2001/153
COURT OF APPEAL
(Superior Number)
(exercising the appellate jurisdiction conferred upon it by
Article 22 of the Court of Appeal (Jersey) Law, 1961).
23rd July 2001
Before: |
Sir Philip Bailhache, Bailiff, and Jurats Myles, Le Ruez, Rumfitt, Potter, Quérée, Le Brocq, Tibbo, Bullen, Le Breton, and Georgelin |
Francisco Ambrosio FRANCO
-v-
The Attorney General
Application for leave to appeal against a total sentence of 1 year's imprisonment, passed on 24th May, 2001, by the Inferior Number of the Royal Court, following a guilty plea to:
1 count of: |
possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 1: MDMA, on which count a sentence of 1 month's imprisonment was passed. |
1 count of: |
supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978: Count 2: MDMA, on which count a sentence of 4 months' imprisonment, concurrent, was passed. |
Breach of a 3 year probation order with 240 hours community service made by the Superior Number of the Royal Court on 21st December 1999 (see Jersey Unreported Judgments of that date; [1999/223]), following a guilty plea to:
2 counts of: |
kidnapping (counts 1 and 3) and |
2 counts of: |
indecent assault (counts 2 and 4) |
On which counts the following sentences were passed.
Count 1: |
9 months' imprisonment |
Count 2: |
3 months' imprisonment |
Count 3: |
12 months' imprisonment |
Count 4: |
3 months' imprisonment |
All concurrent, and concurrent with sentences passed on present indictment.
The application for leave to appeal placed directly before the plenary Court, without first being submitted to Single Judge for consideration and determination.
Advocate N.J. Chapman for the appellant.
P. Matthews, Esq., Crown Advocate.
JUDGMENT
THE BAILIFF:
1. This is an application for leave to appeal against a total sentence of twelve months' imprisonment imposed by the Inferior Number in respect of two sets of offences.
2. The first set involved two counts of kidnapping and two counts of indecent assault for which the applicant was placed on probation for three years on 21st December, 1999, and ordered to perform 240 hours' community service. He admitted breaching the probation order and was sentenced to nine and twelve months' imprisonment respectively on the kidnapping counts and to three months' imprisonment on each count of indecent assault.
3. The second set of offences involved the possession and supplying of an ecstasy tablet for which he was sentenced to one month and four months' imprisonment respectively. All those sentences were ordered by the Inferior Number to run concurrently.
4. We have heard submissions from counsel fully on the basis that this was an appeal and we accordingly formally grant leave to appeal and I shall hereafter refer to the applicant as the appellant.
5. In order to do justice to this appeal we need to state in a little more detail the circumstances of the offences. The 1999 offences were very serious. The appellant admitted that, on two occasions, he kidnapped and indecently assaulted 17 year old youths. On the first occasion he gave a lift to the youth 'X' in the early hours of the morning. X was thumbing a lift along St. Martin's main road in order to get back to St. Martin's Arsenal. Instead of driving towards X's home, the appellant turned off towards Gorey on the pretext that he was collecting some friends. He drove past Gorey towards St. Catherine and began making homosexual advances, touching the youth's knee and saying that he wanted to give X a "blow job". X was alarmed but unable to escape from the moving vehicle. Eventually he pulled on the handbrake, causing the car to stall. He was pulled back by the appellant as he tried to get out of the car but he was eventually able to make his escape and he flagged down another car, the driver of which summoned the police.
6. On the second occasion the appellant again offered a lift in the early hours of the morning to a youth 'Y'. On this occasion the appellant drove into unlit country lanes, again making homosexual advances, touching Y's leg and placing his hand in the region of Y's testicles. The appellant eventually drove onto a small track near the Devil's Hole and turned off the headlights, making suggestive movements with his tongue at Y, who was in great fear. The appellant stopped the car and was rubbing his penis over his trousers and smiling. Y had no doubt that the appellant wanted to have sex with him. Y hit the appellant in panic following which the appellant threatened to kill him. This ordeal continued for some minutes until Y was able to unlock the car door and to make good his escape across open fields.
7. When the appellant appeared for sentence before the Superior Number in December 1999 the Crown moved for a total of seven years' imprisonment. When passing sentence the then Deputy Bailiff warned the appellant that if he breached his probation order he would be facing the likelihood of a prison sentence. The judgment makes it clear that the Court was influenced by the failure of his business venture and by his difficult family circumstances and no doubt by the hope that with assistance from professionals he would be able to address his bi-sexual tendencies.
8. The facts of the 2001 offences were that the appellant found an ecstasy tablet in a nightclub and on leaving offered a lift to a 22 year old acquaintance to whom he gave the drug.
9. The purpose of the original probation order imposed in 1999 was two-fold. First, there was the punitive element of 240 hours' community service. The appellant has satisfactorily completed that community service and indeed performed it in record time. Secondly, the probation order was designed to help the appellant to address his bi-sexual tendencies and his attraction towards young men below the age of consent. His probation officer has stated that the appellant has never demonstrated his acceptance that he has broken the law and has denied making sexual advances to these young men. The appellant has been repeatedly advised not to give lifts in his car to young boys but the probation officer describes two occasions when it has come to her knowledge that that advice has been ignored. According to the probation officer the appellant is unable to explain why a 34 year old married man should want to spend time with young teenagers. The appellant is thus in breach of his probation order in two respects. First, he has committed further offences and has failed to be of good behaviour. Secondly, he has failed to follow the advice of his probation officer and to live as directed by her.
10. Mr. Chapman, who appeared for the appellant, has submitted that the sentence was manifestly excessive because the Inferior Number did not pay sufficient regard to all the mitigating circumstances. Those mitigating circumstances include the fact that he has completed his community service. Counsel submitted that the family is suffering severe financial hardship and of course the absence of the appellant is no doubt having a toll upon his wife and two small children. The appellant's wife has mental health problems which are being exacerbated by the imprisonment of the appellant.
11. In our judgment all these factors were given proper weight by the Court below. The imposition of a probation order is a serious matter as contended by the Crown Advocate. A probationer does not have a choice as to whether or not to comply with the advice of his probation officer. This appellant will continue to be a threat to the community until he fully acknowledges his problems and takes steps to avoid placing himself in situations where he might be tempted to offend. He was given an opportunity to address these problems in the context of probation supervision. He has not taken that opportunity and he must now be punished for the original offences. We hope that the appellant will continue to be seen by the visiting consultant psychiatrist at the prison and will take advantage of that and other advice that he will receive.
12. The sentences imposed by the Inferior Number were, in our judgment, entirely correct. The appeal is accordingly dismissed.
No Authorities