Jersey Unreported Judgments

2000/231

5 pages

 

ROYAL COURT

(Samedi Division)

 

22^nd November, 2000

 

Before:    Sir Philip Bailhache, Bailiff and

                                                      Jurats de Veulle, Potter, Quérée,

                                                      Bullen, Le Breton and Allo.

 

 

The Attorney General

 

-v-

 

Brian Jamie Botting (aka Stopher)

Jason Martin Kelly.

 

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 13^th October, 2000, following guilty pleas to the following counts:

 

BRIAN JAMIE BOTTING

 

First Indictment

 

1 count of:   driving a motor vehicle without a licence, contrary to Article 31 of the Road Traffic (Jersey) Law, 1956 as amended

(count 1);

1 count of:   using a motor vehicle uninsured against third party risks contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948 (count 2); and

4 counts of:  larceny (counts 3, 4, 6, 7).

 

Second Indictment (with co-accused,  Jason Martin Kelly)

 

1 count of:   being carried in a motor vehicle without the owners consent or other legal authority, contrary to Article 28(1) of the Road Traffic (Jersey) Law, 1956 (count 2).

 

[On the 13^th October, the accused pleaded not guilty to count 5 of the First Indictment, and to count 1 of the Second Indictment, which pleas were accepted by the Crown].

 

Age:     22.

 

Plea:    Guilty

 

Details of Offence:     Larceny - opportunistic.

 

Details of Mitigation:      Chaotic family background; tragic deaths in family; drug addiction; relative youth; guilty pleas.

 

Previous Convictions:     Common assault;  Miscellaneous motoring offences including no licence/insurance; possession of cannabis x 2.

 

Conclusions:                         First Indictment: count 1: 1 month's imprisonment

                                                 count 2:  1 month's imprisonment.

                                                 count 3:  6 months' imprisonment.

                                                 count 4:  6 months' imprisonment.

                                                 count 6:  12 months' imprisonment.

                                                 count 7:  12 months' imprisonment.

                  Second Indictment count 2:  6 months' imprisonment

                  All concurrent:         TOTAL:                6 months' imprisonment.

 

 Sentence & Observations of Court:  1 year's Probation Order with condition of attendance at SMART course and Alcohol & Drugs  Service and being subject to random urine tests.

 

 

JASON MARTIN KELLY

 

Second Indictment  (with co-accused Brian Jamie Botting)

 

1 count of:   breaking, and entering, and larceny  (count 1);

1 count of:   grave and criminal assault (count 3);

1 count of:   taking and driving away a motor vehicle without the owners consent/other lawful authority, contrary to Article 28(1) of the Road Traffic (Jersey) Law, 1956 (count 4);

1 count of:   driving a motor vehicle without a licence, contrary to Article 3(1) of the Road Traffic (Jersey) Law, 1956 as amended

(count 5);

1 count of:   using a motor vehicle whilst uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948 (count 6).

 

Age:   20

 

Plea:   Guilty

 

Details of Offence: 

 

Grave and criminal assault on Police Officer acting in the course of his duty; deliberate intent to cause injury to officer; psychological effect on officer.

 

Details of Mitigation:   Very few, relative youth and eventual guilty pleas.

 

Previous Convictions:   Taking without owners consent.  Grave and criminal assault.

 

Conclusions              Second Indictment: count 1: 18 months' imprisonment;

                                                                  count 3: 6 ½ years' imprisonment;

                                                                  count 4: 6 months' imprisonment;  12 months' disqualification from driving;

                                                                  count 5: 1 month's imprisonment;

                                                                  count 6: 1 month's imprisonment.

                                    All concurrent:        TOTAL: 6 ½ years' imprisonment; £300 fine or 12 months' disqualification from driving.

                                                                                Deportation on release.

 

Sentence & Observations of the Court:

 

                                    Second Indictment;  count 1; 18 months' imprisonment;

                                                                  count 3: 7 years' imprisonment;

                                                                  count 4: 6 months' imprisonment;

                                                                  count 5: £100 fine or I month's imprisonment in default of payment;

                                                                  count 6: 1 month's imprisonment; 12 months' disqualification from driving.

