Jersey Unreported Judgments

[2010]JRC229

ROYAL COURT

(Samedi Division)

15^th December 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Morgan.

The Attorney General

-v-

W

P

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

W

1 count of:	Robbery (Count 1).
1 count of:	Having in a public place an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law 2000 (Count 2).

Age:  15.

Plea: Guilty.

Details of Offence:

At approximately 20:00 hours on Thursday 12^th August, 2010, the victim arrived at the Great Union Hotel public house in Great Union Road ("the Great Union") where he drinks regularly.  Over the course of the evening the victim spent his time talking to other regular drinkers of the establishment.  One of those individuals was P. 

Over the course of the evening, the victim became increasingly intoxicated to the point he was unsteady on his feet.  At one stage in the evening, CCTV showed him taking out a number of bank notes from his wallet and leaving them on the bar top.  P collected the bank notes together and is seen to put them back in the victim's wallet. 

At approximately 23:00 hours the victim was asked to leave the Great Union due to his state of intoxication.  A number of other customers also left at this time, including P who met her sons.  The victim then made his way home from the Great Union via Rouge Bouillon to Upper Midvale Road.  The victim was followed by P and her sons and CCTV captures him talking to them in Upper Midvale Road. 

As the victim took his keys out of his pocket to open the front door of his home, he felt someone push him on his back which caused him to fall to the ground.  Whilst he was lying on the ground he received blows everywhere on his body and in particular, a strong blow to the back of his neck and to his left hand.  For the purposes of sentencing, the Crown accepted that only punches were thrown. 

Whilst he was on the ground, P took his wallet (containing £400 cash and a bank card amongst other items) from his back pocket and threw it to W.  W then threw the wallet to a brother as they all ran away.  CCTV captures them leaving the area and the victim following behind.  W is then seen to confront the victim.  In his hand is a piece of wood, approximately 2 feet in length, which he holds towards the victim.  A short conversation takes place before W runs down the road. 

The victim reported the accident to the police immediately.  The following day he attended the Accident & Emergency Department at the Hospital where two of his fingers were strapped.  It is unknown whether they were fractured.  He was also unable to work for four weeks following the accident which caused financial hardship and difficulties undertaking every day tasks in the home.  He now tends to avoid Great Union Road and the Great Union itself and is more concerned for his safety.  Neither the wallet nor its contents have been recovered. 

On 13^th August, 2010, P, W and another were arrested.  During the interview the following day P recounted that she had spent the evening of the assault in the Great Union and spoken to the victim.  She recalled him leaving his money on the bar top and that she told him to put it away.  After leaving the pub she recollects the victim going home and she also returned home, denying any part in the robbery.  When confronted with the CCTV evidence she stated that she did not recollect being in Upper Midvale Road but accepted that she must have been.  She continued to deny her involvement in the robbery and denied giving her sons money thereafter. 

W initially denied being in Upper Midvale Road saying the he, his mother and his brother only walked the victim up to near Rouge Bouillon at which point the victim tried to attack P so W punched him.  On being confronted with the CCTV and the brother's version of events, he admitted picking up a piece of wood, confronting the victim with it and stated that he would have used it to hit the victim if he had needed to.  P gave him some money after the robbery had taken place which he states that he spent on food. 

Having appeared in the Magistrate's Court, P, W and the other son were indicted in the Royal Court.  However, prior to Indictment the other son was severed from the Indictment and remitted to the Youth Court where he entered a guilty plea to receiving the wallet.  He was sentenced separately. 

The aggravating features of the case were that:-

1.        the robbery was premeditated by P;

2.        violence was used by way of punches,

3.        a weapon was used in order to make good their escape,

4.        the victim suffered financial hardship and an injury to his fingers which required medical attention, and

5.        P involved two of her children and rewarded them financially for their involvement.

Details of Mitigation:

Guilty pleas; youth; low to moderate risk of re-offending; family has experienced considerable problems with the involvement of many agencies; school attendance had recently improved and remorse. 

Previous Convictions:

W has convictions for unrelated matters which were not taken into consideration by the Crown due to his age when they were committed. 

Conclusions:

Count 1:	180 hours' Community Service Order.
Count 2:	50 hours' Community Service Order, concurrent.

Total:  180 hours' Community Service Order.

Sentence and Observations of Court:

In respect of W, the Deputy Bailiff noted that he was fourteen at the time of the offence but fifteen at the time of conviction, being the date of Indictment.  With reference to Cameron and the later UK decision of Bowker the Court decided that W should be sentenced in accordance with his age at the time of the commission of the offences and not the date of conviction.  Custody or community service was therefore not available. 

Count 1:	12 month Probation Order.
Count 2:	12 month Probation Order, concurrent.

Total:  12 month Probation Order. 

P

1 count of:

Robbery (Count 1).

Age:  44.

Plea: Guilty.

Details of Offence:

See W above.

Details of Mitigation:

Guilty plea; low risk of re-offending; considerable amount of traumatic personal difficulties and bereavement in her past; remorse; taken as a whole, her mitigation was exceptional. 

Previous Convictions:

None.

Conclusions:

Count 1:

240 hours' Community Service Order, equivalent to 18 months' imprisonment.

Total:  240 hours' Community Service Order.

Sentence and Observations of Court:

The Deputy Bailiff noted that the robbery was a serious offence and that whilst the victim was drunk, he would still have been frightened by three people assaulting him and stealing from him.  A custodial sentence is always the appropriate sentence unless there are exceptional circumstances and had it not been for the exceptional mitigation in respect of P, she would have received a custodial sentence.  In reaching the sentence the Court had considered the time she had spent in custody, the mitigation put forward by her Advocate and all the material before the Court. 

