Jersey Unreported Judgments

[2004]JRC099

ROYAL COURT

(Samedi Division)

 

7th June 2004

 

 

The Attorney General

-v-

Antonio Romano Capuano

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded by the Inferior Number on 26th April, 2004, following Guilty pleas to:

 

1 count of:	Robbery (Count 1);
4 counts of:	Malicious damage (Counts 2, 4, 5, 8);
2 counts of:	Assault (Count 3, 7);
1 count of:	Grave and criminal assault (Count 6).

 

 

Age:     38

 

Plea:    Guilty

 

Details of Offence:

Count 1: Robbery.  Capuano was caught on CCTV in the Accident and Emergency Department reception area grabbing a mobile phone from a female and as the woman remonstrates to get her phone back, Capuano head butts her in the face and body shunts her causing bruising to her thigh.  The offence of robbery was committed at 02.30 hours.  The victim sustained bruising and swelling to the nose, left eyebrow and a large bruise on her thigh.  The Victim Impact Statement confirmed that following the incident she suffered from nightmares on some occasions and also felt nervous and frightened when going out on her own.  Capuano used the telephone on a number of occasions to telephone his girlfriend.  Following his arrest he was shown the CCTV recording and admitted that it was him who committed the offence.

Counts 2 and 3: Malicious Damage and Assault.  This incident was caught on the CCTV system operated by the shop.  Capuano was seen to walk in to the shop where he makes accidental contact with a Christmas tree knocking some of the baubles from the tree.  However, he then walks purposely and deliberately up to a large display cabinet at the rear of the shop pushing it over causing damage to the value of £632.  He then walks out of the shop.  A short while later he returned to the shop and entered a private office without being invited and then confronts the Manager of the shop.  He was aggressive and abusive towards her making threats that if she called the Police he would come back and finish the shop.  The Manageress was not physically assaulted but she was in fear of her safety by the threats and demeanour of Capuano.  A Witness Impact Statement also confirmed that she was adversely affected following this incident.  When Capuano was interviewed about Counts 2 and 3, he stated that he had been drinking with a friend visiting from Scotland and that the drink had reacted badly with his medication.  He claimed that he had stumbled into the glass case knocking it over and had no knowledge of having made any threats or adverse comments to the Manageress.  He did offer his apologies and expressed remorse for his behaviour.

Count 4: Malicious Damage.  Whilst in Police custody for the purposes of being interviewed on Counts 2 and 3 he was held in an interview room where he requested a cigarette.  He was advised that there was now a no-smoking policy and his request was therefore refused.  Capuano's reaction was to verbally abuse the Officer and then smash the glass panel in the interview room door with his elbow causing damage to the value of £128.41.

Count 5: Malicious Damage.  Capuano in relation to the other offences was remanded in custody.  A bail application made to the Magistrate's Court was refused and he then applied to the Royal Court for a review of the earlier decision.  During the course of the application in the Royal Court Capuano became agitated and started to shout and swear.  He was requested to calm down but when he refused to do so he was ordered to leave the Court.  He was placed in one of the cells located in the Royal Court building.  Whilst in the cell he kicked the door to the extent that the lock area was damaged rendering the cell insecure.  The cost of the damage was £300.

Counts 6 and 7: Grave and Criminal Assault and Assault.  At 02.00 hours on the 31^st January, 2004, whilst Capuano was on remand at H.M. Prison, La Moye, he asked Officers for the use of the landing's toilet facilities.  This was granted.  Approximately an hour later he asked to see the On-call Healthcare Officer but the request was declined.  He became more verbally abusive and aggressive and despite efforts to calm him down he refused to do so.  He then set fire to some of his own property within his cell, which fire had to be extinguished by the Officers present.  A decision was then made by the Management of the Prison to remove Capuano from his cell and to place him in a "quiet" cell on the punishment wing and this was for the purposes of his own safety and that of the other inmates.  He was requested to leave his cell but refused and a Control and Restraint Team were therefore recalled to duty.  Capuano was advised that if he did not voluntarily accompany the Officers then he would be forcibly removed and his response was "Come on, I'm ready for you, I'm going to fucking hurt someone".

