Jersey Unreported Judgments

2001/113

ROYAL COURT

(Samedi Division)

21^st May 2001

Richard Philip Warder

-v-

The Attorney General

Magistrate's Court Appeal

Appeal against a sentence of 6 months' imprisonment passed in the Magistrate's Court on 20^th March 2001, on a guilty plea to 1 count of acting in a manner likely to cause a breach of the peace.

[The applicant was also sentenced to 1 months' imprisonment, concurrent, in relation to a breach of a binding over order, against which sentence there has been no appeal.]

Appeal allowed; sentence quashed; 4 month Probation Order substituted.

Advocate P.D. James for the Appellant;

Advocate A.J. Belhomme on behalf of the Attorney General.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 20th March 2001 the appellant was sentenced to six months' imprisonment for an offence of acting in a manner likely to cause a breach of the peace.  As well as that conviction he was in breach of a binding over order imposed on the 19th January for a charge of refusing to obey the police.  The binding over order was discharged and he was sentenced to one months' imprisonment concurrent.

2.        He now appeals in relation to the sentence of six months' imprisonment.  He was released on bail, pending the appeal and by that time he had, we were informed, served the equivalent of six weeks of the six month sentence.

3.        The facts giving rise to the breach of the peace charge can be very shortly stated.  At about  mid morning on the 19th March the appellant was in a private parking garage at the rear of premises in Kensington Place, where men tend to gather to drink.  When the owner asked him to move on the appellant was abusive and said that he would 'knock his block off'.  The police were called.  They attempted to give the appellant words of advice, but he remained argumentative. He had clearly been drinking. He was arrested and continued to make threats to the property owner as he was led away.

4.        However, the sentencing decision for the Relief Magistrate was not as straightforward as the facts of the case might suggest.  The appellant's marriage had recently come to an end.  He has found this impossible to accept and an existing problem with alcohol has become much worse.  During the last twelve months he has breached a non-molestation injunction, granted in favour of his wife, on numerous occasions and served various sentences of imprisonment for those breaches.  In addition, he has been before the courts for a number of criminal matters, such as obstructing the police, committing a breach of the peace and assaulting his wife on one occasion.  Furthermore, he has at times been an in-patient at St.Saviour's Hospital.

5.        The Relief Magistrate had before him reports prepared for the offence of obstructing the police, which came before the Magistrate's Court in January.  There was a social inquiry report, dated 20th December, 2000, a Drug and Alcohol report of the same date and a psychiatric report of the 24th November, 2000.  They were all broadly consistent with each other and presented a picture of a man who was very angry at what had happened to him, who was suffering, possibly, from a psychotic disorder and who blamed everyone but himself.  He had a serious alcohol problem.  He was at high risk of re-offending in relation to his wife, because he could not accept that he had no right to contact her.  Following those reports the Magistrate had bound the defendant over in January, no doubt in the hope that he would receive treatment. 

6.        When the present offence came before the Relief Magistrate on 20th March, he placed great reliance on paragraphs 18 and 19 of the social inquiry report, which made it clear that the appellant was not greatly motivated to change but that, were the Court to imprison the appellant for a significant period, he would have access to both psychiatric treatment and alcohol counselling in prison.  During this time, his wife would be afforded protection from harm.  The Relief Magistrate therefore took the view that he wished to imprison the appellant for a significant period, as referred to in the social inquiry report, in order to achieve these objectives.  Initially, he took the view that nine months was appropriate, but after submissions by counsel,  who submitted that a matter of only a few weeks was appropriate, the Relief Magistrate imposed the sentence of six months.  It is clear that he was very much influenced by the need for treatment in prison.

7.        When the matter first came before us we felt that it was not satisfactory to proceed on out of  date reports and we therefore adjourned the case for 4 weeks,  whilst up to date reports were obtained.  We have now received those and they have been very helpful. 

8.        We can sympathise with the Relief Magistrate as he considered what sentence to impose on this appellant, but in our judgment he fell into error.  We have been referred to the case of R-v-Clark (1975) 61 Cr. App. R. 320.  In that case, a woman who had a history of petty crime and anti-social behaviour, committed an offence of malicious damage by breaking a flower pot worth £1.  Not knowing what to do with her the magistrates sent it up to the Crown Court and the Crown Court, in order that she could receive treatment, imposed a sentence of eighteen months imprisonment.  The Court of Appeal condemned that decision in strong terms, stating that courts could only punish offenders for the crimes that they had committed.  It was not a proper function of the courts to supplement the social services, by sending to prison a person with whom those services could not cope, when a prison sentence was inappropriate.  The Court of Appeal quashed the prison sentence and replaced it with a fine of £2. 

9.        We have, this morning, been referred very helpfully by Mr Belhomme, who appears for the Attorney General, to an extract that from Thomas; Principles of Sentencing (2nd Ed) p.44, which is broadly to the same effect, although it appears that on one or two occasions in England the courts may have been inconsistent.  We would wish to assert the same principle, namely that one can only sentence for a particular crime.  Where a case justifies a prison sentence, it is not permissible to impose a sentence out of all proportion to the offence itself, with a view to helping the social services, by providing an environment for treatment.  The punishment must fit the crime.

10.      Mr James has referred us, in this case, to the Magistrate's Court sentencing guidelines, which propose for an offence of conduct likely to cause a breach of the peace, either a binding over order, or a fine, with imprisonment also available, but the suggested level is seven days with a doubling up for subsequent offences or persistent offenders. 

11.      We think it was perfectly reasonable for the Relief Magistrate to consider a prison sentence in this case in view of the appellant's previous behaviour, but it was a minor breach of the peace and could not possibly, of itself, justify a sentence of anything like six months, which was out of all proportion to the normal level of sentencing for an offence of this particular gravity.  As we have said, it is clear that the Magistrate was motivated by his desire to help the appellant by ensuring that he received treatment, but for the reasons we have given, this is not a permissible reason to impose a sentence which is much greater than the proper sentence for the particular offence.  We would, therefore, in any event, have reduced the prison sentence to one which was within the normal band for such an offence.

12.      However, we have now received the new reports, which have been of considerable assistance and the recommendation of the social inquiry report is that it would be helpful to impose a four month probation order, in order that four things could take place.  First, a multi-agency meeting should be convened in order to consider how to help this appellant.  Secondly, he should be encouraged to engage in psychiatric treatment when necessary.  Thirdly, he should be encouraged to maintain contact with the Alcohol and Drug Service and fourthly, he should be encouraged to complete a programme of anger control.  Although this is a course not without risk, we think it is the best disposal of  this matter and offers some hope of trying to rescue the appellant from his present course of self-destruction. 

13.      Stand up, Mr Warder.  We are not going to send you back to prison.  We are going to place you on probation for four months, but during that period you must do what you are told by the probation officer, because if you do not, he will bring you back to this Court and you may then be sent to prison.  Secondly, you must not commit any further offences because, again, if you do that you may find yourself being sent to prison.

14.       We are giving you a chance in order that you can seek the help which you say you wish to receive.  All the reports say that you are desperate for help to deal with your problem, in particular your problem with alcohol and your other difficulties.  That help is now going to made available to you, so we strongly advise you to take advantage of it.  We hope not to see you back  before us. 

15.      The appeal is allowed, the sentence quashed and a probation order of four months imposed.

Authorities

Thomas: Principles of Sentencing: p44; Offenders likely to benefit from treatment in prison.

R-v-Clark (1975) 61 Cr. App. R. 320.