[2004]JRC185
ROYAL COURT
(Samedi Division)
25th October 2004
Before: |
M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Bullen and Clapham. |
Scott Leonard Charles Furlong
-v-
Attorney General
Magistrates' Court Appeal
Appeal against a total sentence of 2 months youth detention, passed by the Relief Magistrate on 20th September, 2004, following Guilty pleas to:
1 count of: |
Being drunk and disorderly (count 1, on which count a sentence of 1 month's youth detention was passed). |
1 count of: |
Breaching a 3 month binding over order, made in the Magistrates' Court on 19th July, 2004, on a guilty plea to being drunk and incapable (Count 2, on which count a sentence of 1 month's youth detention, consecutive was passed). |
Appeal allowed; sentence quashed; absolute discharge substituted.
Advocate J Bell, for the Appellant.
Mrs S Sharpe, Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF:
1. I am going to give a short judgment now so that others can learn from this. But so that you may know: we are going to allow this appeal, quash the prison sentence and we are going to give you what is called an absolute discharge. You should not have done what you did; it was a stupid thing to do, and I hope you have learned from it, nonetheless you should not have received the sentence you did in the Magistrates' Court.
2. This is an appeal against an aggregate sentence of 2 month's youth detention imposed by the Relief Magistrate on 20th September, 2004. The sentence was made up of one month's youth detention for an offence of being drunk and disorderly, and one month consecutive for breach of a binding over order imposed on 19th July, for an offence of being drunk and incapable.
3. The facts of the two offences are very simple. According to the information provided to the Relief Magistrate by the Centenier the offence of 19th July, arose as a result of the Appellant being seen lying on the ground in Liberation Square at 1.55 a.m. The police officer could see that he was very drunk. He stumbled to his feet and was incapable and he was arrested.
4. The other offence took place on the 18th September, outside "Les Folies d'Amour" at 2.00 a.m. Officers were approached by the Appellant, holding a flower in his hand and he asked the officers what flower it was. He was told to go home; he was clearly drunk. He then started shouting and swearing and pointing his finger at one of the officers. He was arrested.
5. The Appellant has an extremely poor record, and has appeared before the Youth Court on numerous occasions. Most recently he came before the Royal Court on 12th March, 2004, for four offences of breaking and entering and was placed on probation for 6 months. Accordingly, the probation order had only expired a matter of a few days before the offence of the 18th September.
6. In our judgment, ordinary sentencing principles would have suggested that, before imposing a prison sentence on a young man of 19 for two very minor offences who had just been on probation, the Court ought to hear from the Probation Service as to how the offender had done whilst on probation.
7. Apart from that, there is statutory backing for this common sense approach. Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law, 1994 provides as follows;
"(2) A court shall not pass a sentence of youth detention unless it considers that no other method of dealing with him is appropriate because it appears to the court that -
(a) he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or
(b) only a custodial sentence would be adequate to protect the public from serious harm from him; or
(c) the offence or the totality of the offending is so serious that a non-custodial sentence cannot be justified;
and the court shall state in open court its reason for imposing a sentence of youth detention and shall explain to the person that on his release he may be subject to a period of supervision in accordance with Article 10.
Furthermore Article 7 of the same Law provides as follows:
(1) For the purpose of determining whether there is an appropriate method of dealing with an offender other than by passing a sentence of youth detention the court shall obtain and consider information about the circumstances and shall take into account information before the court which is relevant to his character and physical and mental condition, and in particular the court shall, unless it considers it unnecessary to do so in a particular case, obtain a report on him from a probation officer.
(2) If the Youth Court or the Police court imposes a sentence of youth detention without having obtained a report from a probation officer it shall state in open court the reasons why it considered the report unnecessary.
8. In this case the Appellant was unrepresented in the Magistrates' Court. After the Centenier had outlined the facts, the only exchange which took place was as follows:
"Judge Tricot: Stand up will you. Is there anything you want to say?
Defendant: Uhm ... to was a bit of a stupid offence really and er that's about it really.
Judge Tricot: You're drinking yourself into an early grave.
Defendant: Yeah I know, yeah.
Judge Tricot: Right well, I'll give you an opportunity to do something about it. I'm going to revoke the Binding Over Order and replace that with one month Youth Custody.
Judge Tricot: And on the second offence, the recent one, the same thing, one month Youth Custody.
Greffier: Is that a concurrent order Sir?
Judge Tricot: Consecutive.
Greffier: Consecutive.
Judge Tricot: Try and sort yourself out whilst you're inside."
9. As can be seen the Relief Magistrate made no enquiries of the appellant as to his background, as to what was happening in his life, as to his employment prospects, or indeed what had happened to cause him to offend that night; nor did he warn the Appellant that he was thinking of prison and give him an opportunity to argue why he should not be sent to Youth Detention; nor did he ask for anything from the Probation Service.
10. It follows that he did not comply with Article 7 of the Law in that he did not obtain a probation report or explain in open court why he considered it unnecessary to do so; nor did he comply with Article 4 in that he did not say which of the grounds set out in Article 4 (2) had led him to the conclusion that no other method of dealing with the Appellant was appropriate other than youth detention.
11. Articles 4 and Article 7 are important provisions designed to ensure that young people are not sent to youth detention unless the Court is satisfied that there is no appropriate alternative, and has reached that decision with sufficient information about the offender obtained by the provision of a background report from the Probation Service.
12. The Relief Magistrate's failure to comply with both of these provisions, on the facts of this case, is sufficient in itself to lead us to allow the appeal and to quash the sentence which was imposed.
13. The Court, in fact, has now been provided with some background material from the Probation Service and also of course has had the advantage of submissions on behalf of the Appellant. It transpires that prior to the incident the Appellant had enrolled at Highlands College on a building skills course. Furthermore, he had obtained a grant to assist with that. Given his previous record of offending and his failure to find employment previously, this was clearly an important step in the right direction. For a court to pass sentence without knowing of such a development shows how important it is that the statutory provisions are complied with.
14. There is one other problem which has arisen in this case: the Appellant was due to be released from his sentence on 29th October. Today is the 25th October which means that the appeal has not come before us until his sentence is virtually complete.
15. We have made enquiries as to how this occurred. It seems that efforts were made in the Greffe to obtain an earlier date, but perhaps these could have been pushed forward more strongly. Furthermore, it would seem that counsel for the appellant was appointed on legal aid on 30th September. He would have seen from the notice of appeal that the appeal related to a two months sentence and, therefore, time was of the essence. Counsel was then notified by the Court on 12th October that 25th October was the date fixed for the appeal. He accepted that date and assumed that there was nothing else that could be done.
16. We do not mean to be critical of counsel as these things are not always easy to appreciate, but we wish to send out a clear message to the profession that where an appeal is brought in respect of a short prison sentence, it is counsel's duty to be extremely proactive in trying to ensure that a date is fixed which will be soon enough to mean that the appeal will not be nugatory if successful. The judges will stand ready to do all they can to ensure that early dates are fixed, provided the matters are brought to their attention.
17. As we say it is indeed unfortunate that this Appellant has in fact served virtually all of the sentence which we have held was wrongly imposed.
18. In all the circumstances we allow the appeal, and, because the Appellant has in fact served virtually the whole sentence, it would be wrong in our judgment to impose any other sentence such as a binding over order; nor do we think it right simply to reduce the prison sentence to one that would allow his immediate release, because that would still leave a prison sentence on his record and it would be a sentence which in our judgment should not have been imposed in the first place.
19. The only alternative therefore is to grant him an absolute discharge and that is what we do.
Authorities
Criminal Justice (Young Offenders) (Jersey) Law 1994: Articles 4, 7.