Given his refusal to comply with the order to leave voluntarily authority was given for the 3 man team to enter his cell.  Capuano had barricaded the door from within with items of furniture and therefore a door reversal kit had to be used.  All 3 Officers were wearing protective clothing and using protective equipment including Senior Officer Langford who had a short Perspex shield.  Upon entering the cell, Capuano was standing on his bed and he threw towards the Officers a pot of paint.  He then commenced an attack on the Officers by kicking and punching them.  None of the Officers sustained any injury during this attack.  Whilst being restrained against the wall on the bed, Capuano managed to get his hand up underneath the visor on Senior Officer Langford's safety helmet and stated "I'll gouge your eye out".  Capuano then clawed at the Officer's right eye.  Capuano carried out a similar move putting his hand up inside the visor of one of the other Officer's visors but only managed to scratch his face rather than coming into contact with the eye.  Senior Officer Langford required medical treatment but no serious or lasting injuries were sustained by him.

Count 8: Malicious Damage.  In consequence of throwing the paint on the Officers their equipment was no longer suitable for operational use and the cost of replacing the damaged items was £900.01.

The Crown when approaching sentence had regard to the comments of the Court of Appeal in the case of A.G. -v- Harrison and applied starting point approaches to Count 1 (Robbery) and to Count 6 (Grave and Criminal Assault).  In each of those cases, the Crown used starting points of 3 years' imprisonment.  The Crown, however, suggested that the offences of assault and malicious damage were offences which were not amenable to the application of a starting point approach.  The circumstances of such offences were infinitely variable and often such offences when taken in isolation would have fallen within the jurisdiction of the Magistrate's Court.

 

Details of Mitigation:

There was extensive Psychiatric Reports before the Court in addition to the Social Enquiry Report.  It was inarguable that Capuano was suffering from psychiatric illnesses in the form of (a) bipolar affected disorder with most symptoms being hypomanic in nature; (b) severe dissocial personality disorder; (c) harmful use of illicit substances.  The report of one of the psychiatrists suggested that in relation to some of the offences, Capuano may have been suffering symptoms of mental illness at the time the offences were committed i.e. Counts 1, 2 and 3.  He had the benefit of guilty pleas entered at an early opportunity and was generally co-operative during the course of the interviews that were conduced with him.  He did not have the benefit of good character or youth on his side but the Crown had taken account of the matters raised in the reports.  The Crown also had regard to the expressions of remorse and apologies made by Capuano during interview and also in a letter written by him and placed before the Sentencing Court.  The Court had regard to the totality principle when considering its Conclusions.

In mitigation the Defence emphasised 2 points namely, mental health and remorse.  It was emphasised that some of the offences had been committed possibly whilst suffering from mental illness and the problem faced by Capuano was that he had some insight into his illness.  When he felt that he was getting ill he became very frightened and panicked.  He knew what he was capable of when he became manic.  However, this often worked against him because if he was not taken seriously then he became more manic.  According to one of the psychiatrists, some of the mental health problems would decrease or diminish with age.  So far as concerns remorse it was requested that this be treated as genuine and insofar as concerns the offences on the Prison Officers, Capuano had expressed appreciation for the way in which he had always been treated whilst in Prison and how professionally they had acted and he was therefore very sorry for his conduct towards the Officers on the occasion giving rise to the offences.  The Defence concluded by contending that the Crown's Conclusions were very fair and concurred with the Crown's views on the application of starting points on the particular offences.

 

Previous Convictions:

Extensive criminal record including numerous for assaults/grave and criminal assaults, dishonesty, pubic order offences and drug offences.  The criminal record revealed a pattern of multiple offending by Capuano.

 

Conclusions:

 

Count 1:	18 months' imprisonment.
Count 2:	3 months' imprisonment; concurrent.
Count 3:	6 months' imprisonment, concurrent with count 2 sentence; otherwise consecutive.
Count 4:	1 month's imprisonment, concurrent.
Count 5:	2 months' imprisonment, concurrent.
Count 6:	18 months' imprisonment; consecutive to count 1.
Count 7:	6 months' imprisonment; concurrent.
Count 8:	6 months' imprisonment; concurrent.

