[2004]JRC200
youth appeal COURT
17th November, 2004.
Before: |
F.C. Hamon, Esq., O.B.E., Commissioner, and Mr David Germain, Mrs G. Baudains and Mrs Colette Crill. |
V
-v-
Attorney General
Appeal against 6 months' Youth Detention sentence passed by the Magistrate on 26th October, 2004, in the Youth Court following Guilt plea to:
3 counts of: |
Common Assault. |
1 count of: |
Resisting Arrest. |
1 count of: |
Possession of a controlled drug (cannabis) contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978. |
Appeal dismissed.
Advocate D. Hopwood for the Appellant.
Advocate J. Hawgood on behalf of the Attorney General.
JUDGMENT
THE COMMISSIONER:
1. This is an appeal against sentence by V. The appellant first appeared before the Magistrates' Court sitting as a Youth Court on the 6th October, 2004, where she entered guilty pleas to 3 charges of assault on a police officer, and one charge of resisting arrest. She was charged with another juvenile, D, who entered guilty pleas to one charge of assaulting a police officer and one charge of resisting arrest. All these incidents occurred at the same time and, of course, we shall detail them later.
2. A Social Enquiry Report was ordered and both accused were remanded on conditional bail to appear in the Youth Court. A condition of bail was that V and her co-accused reside in St Mark's Adolescent Hostel and each was to comply with a curfew.
3. They were brought back to Court on the 7th October, as an arrest order had been granted on the 5th October, for breach of the terms of their conditional bail: they had not attended the hostel at all. They were remanded in custody and, on 26th October, further charges were brought. As far as V is concerned this related to the possession of a personal amount of cannabis. Again guilty pleas were entered.
4. On 26th October, V was sentenced to 6 months' youth detention, concurrent, on each count. Her co-accused was sentenced to 9 months' probation with a 50 hours' Community Service Order with an equivalent of 2 months' youth detention. It is a pity that the charges were not itemised and were made in a global fashion, but it does not affect our decision.
5. The learned Magistrate applied Article 4 (2) of the Criminal Justice (Young Offenders) (Jersey) Law 1994. The appellant is 17 years old. What the magistrate said is this:
"Now in the case of V, we're faced here with a situation where life has been going better for V. She'd found herself part-time work and that was excellent but V, on this occasion 4th October, you got involved in assaulting very seriously a police officer. It was quite unnecessary for you to get involved in this and it was quite a persistent attack: punches, taking hold of her by the hair and banging her head, and after that you also assaulted other people. Now, we've come to the conclusion that this is a matter of such seriousness that we cannot avoid a further Youth Custody sentence for you which is what we're going to impose. The reasons under Article 4(2) are that you have a history of failure to respond to non-custodial penalties and you're unwilling or unable to respond to them, and also the offence, or the totality of the offending is so serious that a non-custodial sentence cannot be justified".
6. Those were the facts which were before the learned Magistrate, of course, we have heard slight variations on them during the course of this afternoon's hearing. The Magistrate, we re-iterate, had the benefit of a very detailed Probation Report.
7. It was apparently about 12.45 on Monday 4th October when, in the course of a drug warrant search, the appellant, seeing that a friend of hers was being held by the police outside, punched WPC De La Mare to the ground and holding her hair banged her head against a wall some four times. V and her co-accused were described as using extreme violence. The Appellant apparently kicked another police officer and when brought to the police station she spat in a police officer's face. She has 6 previous convictions, the first when she was only 13. The Court has dealt with previous offences with binding over orders, probation orders, with conditions of receiving drug treatment attached and just previous to these offences with a term of youth custody of 13 weeks.
8. It should be pointed out that V actually asked for that sentence to be imposed in order to make a clean break. That was only in February. She was assessed as being at high risk of re-offending. The report mentions that there are several matters of concern, namely her criminal record, her current unpredictable employment, her family circumstances and her lack of any constructive use of leisure time, her known criminal friends, her use of cannabis - which is freely admitted - and her lack of anger control.
9. It is not, in our view, for this Court to alter a sentence merely because we might have passed a different sentence. The learned Magistrate had all the facts before him. He obviously read the background reports that were available to him and he considered the matter carefully. We will only alter a sentence if the right principles were not applied, or if the sentence were excessive.
10. V was charged with possession of cannabis and that was her third offence. One of the grounds of appeal is that of disparity, as she received a different sentence to D. That young person received a sentence of probation and community service.
11. It is clear to us that the appellant and D received individual sentences. The learned Magistrate made that abundantly clear. He said, at one point,that in his view D's involvement was much less than that of V. It was, after all, the appellant who took hold of WPC De La Mare's hair having punched her to the ground and banged her head several times against the wall.
12. Centenier Allen summarised the facts like this:
"V and D were in the premises when the police entered and were shown a copy of the warrant; a search revealed suspected roach ends in the ashtray of the lounge area. At approximately 12.45 the accused P arrived outside the address and was detained by police officers for a search. As they started to search him he took a lump of cannabis from his pocket and put it in his mouth. The officers restrained him and, following a brief struggle, he spat the cannabis out onto the floor. At this time while the officers were struggling with P, V and D ran out of the premises and attacked WPC De La Mare and Jones."
V immediately punched De La Mare in the face using clenched right and left fists. V punched De La Mare approximately 4 times. This time De La Mare fell to the floor onto her knees. V then grabbed hold of De La Mare's head and forcibly banged it against the wall of the building while she was kneeling down on approximately 4 occasions. D also came out of the building as she did so was observed to kick out at PC Jones and also De La Mare. She kicked Jones and De La Mare in the legs. While V was being restrained on the floor she also kicked De La Mare on the arm twice with a stamping motion while PC De La Mare was on the floor. PC De La Mare was then examined by police. She had numerous injuries noted, including bruises to the head, legs and she had a large chunk of her hair pulled out. She had been signed off sick for one week.
Officers restrained V and D. They were displaying extreme violence and had to be placed face down and handcuffed at the rear and the violent and abusive behaviour continued during transfer to the van, by which time V had assaulted PC Clayson by kicking him and on being removed from the van V then spat at PC Coote in the face."
13. There were, fortunately, no long term injuries to WCP De La Mare. This was perhaps fortuitous, but she was off work for a week as a result of the assault. The record of the appellant, in the words of Mr Hawgood, is "far worse than that of D", she also has a record of not complying with non-custodial sentencing.
14. We do not think, on reflection, that disparity is an issue here. We must say we do not think matters were helped by the form of global sentencing that the learned Magistrate adopted. We have been greatly helped by Mr Hopwood but it is the appellant, in our view, who really needs help. We would ask those at the prison to do everything in their power to assist this disturbed young person.
15. We have taken much time over this and we can see no grounds to disturb the sentence imposed and the appeal is accordingly dismissed.
Authorities
Criminal Justice (Young Offenders) (Jersey) Law 1994.
Little -v- A.G. (3rd August, 1998) Jersey Unreported; [1998/166].
Thomas: Principles of Sentencing: pp. 8-9.