Jersey Unreported Judgments

[2005]JRC087

ROYAL COURT

(Samedi Division)

 

1^st July 2005

 

 

The Attorney General

-v-

Shane Luke O'Shea

 

Sentencing by the Inferior Number of the Royal Court, on guilty pleas to:

 

2 counts of:	Larceny (Counts 1 and 2).
1 count of:	Grave and criminal assault (Count 3).

 

 

Age:     21.

 

Plea:    Guilty.

 

Details of Offence:

On 24^th February, 2005, the defendant stole a jacket worth £22 from Axle clothing.  The jacket was recovered when the defendant was spotted wearing it by police officers, but was not in a saleable condition.  (Count 1).  Two days later the defendant asked to borrow a mobile telephone worth £240 from a fourteen year old boy.  He did not return the mobile telephone despite repeated requests and disappeared into Le Geyt flats with it.  The mobile telephone was not recovered (Count 2).  The defendant was charged with these two larcenies and released on bail.  He breached a condition of bail and was remanded in custody.  Whilst on remand in the Young Offenders' Wing of La Moye the defendant punched a prison officer in the face.  The officer suffered a broken cheek bone which left a permanent dent in his face which can only be corrected by surgery to break and re-set the bone.  The defendant stated in interview that the officer had made derogatory comments about his family, but if comments were made they happened at least two days beforehand, giving the defendant ample time to calm down.  (Count 3).

Breach:  Residents of St Mark's Gate reported that the defendant was on a window sill on the landing in a distressed state.  When police officers arrived he had to be freed as he had become stuck.  He became aggressive, threatening to hit one of the officers.  His younger sister, who was in a nearby flat, was distressed by the incident.

Breach: breach of the peace; common assault; resisting arrest.

 

Details of Mitigation:

Youth - the offences were committed before the defendant's 21^st birthday.  Extremely positive and supportive psychological, psychiatric and Social Enquiry Reports.  Appears to be overcoming his drug addiction which arose from exposure to drugs at a very early age.  No weapon involved in the grave and criminal assault and no intention seriously to injure the victim.  Early guilty plea.  Now accepted all responsibility.  As a result of the assault in the prison, had spent some six weeks in solitary confinement for large parts of the day.  Was now a model prisoner.

 

Previous Convictions:

Eleven convictions for 21 offences, including 6 larceny and related offences and three offences against the person.

 

Conclusions:

These are the general conclusions.

 

Count 1:	2 weeks' imprisonment.
Count 2:	3 months' imprisonment.
Count 3:	12 months' imprisonment; (from a starting point of 3 years).

 

And in respect of the breach as alleged in the Representation 1 week's imprisonment.

In respect of Royal Court breach, 6 months' imprisonment; 7 months' imprisonment, concurrent; 3 months' imprisonment, concurrent.

Whereas normally there would be consecutive sentences, the Crown moved for concurrent sentences on two grounds.  (1)  On the application of the totality principle having regard to the fact that the defendant was aged just 21.  (2)  With regard to the fact the defendant served nearly 4 months' imprisonment on remand pending trial on the indictment which led to the Probation Order in September 2004, and that this time would not be taken into account when the overall sentence was computed having regard to the Computation of Sentences Rules.

 

 

Sentence and Observations of Court:

Conclusions granted.  The defendant committed an unwarranted assault on a prison officer.  Although there was only one punch it was hard enough to fracture the cheekbone.  Even if there had been some oral provocation previously, there was no excuse.  Prison officers were entitled to the Court's protection.  There were two larceny offences.  There was in relation to one of them some bullying and intimidation of a 14 year old boy.  The Court noted that the defendant had been placed on probation in September 2004 for intimidating youngsters.  Accordingly total sentence is one of 1 year and 3 months' imprisonment.

 

 

 

H.M. Attorney General for the Crown.

Advocate D Hopwood for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        This defendant committed an unwarranted assault on a prison officer.  It may only have been one punch, but it was hard enough to fracture the officer's cheek.  Even if a remark had been made, as we heard, that was no excuse.

2.        It is quite unacceptable for prisoners to assault prison officers, and prison officers are entitled to the Court's protection when they are assaulted.

3.        The defendant has also pleaded guilty to two offences of larceny.  One is a shop lifting offence, but the other did in our judgment involve an element of bullying and intimidation of a fourteen year old boy.  As the background report makes clear this is not the first occasion on which the defendant has targeted youngsters; indeed he was placed on probation by this Court in September last year for a number of offences which included intimidating youngsters. 

4.        Mr Hopwood has argued that the three months moved for by the Crown in respect of the larceny on Count 2 is too much.  We do not agree because of the element of intimidation; we think that it is a perfectly proper sentence.  In relation to the offences for which he was placed on probation, we have been given two versions and we proceed on the basis of the version of facts put forward by the defence.  

5.        In mitigation Mr Hopwood has mentioned the guilty plea which was entered at an early stage and has emphasised the efforts the defendant has made to overcome his drug habit and his conduct generally whilst in prison.  We take full account of all that Mr Hopwood has very persuasively put forward on the defendant's behalf, and we hope that he continues in prison with the efforts that he has been making. 

6.        He is just 21 and therefore the Young Offenders law does not technically apply because he was convicted today, but we have carefully considered whether prison is inevitable and we are quite satisfied that it is because of the nature of the offences and because the defendant has failed to respond to non-custodial sentences. 

7.        In our judgment the conclusions of the Crown in relation to the offences on this indictment are correct.  What we have had to give careful attention to is whether the offences, for which he was placed on probation in September 2004, should be dealt with by way of a consecutive prison sentence?  Normally they would be.  Where a person is given the opportunity of a probation order and fails to take advantage of it and commits further offences, then the sentences will normally be consecutive.  But on this occasion we take note of the fact that the defendant served the equivalent of 6 months' imprisonment whilst on remand for those earlier offences, and yet the Crown's total conclusions were only for 7 months.

8.        Secondly, we take account of the efforts the defendant has been making recently in prison and we think those would be encouraged by making the sentence concurrent.  Having regard to the totality principle, we think that the Crown's conclusions are correct in total.

9.        The sentence of the Court is as follows, taking the indictment first, Count 1: 2 weeks'; Count 2: 3 months'; Count 3: 12 months'; and in respect of the breach of the Magistrate's Court Probation Order 1 week's imprisonment, all of those to be concurrent except for Count 3, which is consecutive.  In relation to the offences which were before this Court in September, on Count 7, 6 months; on Count 8, 7 months and on Count 9, 3 months, all of those concurrent with each other and concurrent with the sentences, making a total of 15 months' imprisonment.

10.      Mr O'Shea this is your chance.  You have got to decide, as the Attorney General said and as your Advocate has said, whether you are going to carry on with a life of going in and out of prison, or whether you are going to try and change things.  You have the ability and talent to change things, we hope you will do so.

Authorities

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

A.G. -v- Baglin [2003]JRC085.