 

TOTAL: 3½ years' imprisonment.

 

Sentence and Observations of Court:

 

The Court took the opportunity to consider the judgment of the Court of Appeal in the case of A.G. - Harrison on the vexed question of starting points.  It is clear from the examination of A.G. -v- Harrison that the Royal Court was free not to use starting points in non-drugs cases if it was so minded.  The Royal Court had the day to day function of sentencing whereas the Court of Appeal had a different role when reviewing sentences on appeal.  The Royal Court was therefore of the view that whilst starting points were of assistance in drug cases they were difficult to apply in non-drug cases.  The Royal Court preferred the views of Sir Richard Tucker as expressed in the case of A.G. -v- Figueira.  Whilst the Royal Court would attempt to fix a starting point in appropriate cases when it could reasonably be achieved, in a great many other cases the exercise was too difficult and artificial such as in A.G. -v- Figueira.  All of the members of the Court were against the use of starting points in cases in the lower ranges particularly those which would fall normally within the jurisdiction of the Inferior Number of the Royal Court.  It would be a matter for the Attorney General to decide whether the starting point approach was applicable to an individual case.  The Court then proceeded to apply its views on starting points to the facts of Capuano's case and noted that in A.G. -v- Harrison there was no guidance in relation to cases involving multiple offending or where the totality principle was relevant.  The Court endorsed the sensible approach taken by the Crown in relation to the Counts and Robbery and Grave and Criminal Assault which were amendable to the starting point approach.  The Crown's viewed with particular seriousness Count 1 (Robbery), Count 3 (Assault), Count 6 (Grave and Criminal Assault) and Count 7 (Assault).  In particular the Court noted that the assaults committed on the Prison Officers and the Court made it clear that Prison Officers were entitled to carry out their duties without fear of violence and Officers were entitled to receive the protection of the Court.  The assaults were deliberate attempts to gouge out the eyes of the Offices and the Courts agreed the correct starting point was one of 5 years.  The Court agreed with the starting point of 3 years for the offence of robbery.  Capuano had a long record of violence and received a number of prison sentences and had also received a variety of non-custodial options.  It was acknowledged that the suffered from the 3 types of psychiatric illness as noted by the Crown.  He was, however, fit to plead and was not insane at the time of the offences.  The Psychiatric Report had made it quite clear that the Health Service in Jersey had exhausted their services and were unable to offer further medical assistance.  Capuano remained a threat to himself and to others.  The public needed to be protected from him.  The Court was therefore going to increase the sentence so that he could receive help in the mental secure hospital as recommended by Dr. Myatt.  The Court had had regard and provided credit for his plea of guilty, the remorse as expressed in the letter and the fact that in relation to the earlier offences but not the later offences, he was suffering from mental illness.

The Court issued a strong recommendation to the Prison Authorities that Capuano be transferred to a secure mental hospital in the U.K. so that he could get the treatment which, in the view of the Court, he needed and which Capuano was actually asking for.

 

Count 1:	18 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent with count 2; consecutive to count 1.
Count 4:	1 month's imprisonment, concurrent.
Count 5:	2 months' imprisonment, concurrent.
Count 6:	3 years' imprisonment, consecutive to count 1.
Count 7:	1 year's imprisonment, concurrent.
Count 8:	6 months' imprisonment, concurrent.

 

TOTAL: 5 years' imprisonment.

 

 

J.C. Gollop, Esq., Crown Advocate.

Advocate C.M. Fogarty for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE BAILIFF:

1.        The Court wishes to begin by taking the opportunity of referring to the judgment of the five man Court of Appeal in Harrison -v- AG [2004]JCA046 in so far as it relates to the vexed question of starting points.

2.        Having considered the questions in great detail the Court of Appeal concluded that there were considerable advantages in fixing upon a starting point when sentencing.  However, the Court emphasised that it was not for the Court of Appeal to impose a sentencing strait jacket which forced the Royal Court to determine sentences according to a fixed and immutable set of rules, but rather to ensure that whatever route was chosen by the Royal Court the reasoning should be clear.

