Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2012]JRC216B

Royal Court

(Samedi)

19 November 2012

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Kerley and Crill.

The Attorney General

-v-

Sam Luke George

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

1 count of:

Grave and criminal assault (Count 1).

Age:  21.

Plea: Guilty.

Details of Offence:

On 25^th May, 2011, George was sentenced to 2 weeks' youth detention for breaching a Probation Order.  He had been in youth detention wing for about half an hour when he threw water, from a kettle that he had just boiled, over a fellow inmate, who was serving a sentence for sexual offences.  The victim suffered 7% burns to his torso and 1% to his left ankle and left forearm.  Scarring was visible to his hip a year later. 

George pleaded guilty to the offence on Indictment in August 2011 and was due to be sentenced in October 2011, however, there was deterioration in his mental health which required him to be hospitalised and treated in England.  His fitness to plead was called into question and this, together with the necessity for him to be treated, led to a number of adjournments.  He was diagnosed as suffering from paranoid schizophrenia.  His fitness to plead was eventually confirmed in August 2012. 

His sentencing hearing took place by video-link because George was unfit to travel to and attend court.  He was also considered unfit to be in prison. 

Details of Mitigation:

It was argued by the defence that George should be given an absolute discharge on the basis that had his condition been diagnosed correctly, he would not have been in prison in May 2011 and therefore might not have committed an offence.  George had been known to the Mental Health Services for some time.  It was also argued that no other sentence was appropriate because he was not fit to carry out or consent to a Probation Order or Community Service Order and he was not fit to be imprisoned. 

Previous Convictions:

His record included drugs offences, public order offences and one grave and criminal assault in 2008.  He had been sentenced to a variety of non-custodial sentences in the past. 

Conclusions:

4 years' youth detention is on the basis that the psychiatric reports presented evidence that George was a potential danger to the public.  If it had not been for that fact, the Crown would have moved for 3 years' youth detention. 

The Crown and the experts on both sides agreed that a hospital order together with a restriction order would have been the most appropriate sentence, however the Jersey Mental Health legislation does not provide for such a sentence. 

Count 1:

4 years' youth detention.

Sentence and Observations of Court:

Count 1:

3 years' youth detention.

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to one count of grave and criminal assault committed on 25^th May, 2011, shortly after he arrived at the Young Offender's wing when, without provocation, he threw or poured boiling water from a kettle over a fellow inmate, causing painful burn injuries from which the victim has now recovered, but which have left some permanent scarring. 

2.        Following the incident there was a marked deterioration in the defendant's mental health and he was transferred first to Orchard House and then to the Trevor Gibbens Unit in Kent where he remains. He has been diagnosed as suffering from paranoid schizophrenia and was for a time neither fit to plead nor responding to treatment.  However, with a more recent change in his treatment, he was deemed fit to plead in July of this year following a psychiatric assessment from Dr Jonathan Pyott and his formal plea of guilty was renewed on 29^th August, 2012. 

3.        In a report of 5^th November, 2012, Dr Pyott advised that the defendant was not fit to travel to Jersey and he is therefore, with his consent, attending this hearing by video-link pursuant to the provisions of Article 72 (A) of the Loi 1864 sur la Procedure Criminelle. 

4.        The defendant was transferred to England under the Crime Sentences Act 1997 Schedule 1, paragraphs1-5.6, 7 and 14 and the Transfer of Prisioners (Restricted Transfers) Channel Islands and Isle of Man Order 1998 schedule 1, paragraph 17.  In brief terms this Act and its corresponding Jersey Order make provision for, in this case, the defendant to be transferred to England during course of his remand and/or subsequent sentence.  He was transferred because it was considered that the Trevor Gibbens Unit was the most appropriate unit to deal with his specific needs.  As soon as he arrived in England a warrant came into effect to transfer him to the Trevor Gibbens Unit under Section 48 of the Mental Health Act 1983.  He did not spend any time within the prison system in England.  The Jersey Mental Health Law does not apply to the defendant at the present time and would not do so unless he were to return to the Island whilst he still had a mental health problem. 

5.        In practical terms, the defendant has, as Ms Morley-Kirk has explained to us, a dual status as a prisoner and a patient and because of his status as a prisoner, he is not allowed out of the grounds of the unit.  He is allowed out within the grounds and there is a cafeteria where the defendant can mix more freely with other individuals.  If the defendant receives a sentence of youth detention of such length as to require him to serve more time, then his consultant, Dr Pyott, would be at liberty to apply to the Ministry of Justice during the course of that sentence to enable the defendant to have supervised access into the wider community.  Provided this is granted, which would depend on a risk assessment which would be carried out at the time, then the defendant would be able to have access to the community to assist with his rehabilitation and treatment. 

