Jersey Unreported Judgments

 

2001/21

5 pages

COURT OF APPEAL.

 

23^rd January, 2001

 

Before:	Sir John Nutting, Bt., Q.C., President;
	P.D. Smith, Esq., Q.C., and; M.G. Tugendhat, Esq., Q.C..

 

 

Jason Martin KELLY

-v-

The Attorney General

 

 

Appeal against a total sentence of 7 years' imprisonment passed on 22^nd November, 2000, by the Superior Number of the Royal Court to which the accused was remanded by the Inferior Number on 13^th October, 2000,  following a guilty plea to the following counts:

 

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).

 

on which counts the following sentences were passed:

 

count 1:                      18 months' imprisonment;

count 3:                      7 years' imprisonment;

count 4:                      6 months' imprisonment;

count 5:                      £100 fine or 1 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 1 month's imprisonment in default of payment;                 12 months' disqualification from driving.

 

[Count 2 relates to a co-accused, Brian Jamie Botting (aka Stopher), who has not appealed.]

 

Leave to appeal was granted by the Deputy Bailiff on 12^th December, 2000.

 

 

Advocate P.M. Livingstone for the appellant.

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

 

 

JUDGMENT.

 

THE PRESIDENT:

 

1.            On the 22^nd November 2000 this Appellant was sentenced to serve a total of seven years' imprisonment by the Superior Number of the Royal Court.  He was granted leave to appeal to this Court by the Deputy Bailiff on the 12^th December 2000. 

 

2.            The Appellant, who is now twenty years of age, was jointly charged with another man, Brian Botting, in connection with a number of offences arising out of incidents which took place in the early hours of the 2^nd April 2000. 

 

3.            Shortly after midnight the Appellant stole a Honda car from outside an address in Cleveland Road.  He and Botting later drove to the Portelet Garage where the Appellant burgled the pump attendant's kiosk by breaking the glass in the door panel and removing an electronic till, cutting himself in the process.  Both men returned to Botting's flat, where they discovered, no doubt to their chagrin, that the till contained only parking paycards and petrol cards.  They decided to cut their losses and dispose of the vehicle and the till; and at about 6 o'clock that morning, with the Appellant at the wheel, the two men drove off to find a suitable location.  At 6.30 am P.C. Forde was driving his police motor cycle along Plat Douet Road when he saw the Honda being driven at what he considered to be an excessive speed.  The officer decided to follow the vehicle which reached speeds of between 50 and 65 miles an hour during the chase.  On the journey P.C. Forde activated his flashing lights and sounded his motor cycle siren.

 

4.            Initially the Appellant paid no attention to these signals but when he reached Caldwell Hall he slowed and then stopped the car.  P.C. Forde pulled up 15 feet behind the Honda and prepared to dismount to talk to the Appellant.  Suddenly he noticed the reversing lights of the car illuminate and saw it accelerating towards him.   He had insufficient time to dismount before the Honda hit the front wheel of the motor cycle.  The officer was thrown backwards with some force against the raised support behind the driving seat.   The Appellant then changed gear and attempted to speed away.   However the two vehicles had become entangled by the force of the collision and part of the front of the motor cycle had become wedged beneath the Honda.  This caused a slight delay before the Appellant managed to make his intended escape.  The two men then later abandoned the vehicle and returned to Botting's flat.

 

5.            In the meanwhile P.C. Forde managed to radio for assistance.  He was taken to the General Hospital where he was found to have bruising to his lower back and to be experiencing the effects of shock.  It is clear from medical evidence before us that he has suffered mentally and physically as a result of the incident. 

 

6.            The car was later found where the Appellant had abandoned it.  Blood on the steering wheel matched blood found at the garage and proved to be indistinguishable from the Appellant's blood.   He was arrested with Botting on the 6^th April 2000.

 

7.            At his trial the Appellant stood indicted for taking and driving away the Honda (count 4), breaking and entering and larceny (count 1) and grave and criminal assault on P.C. Forde (count 3).   The indictment also contained associated offences of driving without a licence and without insurance.  The Appellant pleaded guilty to all these offences and was sentenced, materially, to six months' imprisonment for taking and driving away the Honda, 18 months' imprisonment for breaking and entering the garage and larceny, and seven years for the grave assault on P.C. Forde. All the sentences were made concurrent.

 

8.            Botting, who appeared in Court in connection with a number of other matters, was only charged with allowing himself to be carried in the stolen car.  He has not appealed.

 

9.            We have been invited to review the sentence imposed on the Appellant for the grave and criminal assault.  No complaint is made in relation to the sentences passed for the other offences.   It is clear from an analysis of the sentencing remarks that in assessing the appropriate sentence for the assault, the Court took as their starting point the sentence of ten years, reduced it by 2½ years to reflect the plea, and by a further six months to reflect the Appellant's youth, thereby arriving at a total sentence of seven years imprisonment.

