 18 months' youth detention for the larceny was permissible in his case.
30. The Inferior Number then turned to the Appellant, stating that he came within "a hair's breadth of the same sentence" for the larceny, namely 18 months youth detention. For the reasons given, it found that the Appellant could be dealt with by way of community service, but in order to do so legally the maximum period of youth detention it could have considered passing outwith Article 5 was one of 12 months youth detention. It is clear from the judgment, however, that the sentence of youth detention the Inferior Number was considering imposing upon the Appellant was 18 months (the same as Z) which under the Scale equated to the 240 hours of community service it imposed.
31. We accept that the Scale is not binding on the Court, but save for technical adjustments it is invariably followed by the Courts and has been given some statutory recognition, in that Article 4(2) of the Community Service Law provides as follows:
The reference to a limit of 180 hours in the Magistrate's Court equates under the Scale to a sentence of 12 months, which is the limit of the Magistrate's Court's jurisdiction in criminal cases.
32. Once the Inferior Number determined that Article 5 did not apply because the case could legally be dealt with by community service, it fell immediately into the restrictions imposed by Article 4(6) of the Young Offenders Law. The only sentence of youth detention it could legally have in mind imposing outwith Article 5, therefore, was one of 12 months, which equates to 180 hours of community service. We conclude, therefore, that the Inferior Number erred in imposing 240 hours of community service.
33. We see nothing objectionable in the Court being restricted in this way as it is consistent with the underlying policy of the Young Offenders Law to limit the time a young person can spend in custody, save in serious cases where no other method will do.
34. As the English Court of Appeal observed in Reg. v Fairhurst (C.A.) 1 W. L. R. 1374 at 1377 in the context of Section 7(8) of the Criminal Justice Act 1982 and Section 53(2) of the Children and Young Persons Act 1933 (which are broadly equivalent to Articles 4(6) and 5 respectively of the Young Offenders Law):
35. In this case the difference between the sentence of 18 months' youth detention the Inferior Number was considering and the 12 months permitted under Article 4(6) is not so great that 12 months can be regarded as an inappropriate term.
36. We accept that Article 4(6) of the Young Offenders Law places no restriction on the number of community service hours that can be imposed as an alternative to youth detention, and that it would be possible for the Court to be considering a sentence of 12 months' youth detention, but to impose a greater number of hours than those shown in the Scale, which is not binding upon it. That is not, however, how the Inferior Number appears to have approached the issue, for if it had approached it that way, we would expect some reference to have been made to this in its judgment. It would have meant adding some 60 hours to the 180 hours set out in the Scale, an increase that might be argued to be excessive.
37. We therefore allow this ground of appeal and reduce the number of community service hours imposed upon the Appellant from 240 hours to 180 hours which is equivalent to a sentence of 12 months' youth detention.
38. The Appellant pleaded guilty to one count of careless driving, one count of failing to comply with a condition of his provisional licence and one count of failing to conform to a traffic light. These offences all took place on one occasion, and the Appellant's driving is described in the Crown's summary of facts at paragraph 34 in this way:
"34 Ten days later at around 19.30 hrs on 23 May 2020, PC Howgate was driving in a marked police van along Cheapside when he saw [Y] driving his moped, which was displaying an L plate, carrying [Z] as a pillion passenger. The officer followed the moped down Gloucester Street. As the moped passed Newgate Street, which runs along the bottom of the General Hospital site, [Y] accelerated and crossed over two lines of traffic without indicating. As he reached the end of Gloucester Street a car in front of him stopped because the traffic light was red. [Y] swerved around the stationary vehicle and through the lights. He turned left onto the Esplanade. Later [Y] was seen on police CCTV turning left into Conway Street. As he turned the [Y] had to put his foot down to stop himself from falling off. The police officer had not illuminated the lights or sirens on his vehicle as he followed [Y's] moped as he was aware that [Y] was a youth and did not wish to create additional danger by engaging in a police pursuit."
39. No separate penalty was sought by the Crown for these offences, save for 24 months' disqualification from holding or obtaining a driving licence, and that was on the basis of the Crown moving for a 2-year sentence of youth detention. Allowing for his release for good behaviour, Advocate Dale submitted that in practice, if he had been sentenced to 2 years youth detention, this would have meant the disqualification biting for a period of some 9 months or so after his release. She said the Crown was effectively suggesting that the disqualification should run consecutively to the period of youth detention, or put another way, the Crown was suggesting that the punishment be postponed. As it was, the Inferior Number did not impose a sentence of youth detention, but disqualified the Appellant for 12 months, in effect a disqualification that would bite in practice for longer than the Crown had intended.
40. Advocate Dale referred the Court to the Magistrate's Court Guidelines, and the starting points for first time offenders pleading guilty, which under the most serious Category C for careless driving (bordering on dangerous driving), indicated a range of between 1 to 6 months. For the most serious Category C of breaching the condition of a provisional licence, the guidelines suggest a disqualification of six months and under the least serious Category A for failing to obey a traffic light signal (no injury or damage), the guidelines suggest no disqualification. The note to the guidelines alerts the Court to the danger of double counting, if, for example, there is a careless driving charge at the same time. The disqualification was imposed in relation to the careless driving charge, but these offences all form part of one piece of driving and any disqualifications imposed under the three counts would run concurrently.
41. Crown Advocate Thomas reminded the Court that the Magistrate's Court Guidelines have no statutory force. The Appellant had admitted a serious case of careless driving and was fortunate not to face a charge of dangerous driving. He said the Inferior Number plainly took all matters into account and concluded that although there was to be no separate penalty for the driving itself, a term of 12 months' disqualification was appropriate. That was a conclusion which the Inferior Number was entitled to arrive at, and it is not contrary to statute and was not manifestly excessive.
42. We accept that the Magistrate's Court Guidelines are just that and are not binding on the Court. At the same time, it is desirable for there to be some consistency in the sentences imposed by the courts for similar offences for which the Magistrate's Court Guidelines are an extremely valuable tool. We have two concerns:
(i) The disqualification is for a longer period (in practice) than that sought by the Crown and there was nothing in the judgment to explain why that was thought appropriate.
(ii) The disqualification of 12 months is double the highest range of starting points indicated by the Magistrate's Court Guidelines and therefore, taking into account aggravating and mitigating factors, way in excess of what would probably have been imposed if the Appellant had been sentenced before the Magistrate's court.
43. These were first time driving offences by a 17-year-old, and we accept that, in the circumstances, the period of disqualification was manifestly excessive. We therefore allow this ground of appeal, set aside the disqualification for 12 months and impose a disqualification for 6 months.
44. In summary, both appeals succeed and:
(i) We reduce the sentence imposed in respect of the larceny to 180 hours' community service which is the equivalent of 12 months' youth detention.
(ii) We set aside the disqualification for holding or obtaining a driving licence for 12 months and impose a disqualification of 6 months from 12th February 2021
