Jersey Unreported Judgments

[2011]JRC057

ROYAL COURT

(Samedi Division)

14^th March 2011

The Attorney General

-v-

Julie Ann Breen

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

Age:  46.

Plea: Guilty.

Details of Offence:

Miss Breen was employed (in February 2010) to be the full-time, live-in carer of an elderly lady (Mrs A) who suffered from dementia.  Her contract was intended to be for three and a half weeks only.  She was employed to deal with all aspects of the Mrs A's care.  Towards the end of the three and a half week period, Mrs A's family became concerned about her welfare.  The GP was called, following which Mrs A was hospitalised.  She was found to be suffering from severe dehydration and kidney failure.  Her urine was the consistency of thick pus.  After a period of treatment, Mrs A's condition improved, but she died a few weeks after that as a result of an underlying health problem.  The death was not connected to the neglect.

Details of Mitigation:

Miss Breen had come to Jersey for a three week period but had had to remain here for a year as a result of the case.  The case had been delayed for a variety of reasons including: Miss Breen's two changes in legal representation and the fitness to plead hearing before the Superior Number in December 2010 (at the Prosecution's request).  Miss Breen was of good character.  She had found the custodial remand at the beginning of the case traumatic.  The neglect was not deliberate which was accepted by the Crown, it was reckless.

Previous Convictions:

None.

Conclusions:

The statutory maximum for this offence is 6 months' imprisonment.

Sentence and Observations of Court:

The Court asked that the matter of the statutory maximum be referred to the legislature because it is far too low, so that a very significant increase can be considered.

Ms R. C. L. Morley-Kirk, Crown Advocate.

Advocate S. E. Fitz for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here today to be sentenced on one count of wilful neglect of a mentally disordered patient, contrary to Article 37(2) of the Mental Health (Jersey) Law 1969.  The offence in question is in these terms:-

"It shall be an offence for any individual to ill-treat or wilfully neglect a mentally disordered patient or patient who is an addict, who is for the time being subject to the individual's guardianship under this Law or otherwise in the individual's custody or care." 

Any person guilty of an offence under that Article is liable to a fine not exceeding £100, or to imprisonment for a term not exceeding 6 months or both."

2.        In this case the count alleged against you which you have admitted, is that you failed to ensure that Mrs A consumed sufficient liquid thereby ensuring she did not become dehydrated and you then failed to seek medical help after she did become dehydrated.  The summary of facts put before the Court on which we sentence you, because there has been no dispute about it, is that Mrs A's dehydration was such that she was suffering acute renal failure, most probably due to dehydration. 

3.        The Court has noted that there is no causal link between your neglect of Mrs A and her death on 5^th April, two or three weeks after the dehydration was discovered and she was admitted to hospital.  Nonetheless the last few days that Mrs A lived must have been very uncomfortable for her as a result of the offence which you committed. 

4.        The Court has taken into consideration the mitigation which has been very carefully and skilfully put forward by your Advocate, in particular that you have a good character; that you have no previous convictions that have been put before us, and in particular your guilty plea for which both the Crown and your Advocate contend should have a full discount.  What that means is a full discount of one third which should be allowed and the Court allows you that full discount.  We have also taken into account the length of time that these proceedings have been hanging over you and there is undoubtedly a stress to that but, of course, the other side of that stress is the stress which the victim suffered over the last two or three weeks of her life.  We have taken into account all the other personal mitigation which has been presented to us. 

5.        In our view this offence merits a custodial sentence.  We think that the maximum which has been prescribed by the Law is far too low and we strongly recommend to the Crown that that matter is raised with the relevant authorities so that the legislature contemplates a very significant increase in the maximum penalties in very early course, and Mrs Morley-Kirk, I would ask you to refer those comments to the Attorney General. 

6.        Nonetheless, we have to sentence today on the basis that 6 months' imprisonment reflects the maximum which can be imposed, and therefore reflects the worst case which one can contemplate under this particular provision, and we accept the submission from Advocate Fitz that one of the key distinctions will be between intent and recklessness, that is to say, if your offence had been committed intentionally it would have been worse than committed recklessly, as you have committed it. 

7.        But we also accept Advocate Morley-Kirk's submission that this was a potentially fatal neglect and that puts the matter towards the top end of the offence which has been committed.  The dehydration was potentially fatal because it could have led to Mrs A's death.  We also note that your failure to keep Mrs A properly hydrated, your offence took place over a period of time, it is not just over half an hour or three quarters of an hour but it was over at least two days and it might have been over four days. 

8.        Taking all these matters into account we think that the Crown's conclusions are too high, because they must have started at 6 months' imprisonment but in the circumstances the right course is to take a starting point for this offence of 5 months' imprisonment from which we make reductions for the mitigation which we have mentioned, and as a result, the sentence imposed on you is 10 weeks' imprisonment.  That will mean, in practical terms as we calculate it, that you will have a further two weeks left to serve. 

Authorities

Mental Health (Jersey) Law 1969.