Royal Court
(Superior Number)
(exercising the appellate jurisdiction conferred upon it by Article 22 of the Court of Appeal (Jersey) Law, 1961)
1 September 1999
Before: Sir Philip Bailhache, Bailiff,
and Jurats Myles, de Veulle, Quérée, Tibbo, Georgelin, and Allo
Lyndon Neil Marquer
v
AG
Application for leave to appeal against a total sentence of 2 years imprisonment, passed by the Inferior Number of the Royal Court on 19 February 1999 [1999.032] following a guilty plea to:
1 count of possession of a controlled drug with intent to supply it to another, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978:
count 1: cannabis resin, on which count a sentence of 3 months’ imprisonment was passed;
1 count of grave and criminal assault, on which count a sentence of 2 years’ imprisonment, concurrent, was passed.
(The Appellant also pleaded guilty to one count of malicious damage (count 3) and was given an absolute discharge].
Leave to appeal was refused by the Bailiff on 26 April 1999 and the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court on 30 April 1999.
Advocate J D Kelleher for the Appellant
N M Santos Costa, Crown Advocate
JUDGMENT
THE BAILIFF: On 19 February 1999 this applicant was sentenced by the Inferior Number of the Royal Court to two years’ imprisonment on one count of grave and criminal assault. He was also sentenced in respect of other offences, which are not material for these purposes, because the sentences were concurrent.
The applicant has applied for leave to appeal against sentence, and leave having been refused by a single judge on 26 April 1999 the application is renewed, as of right, to the full Court.
The grave and criminal assault in question was a serious one involving considerable injury to a 58-year-old woman with whom the applicant was living. In summary, her ribs were broken, she suffered a punctured lung, a broken elbow, swollen hands and wrists and considerable bruising, together with a cut to the forehead which required five stitches. It was described as a life-threatening assault. It was exacerbated by the fact that she was asleep when the assault took place.
The applicant himself was the victim of an even more appalling assault in 1986, when he was attacked while he, too, was asleep by a man wielding a lump hammer. The result of that assault was to leave the applicant brain-damaged, and unable to follow his previous occupation as a plumber. When the matter came before the Inferior Number in February this year, it is clear that the Court found the balancing exercise between retribution for the grave and criminal assault committed by the applicant and the interests of the offender very difficult to reconcile.
This Court does not criticise in any way the sentence imposed by the Inferior Number, and indeed we note that counsel for the applicant did not contend that the sentence was excessive in any way. Counsel for the applicant however, submitted that because of different circumstances which now obtain, the Court could exercise its power to take a different view from the lower Court.
It is true that this Court is in a different position. Largely, we understand, because of the initiative of counsel for the applicant, a comprehensive structured programme has been put together by the Health and Social Services Department, which, if followed, might lead to the rehabilitation of this man. We have been reminded that the applicant has already served the equivalent of some 13 months of his 2-year sentence, and the demand for retribution has, in part at least, been satisfied.
We have reached the conclusion that we should take the calculated risk of placing the applicant on probation, subject to his agreeing to follow the advice of all the relevant authorities, and subject, too, to his being accepted as a resident of Margaret House. That last requirement will necessitate assessment by the staff of the House, and we are therefore going to adjourn the hearing of this appeal for the period of time necessary for that assessment to take place.
We are accordingly going to adjourn until 9.45 am on Monday 18 October, so that the applicant’s suitability for residence at Margaret House may be assessed. If the result of that assessment is positive when the matter returns to this Court, we will formally impose a probation order. If the assessment is not positive then, subject obviously to any further submissions which may be made, it is likely that the application will be dismissed.
We wish to conclude by expressing our gratitude to both counsel for the careful way in which these submissions have been made in relation to this difficult appeal.
Authorities
A.G -v- Hanton (30th March, 1987) Jersey Unreported.
A.G -v- Howell (5th June, 1998) Jersey Unreported.
A.G -v- Taylor (29th July, 1994) Jersey Unreported.
A.G -v- Little (3rd August, 1998) Jersey Unreported
A.G -v- Norris (3rd June, 1992) Jersey Unreported
Brooke -v- A.G (23rd September, 1986) Jersey Unreported CofA
A.G. -v- Ruellan (16th November, 1990) Jersey Unreported.
A.G -v- Hesketh (15th January, 1990) Jersey Unreported.
Thomas: Current Sentencing Practice:
Part F: Mentally Disordered Offenders:
Part F1-1: R -v- McDonald (1983) 5Cr. App. R (S) 419 (F1-2A02]
R -v- Nicholls (19th February, 1981) (F1-2B01]
Thomas: Sentencing References, 1999:
p.99: Psychiatric Probation Order.