The Deputy Bailiff also ordered that P pay a £400 compensation order to the victim to reflect the amount that had been taken from him, with 12 months to pay. 

Conclusions granted. 

D. M. Cadin, Esq., Crown Advocate.

Advocate I. C. Jones for W.

Advocate J. M. Grace for S.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The two of you are here to be sentenced for the offence of robbery.  W, you are also here to be sentenced for the offence of having an offensive weapon in a public place.  Robbery is an extremely serious offence.  As far as this victim is concerned he was in a state of some intoxication but he will nevertheless have been extremely frightened by having three people assaulting him and stealing from him.  The offence is one which is rightly described by the Court of Appeal in the case of AG-v-Gill 1999/160 as usually requiring a custodial sentence and I will remind you of what was said by the Court of Appeal in that case.  It was mentioned by the Crown and I read it to you again:-

"In cases of violence, whether of assault or robbery or rape or others forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence, not to deter the offender because it is too late to do that, but

(1)       to deter others who may be tempted to engage in similar violence, and to remind them that if they do so they will similarly face long sentences of imprisonment; and

(2)       to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey."

So here we have a position where in a street in St Helier, just outside his home, a person is attacked by three people and robbed.  That is extremely serious. 

2.        P, in this case we have reached the conclusion that there are exceptional circumstances in your personal mitigation which enable us to apply and to impose a Community Service Order.  The reasons we have done that are these; we have taken particular account of the time you have already spent in custody and also all the material which is before the Court and of course the comments which have been made by your counsel, and for all those reasons, and we emphasise they are exceptional reasons, we are not going to impose a custodial sentence upon you, although as I say normally you would receive a custodial sentence. 

3.        We think the Crown's conclusions are right and we therefore impose a Community Service Order of 240 hours.  The sentence which we would otherwise have imposed is 18 months' imprisonment. 

4.        The victim this case has been robbed of £400.  He may have suffered other losses but he has definitely been robbed of £400.  We think it is right that he should have that money paid back to him and we therefore order you to pay him compensation of £400 or 1 month imprisonment in lieu and you must pay that money by 20^th December 2011; so within twelve months, you must pay £400 back to the victim. 

5.        W, the position as far as you are concerned is that you were fourteen at the time the offences were committed and by four days were fifteen at the time of Indictment.  There are special rules which apply to the sentencing of young people such as yourself and the legislature has made it plain that those who are under the age of fifteen at the date of conviction are not to be sentenced to any form of custody.  You were convicted at a time when you were fifteen years and four days and so we have jurisdiction to send you to youth detention applying those rules.  But we have had regard to the case of AG-v-Cameron [2008] JRC 182 which has been handed up to us by your counsel where the Royal Court gave effect to the English case of R-v-Ghafoor [2002] ECWA Crim 1857 and quoted the judgment of LJ Dyson in that case when he said this :-

"The approach to be adopted when a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of the conviction should now be clear.  The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence.  It has been described as "a powerful factor".  That is for the obvious reason as Mr Emerson points out, the philosophy of restricting sentencing powers in relation to young offenders, reflects both a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and b) the recognition that in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults.  It should be noted that the starting point is not the maximum sentence that could lawfully have been imposed but the sentence the offender would have been likely to receive".

That case of Ghafoor was considered in the case of R-v-Bowker [2008] 1 Cr. App. R (S) 72 in the Court of Appeal where as Archbold reports it thus at paragraph 5-279 (10^th edition):-

"Where an offender has crossed a relevant age threshold between the date of the offence and the date of conviction, culpability was to be judged by reference to the offender's age at the time of committing the offence, and it was fair and just to take as the starting point the sentence that the offender would be likely to have received if he had been sentenced at the date of the offence; but there was scope for flexibility in that the sentence which would have been imposed at the time of the offence was not a sole or determining factor though a powerful one."

The decision in the Court of Appeal in the case of Bowker was in 2008 and may well not have been available to the Royal Court in the case of Cameron which was also in 2008 and so we mention that case because there is a slight nuance to be taken from the Bowker case which varies to a small degree the decision in Ghafoor. 

6.        W, as far as you are concerned, bringing that back to the case which involves you, the result is that we are going to sentence as though you were fourteen at the time of the conviction.  Our sentencing powers in relation to fourteen year olds are not as extensive and community service is not open to us to impose upon you as a sentence if you had only been fourteen. 

7.        Having regard to all the circumstances we are going to put you on probation for 12 months.  The support of the Probation Service will be an important factor for you to have regard to and to take into account and to use to your benefit.  We are extremely concerned at the position that you have found yourself in, and we have also taken into account that you committed this offence with your mother and that it was difficult for you to go against her because she does have an authority over you as your mother.  But do not be under any illusions that the conduct which you engaged in was absolutely wrong; you must not get yourself in that position again.  The work which you will do with the Probation Office will, I hope, reinforce that to you. 

8.        So, on both Counts 1 and 2 you are sentenced to 12 months' Probation, concurrent. 

9.        Can I just say to members of the media that it is quite clear that you must not report the name of the mother and equally the name of the child. 

Authorities

AG-v-Gill 1999/160.

AG-v-Cameron [2008] JRC 182.

R-v-Ghafoor [2002] ECWA Crim 1857.

R-v-Bowker [2008] 1 Cr App R (S) 72.