3.        Provided the Court gave adequate reasons, although using a method of sentencing which did not apply a starting point, the Court of Appeal would be able to perform its function satisfactorily.  The Court of Appeal summarised the position at paragraph 138 of its judgment as follows:

"We emphasise, therefore, that we regard it as desirable for the Royal Court to identify starting points; but what we have said does not constitute a direction that the Royal Court must perform this function.  We do not conclude that the absence of the application of a starting point of itself prevents this Court from carrying out its functions as defined in the Court of Appeal (Jersey) Law 1961 provided that the Royal Court's reasoning is clear; nor do we conclude that the absence of a starting point constitutes a breach of Article 6 of the European Convention on Human Rights."

4.        It is clear, therefore, that this Court is free to continue not to use a starting point in non-drug cases but it must nonetheless take full account of the views of the Court of Appeal that that Court regards the process as desirable. 

5.        This Court has given anxious consideration to these views and is appreciative of the clarification of the proposed process contained in the judgment of the Court of Appeal.  However, it is this Court which has to exercise the function of day to day sentencing at first instance.  That is a very different rôle from the task of reviewing a sentence upon appeal.

6.        Regrettably, despite the analysis contained in the Court of Appeal's judgment in Harrison, this Court remains of the view that the starting point mechanism, while of considerable assistance in drug cases where the variables are comparatively few, can be very difficult to apply in non-drug cases.  The members of this Court prefer the views expressed by Sir Richard Tucker, Commissioner when considering the judgment in Harrison in the case of A.G. -v- Figueira [2004]JRC058.

7.        Despite these misgivings, however, the Superior Number must respect the judicial hierarchy in this jurisdiction, and, in deference to the views of the Court of Appeal in Harrison, should attempt to fix upon a starting point in non-drug cases which come before it at first instance where it thinks that that can reasonably be achieved.  However, there will be many cases, e.g. Figueira, where to fix upon a starting point would be too difficult and artificial, and/or unseemly and inappropriate, and in such cases the Superior Number feels that it must continue to use the process with which it feels comfortable rather than trying to adopt a system in which it lacks confidence.

8.        In the case of sentences imposed by the Inferior Number, appeals lie to the Superior Number where there has been a plea of guilty.  That is the position in the vast majority of cases.  All the members of this Court are of the view that the arguments against starting points are even stronger in the case of sentences which lie in the lower range.  In such cases, similar cases come before the Inferior Number on a regular basis, almost invariably on a guilty plea.  In those circumstances the Inferior Number has a strong feel for the bracket of sentences for a particular offence.  Exactly where the sentence for a particular case will fall will depend upon the strength of the aggravating and mitigating factors respectively.  Accordingly, the Court does not customarily undertake the mental process of fixing upon a starting point and would have great difficulty in doing so.  Furthermore, we consider that the adoption of starting points in such cases would lead to great difficulties of comparison in other cases and would lead to artificial and minor distinctions.

9.        Where appeals lie to the Superior Number it will be the case, therefore, that both the Court at first instance and the Appeal Court will be of the view that the starting point process is unhelpful.  It will be for the Attorney General to decide whether or not the adoption of a starting point is appropriate in arriving at the Crown's conclusions.  For our part we do not propose to employ the starting point mechanism in cases before the Inferior Number.

10.      We appreciate that in a few cases where there is also an appeal against conviction an appeal against sentence from the Inferior Number will lie to the Court of Appeal rather than to the Superior Number.  We note that the Court of Appeal stated in Harrison that provided the Inferior Number makes its reasoning clear the Court of Appeal will be well able to fulfil its appellate function, notwithstanding the absence of a starting point.

11.      We turn now to apply these principles to the case before us this afternoon.  We note that Harrison does not afford any guidance as to the proper approach where an indictment contains multiple offences of varying gravity and type and where the totality principle is an important factor to be taken into account.  We think that the approach adopted by the Crown Advocate is the sensible approach in this case.  We will not adopt a higher starting point for the most serious offence as would be appropriate in drug cases where different classes of drug are involved, but will adopt a separate starting point for each of the offences of robbery and grave and criminal assault on the basis that consecutive sentences are appropriate.