 

10.    There can be no doubt that the injuries inflicted on P.C. Forde were caused as a direct result of the deliberate ramming of the motor cycle at a time when the officer was sitting astride it and with the object of preventing the officer making any further pursuit.  Before this Court, Advocate Livingstone has argued that having regard to some English authorities, notably the case of R v Hall [1997] 1 Cr. App. R (S.) page 62, and R v Boulter [1996] 2 Cr. App. R (S.) page 428, the starting point for sentence in this case should have been eight years and not ten years.

 

11.    In R v Hall the Appellant, after a contested trial, was sentenced to twelve years' imprisonment for injuring a police officer in an attempt to evade capture by reversing his car as she was approaching the vehicle from the rear, knocking her down and running over her body with the back wheel.   The facts in R v Boulter involved, by contrast, a head-on collision between the Appellant's car and a police car, caused by the Appellant's recklessness in his attempt to escape pursuit, rather than by a deliberate and intentional act resulting in injury.   It is true that the conduct of the Appellant in R v Hall was graver than that of this Appellant and that the police officer in that case was more seriously injured than P.C Forde.   Those matters no doubt account for the fact that the Royal Court chose as a starting point a sentence two years lower than that passed in R v Hall.  But it was the deliberate act of ramming the motor cycle when the police officer was astride it which bears comparison to the facts of R v Hall and contrasts with the case of R-v-Boulter.  We consider that the Royal Court was correct in using the former rather than the latter as a guide to sentence.  We take the view that the ten year starting point was correct.

 

12.       Secondly, it is said, the Court failed to reflect the Appellant's youth in the sentence passed.  We were referred by Advocate Livingstone to certain authorities in which the Court of Appeal in England has suggested that sentences should be reduced by factors of between 20% and 40% to reflect the youth of certain appellants.   In our view youth is a matter which can be more readily taken into account where the Court is concerned with offences of lesser gravity than the instant offence.  The more serious the offence the less it is likely that a Court will be able to give a significant discount for youth, particularly as here, where any sentence passed must reflect a measure of deterrence and where it is important that the Court sends a clear message to those who are tempted to injure police officers engaged in the prevention or detection of crime.  This is an aspect of the case to which we will return.

 

We conclude that the six months' deduction for the Appellant's age was reasonable.

 

13.       Thirdly, it is argued that the lower court failed to give the Appellant sufficient credit for his plea of guilty.  We were referred to a number of authorities including Stewart v Attorney General (18th April 1994) Jersey Unreported, Attorney General v Lawlor (25th April 1994) Jersey Unreported, Attorney General v Hunter (5^th January 1995) Jersey Unreported, Attorney General v Kelly (16^th January 1995) Jersey Unreported, and Campbell and Ors v Attorney General (1995) JLR 136 CofA.  An analysis of these cases demonstrates that courts in this jurisdiction have usually awarded a one third reduction for a guilty plea.  But it must be remembered that the extent of credit given for an acknowledgement of guilt, will depend on the strength of the evidence.  A defendant who pleads guilty in reflection of overwhelming evidence will be given less credit than someone who has either by admissions provided the evidence on which he is tried or who is willing to acknowledge guilt where the evidence is weak.  In view of the scientific evidence in this case, we take the view that the Appellant had little choice in relation to his plea.  We consider that the 25% reduction allowed by the Royal Court was appropriate.

 

14.       We desire to emphasise that sentences in cases of this kind must contain an element of deterrence.  The trial judge in R v Hall indicated in his sentencing remarks that he intended to impose what he conceded was a heavy sentence of twelve years' imprisonment on the offender for the following reasons:  "To deter you, to deter others, to protect the police and to protect the public."

 

He added:

 

"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 risks of danger, whenever they go out on the beat in patrol cars and in all other ways in which police officers go into the community to serve the public."

 

15.    We endorse those remarks and we wish to make it clear that violent attacks on police officers, particularly with weapons, will not be tolerated by this Court.   This Appellant used a car deliberately to ram P.C. Forde's motor cycle.   He did so before the officer had dismounted and in circumstances in which the officer had no time to take evasive action.  He did so to avoid being arrested for the offences he had committed that night.  His conduct exposed the officer to the risk of very serious injury and it is by good fortune rather than by any mitigating feature in the Appellant's conduct that P.C. Forde was not more seriously injured.  The courts in this Island will seek to deter such behaviour.

 

16.    The appeal is dismissed.

 

 

 

Authorities.

 

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

 

Stewart-v-AG (18^th April, 1994) Jersey Unreported CofA.

 

AG-v-Lawlor (25^th April, 1994) Jersey Unreported.

 

AG-v-Hunter (5^th January, 1995) Jersey Unreported.

 

AG-v-Kelly (16^th January, 1995) Jersey Unreported.

 

Campbell & Ors-v-AG (1995) JLR 136 CofA.

 

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