                                    All concurrent:        TOTAL: 7 years' imprisonment; £100 fine or 12 months' imprisonment in default of        payment.

                                                                                12 months' disqualification from driving.

 

 

                                        N.M. Santos Costa Esq., Crown Advocate;

                              Advocate S.A. Pearmain for B.J. Botting (aka Stopher);

                                                Advocate J. Grace for J.M. Kelly.

 

 

JUDGMENT

 

THE BAILIFF:

 

1.               The grave and criminal assault upon Police Constable Ford was an appallingly violent attack  which could very easily have killed or maimed a police officer going about his routine duties.

 

2.               Kelly deliberately drove at the Police Officer on his motor cycle, in order to make good his escape,  Fortuitously no grave injury was suffered, but it is clear from what we have read that the officer suffered great physical pain and psychological distress.

 

3.               In R -v- Hall (1997) 1 Cr.App.R.(S) 62, Sachs, J was reported as saying: 

 

"Every day of the year policemen and policewomen go out to do their duty to safeguard the interests of the public, and to protect the public as appropriate.  In the world in which we live unfortunately they face danger or the risk of danger whenever they go out on the beat, in patrol cars, and in all the other ways in which police officers go into the community to serve the public."

 

4.               We endorse those remarks.  Police officers are entitled to receive, and will receive, such protection as the Court can give.   That means that the Court will punish severely those who commit violent attacks upon police officers carrying out their duty.

 

5.               We have considered, obviously, the Criminal Justice (Young Offenders) Law, 1994, but we are entirely satisfied that the offence of grave and criminal assault upon a Police Officer is so serious that a non-custodial sentence cannot be justified.  We have discounted, in accordance with the request of defence counsel,  the evidence of  P.C. Kinnear, which we do not consider to be relevant to sentence in this case.

 

6.               We have taken account of the youth of Kelly, of his guilty plea, and of his expression of remorse, even if this has come rather late in the day.   We have taken for this offence a starting point of 10 years' imprisonment, and we have allowed a discount of  2 ½ years for the guilty plea, and 6 months for the youth of the accused, and other mitigation.

 

7.               Kelly stand up please.  You will be sentenced on the offences to which you have pleaded guilty, as follows: on count 1, to 18 months' imprisonment; on count 3, to 7 years' imprisonment; on count 4, to 6 months' imprisonment; on count 5, to a fine of £100 or 1 month's imprisonment, concurrent; on count 6, to 1 month's imprisonment.  You will be disqualified from holding a driving licence for a period of 12 months, and finally I have to warn you that you may be liable to supervision on your release.

 

8.               So far as the recommendation for deportation is concerned, because the Bailiff is currently the Deputy Governor, the Court proposes to make no recommendation but to leave the matter for the consideration of the new Lieutenant Governor after he has been sworn into office.

 

9.               Stopher, come out and stand in front of the Court. 

 

10.           Stopher you have behaved very foolishly in many of the offences which you have committed, but the Court has taken account of the background reports and of the difficulties which you have been facing in recent months.    We also take account of the fact that you have in fact already served some 7 or 8 weeks in prison on remand for these offences, and we think that you have been punished enough for the offences which you have committed.

 

11.           We are going, therefore, to place you on probation for a period of 12 months, subject to the usual conditions that you be of good behaviour during that time, and that you live and work as directed by the Probation Officer.  We also make these further conditions: that you attend and participate in the SMART programme for such a period as the Probation Officer may direct; that you attend at the Alcohol and Drugs Service as requested; that you refrain from taking illegal opiates and other non-prescribed drugs, and that you submit to random urine testing for illegal drugs from time to time.   Do you understand all those conditions?  Very well, on that basis you are free to leave the Court.

 

12.           We are grateful to both Counsel, and indeed to the Crown Advocate.

 

 

Authorities

 

R -v- Hall [1997] 1 Cr.App.R.(S) 62.

R -v- Boulter [1996] 2 Cr.App.R.(S) 428.

A.G. -v- Aubin (14^th May, 1987) Jersey Unreported.

A.G. -v- Dubois, Louis, Wakeling (4^th February, 1994) Jersey Unreported.

Marie -v- A.G. (11^th June, 1992) Jersey Unreported.