12.      Capuano is to be sentenced for a range of offences of which the most serious are, in our judgment, Count 1 (robbery), Count 3 (assault) and Counts 6 and 7 (grave and criminal assault and assault respectively upon prison officers acting in the course of their duties).

13.      The robbery involved the snatching of a mobile phone, the head-butting of its owner, a young woman, and a subsequent kneeing of her thigh causing bruising.  The victim impact statement makes it clear that the young woman has subsequently suffered severe migraines, nightmares and stress associated with her memory of the attack.  We think that the appropriate starting point is one of 3 years' imprisonment.

14.      Count 3 involves an unprovoked assault upon another woman who was the manager of a shop in which the defendant caused considerable malicious damage.  Capuano threatened her that if she called the police he would come back and "finish the shop".  Again the victim has suffered from an after shock and now feels tense and very nervous if she is left in the shop on her own.

15.      Counts 6 and 7 involve grave and criminal assault and assault on two prison officers acting in the execution of their duty.  That aspect is an aggravating feature of both assaults.  Prison officers are entitled to carry out their duties without being subjected to vicious attacks by inmates and the Court wishes to make it clear that prison officers will receive such protection from the Court as it can afford. 

16.      In this case there was a kicking and punching and a deliberate attempt by the defendant to gouge out the eyes of the prison officers.  Fortunately, only one officer was seriously hurt and he has now recovered fully from his injury.  We think that the appropriate starting point on Count 6 is one of 5 years' imprisonment. 

17.      Viewing the offending in the round, the defendant has a long record of convictions involving many offences of violence against persons and property.  He has received numerous prison sentences but has also been placed on probation, bound over to be of good behaviour, and has been the subject of other non-custodial penalties. 

18.      He does suffer from mental illness.  We have studied carefully a number of very full reports placed before us.  Capuano is said to suffer from three psychiatric disorders:  first, bipolar affective disorder; secondly, severe dissocial personality order; thirdly, harmful use of illicit substances.

19.      It is clear, however, that Capuano is fit to plead and was not insane in a legal sense at the time when any of the offences was committed.  The Court has been advised in the report of Dr Cox, Consultant Psychiatrist in Jersey, that the Jersey Adult Mental Health Service has exhausted all available options and that Capuano remains a threat both to himself and to others.

20.      We have reached the firm conclusion that the public must be protected from the actions of this defendant and that a total sentence should be imposed which will enable Capuano to be transferred to England and to receive treatment in a medium secure hospital as recommended by Dr Paul O'Connell, Consultant Forensic Psychiatrist in the Kent Forensic Psychiatry Service.

21.      Capuano is entitled to credit for his guilty pleas.  He has also expressed remorse in a letter to the Court.  We also take into account that in relation to the earlier offences but not the offences involving the prison officers he may have been suffering from mental illness at that time.  We take all those factors into account and grant the conclusions save in respect of counts 6 and 7, where the conclusions are increased.

22.      Capuano, the sentence of the Court is that on Count 1, you will be sentenced to 18 months' imprisonment; on Count 2, to 3 months' imprisonment, concurrent; on Count 3, to 6 months' imprisonment concurrent with Count 2, but consecutive to Count 1; on Count 4, (malicious damage) to 1 month's imprisonment, concurrent; on Count 5, (malicious damage) to 2 months' imprisonment concurrent; on count 6, (grave and criminal assault) to 3 years' imprisonment, consecutive to Count 1; on Count 7, (assault on a prison officer) to 12 months' imprisonment, concurrent; and Count 8, (malicious damage) to 6 months' imprisonment , concurrent.  The total sentence is 5 years' imprisonment.

23.      We strongly recommend to the Prison authorities that Capuano be transferred to England within the prison system and that arrangements are made for him to be placed in a secure mental hospital where he can receive the treatment which in the view of this Court he needs.  We hope, Capuano, that you will interpret this sentence as an attempt by the Court to give you the help for which you have asked.

Authorities

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (3^rd Ed'n): pp. 189-90; 247-55; 324-30.

Current Sentencing Practice: pp. 23326/11-23347.

Harrison -v- A.G. [2004]JCA046.

A.G. -v- Figueira [2004]JRC058