Jersey Unreported Judgments

[2006]JRC050

ROYAL COURT

(Samedi Division)

30^th March 2006

The Attorney General

-v-

Sean Lawrence Cassin

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

Age:  19.

Plea: Guilty.

Details of Offence:

In the Company of his step-brother the accused went to a town nightclub.  The step-brother became involved in an argument with a man with whom he had a grievance.  The accused witnessed the man head-butt and punch his step-brother (subject of a separate prosecution) and alleged he too had been punched twice by the man.  The step-brother and the man were ejected.  Shortly thereafter the accused ran out after the man.  In a fit of temper he delivered a forceful punch from behind to the right side of the man's face causing the victim to fall to the ground.  The accused lost his balance and stumbled to the ground (sustaining minor injuries).  The man lay motionless.  The accused (who was wearing sturdy ankle boots) got to his feet and delivered a hard kick to the man's head.  He ran from the scene leaving his victim lying in a pool of blood.  Victim suffered a vertically aligned fracture of the lower jaw requiring surgery, broken nose, black eyes and cuts to his face (Count 1).  Both the accused and his victim were intoxicated.

Later that day the accused was interviewed at Summerland in relation to the events at the nightclub.  Having been returned to Police HQ he sprinted through open detention bay doors.  The doors had been left open as a result of a momentary lapse in police procedures.  The accused was apprehended following a chase through town streets.

Details of Mitigation:

Guilty pleas.  Youth.  Remorse for the attack.  Provocation.  Attending meetings of AA to tackle his alcohol problem.

Previous Convictions:

Record containing convictions before the Youth Court and Magistrate's Court including offences of violence (resisting police arrest and grave and criminal assault).  To date he has been dealt with by way of non-custodial measures.

Conclusions:

Total 2 years and 3 months' youth detention.

Sentence and Observations of Court:

Total: 2 years' youth detention - suspended for 2 years - coupled with compensation order of £1,000 in favour of victim to be paid at £50 per week (or 3 months' youth detention in default).

Seriousness of offence such that non-custodial sanction could not be justified.  Some provocation.  Offence fuelled by alcohol.  Accused was benefiting from attendance at AA meetings and Court was impressed by letters from his mentors.  He was gainfully employed as an apprentice carpenter and was making good use of his leisure time.  Court would take an unusual step and impose a suspended sentence.

A. J. Belhomme, Esq., Crown Advocate.

Advocate S. E. Fitz for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Defence Counsel very generously extended an apology to the Court for failing to draw the Court's attention to the lack of jurisdiction to suspend a sentence of youth detention.  We think it is right to record that the Court did not give the opportunity to Counsel to make submissions on the matter prior to sentence being delivered and responsibility for this state of affairs rests entirely with the Court.

2.        Unfortunately the Court overlooked the provisions of Article 2 (5) of the Criminal Justice Suspension of Prison Sentences (Jersey) Law 2003 which expressly prohibits the Court from suspending a sentence of youth detention.  There is no doubt therefore that the Court acted without jurisdiction in imposing the sentence which was in fact imposed on this defendant.

3.        The Crown Advocate has suggested that we have an inherent jurisdiction to correct the error, as the Attorney General has, it appears, no statutory power to refer the sentence to the Court of Appeal.  We are satisfied, applying the principles laid down by the Court of Appeal in Jones -v- AG [2000] JLR 103, that we have an inherent jurisdiction to treat that part of the sentence which we erroneously imposed last Friday as a nullity and to substitute another sentence in its place.

4.        Counsel for the defendant has argued persuasively that any sentence which we now impose should not place the defendant in a worse position than he was when he left the Court having been sentenced. 

5.        In the circumstances of this case we accept that submission.  Cassin left the Court last week in the knowledge that if he behaved himself during the next two years he would suffer no further penalty.  The only sanction available to us which would achieve the same effect is a binding over order.  Ordinarily, this would be completely inappropriate for the serious offence to which the defendant pleaded guilty, but in the unusual and unfortunate situation which the Court has created for itself it is the only solution. 

6.        Cassin, the Court regrets that it has been necessary to bring you back before the Court but you have heard what I have said in relation to the sentence which we imposed last Friday; we had no power to impose a sentence of youth detention and then to suspend it.  We are going to cancel that sentence, and we are going to substitute in its place a binding over order for a period of 2 years.  I must repeat to you that the binding over order means that you are to be of good behaviour during the next two years and that if you are not of good behaviour and you are brought before the Court again then you will be liable to be sentenced again for the grave and criminal assault to which you have pleaded guilty.

7.        We impose the binding over order.  The Compensation Order will, of course, stand.  We are grateful to both Counsel for their assistance.

Authorities

Criminal Justice (Suspension of Prison Sentences) (Jersey) Law, 2003.

Jones -v- AG [2000] JLR103.