6.        In case the defendant receives a sentence of youth detention of such a length as to require him to serve more time, arrangements have already been put in place to immediately notify the Ministry of Justice of his change of status to a sentenced prisoner so that the necessary warrant could be applied for to reflect that change in status.  A transfer from Section 48 to Section 47/49 of the Mental Health Act 1983.  In practical terms this means that the defendant would remain where he is without the need to physically transfer to a prison.  He is still considered to be unfit to be in prison. 

7.        In case the defendant receives a sentence of time served or another non-custodial sentence, he has been sectioned under Article 3 of the Mental Health Act 1983.  It is a civil section.  This was done on 9^th November, 2012, in anticipation of the sentencing hearing because it is considered that even if it were not for the criminal matter, the defendant would still need to be receiving the same treatment. 

8.        In his supplemental report of 16^th November, 2012, Dr Pyott advised, with caution, that overall there were good prospects for the defendant to be discharged into the community but uncertainty as to whether he would be able to live independently or require some degree of supervision for his day to day living.  He suggests that a period of 12 months would be the absolute minimum period for his hospital stay, with it being more likely to be a somewhat longer period.  As of today's date, the defendant has served the equivalent of a sentence of 2 years, 2 months and 16 days youth detention, with remission. 

9.        The Probation Department refer to the unsatisfactory state of the law in Jersey in that the Court is still not equipped with the power to make a hospital order combined with a restriction order and even if it had that power, there is no secure mental health facility in Jersey to which the defendant could be detained.  In the light of his complex needs no community disposal is recommended by the Probation Department and he is not considered suitable for any form of probation supervision. 

10.      As the Crown point out the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994 apply and in its view all three of the tests set down in Article 4(2) are met.  Firstly, the Prosecution say the defendant has breached Community Service or Probation Orders on several occasions either by reoffending or by reason of his behaviour.  In respect of paragraph (b) at the time of the first social enquiry report his violent behaviour was assessed as being unpredictable and indiscriminate.  Offenders matching the defendants have a high risk of reconviction within 12 months of assessment and of course, we also have the various psychiatric reports.  Finally, the Crown submit, that paragraph (c) is satisfied, namely that the offence for which the defendant is to be sentenced is so serious that a non-custodial sentence cannot be justified.  In the Crown's view it involved an unprovoked attack in prison with the use of boiling water as a weapon. 

11.      Applying the factors set out in Harrison-v-AG [2004] JLR 111, the Crown move for a starting point of 5 years.  It accepts that the defendant deserves some credit for his guilty plea but points out that the evidence against him was compelling. 

12.      The Crown is concerned that based on the psychiatric reports the defendant is an offender who can be classed as dangerous and presents a risk not only to the public but to, in particular, his parents.  We were referred by Ms Morley-Kirk to Thomas on Principles of Sentencing Second Edition by DA Thomas, where it states at page 38 as follows:-

"A decision inconsistent with the general body of cases was reached in Corner (1977) Crim LR 300 where a man of 36 was sentenced to 4 years' imprisonment for indecently assaulting two 9 year-old boys by touching their buttocks over their football shorts.  The Court stated that while these were 'trivial homosexual assault' there was medical evidence 'that this man might become extremely violent', although he did not qualify for admission to hospital and his offences did not allow the indeterminate sentence of life imprisonment to be imposed.  Observing that 'all we can do is to pass a sentence which is not unjustly long but will serve to protect the public longer than a sentence solely passed to meet the gravity of the assault', the Court upheld the sentence, together with a consecutive term for an unrelated offence. 

As in the case of deterrence, dangerousness may justify the sentencer in his original choice of a tariff sentence and in ignoring mitigating factors which might otherwise lead to a reduction in sentence.  In Wren a man of 25 with a substantial record, including indecent assault, pleaded guilty to rape.  He had abducted a girl in his car and threatened her with a knife, after purporting to engage her as a babysitter.  The Court received reports to the effect that the appellant was emotionally immature and of psychopathic personality, and that his behaviour outside prison was unpredictable.  The sentencer referred to 'the very real danger that this man constitutes to other girls' and imposed a sentence of eight years' imprisonment.  Upholding this sentence, the Court observed that it was a 'very severe sentence' but 'not out of scale'."

But for this danger which the Crown say the defendant presents, it would have moved for a sentence of 3 years' youth detention but bearing in mind the issue of danger, the Crown has balanced the need to protect the public from harm against his youth and other mitigating factors and has moved for a sentence of 4 years' youth detention. 

13.      In terms of mitigation, the defendant of course has his youth which is a very important factor and, as already mentioned, his plea of guilty.  Ms Corbel submitted that the defendant was clearly suffering from a psychiatric illness well before this offence and she said the offence was psychotically driven.  The degree of culpability was, in her view, effected by his mental state.  Everyone, she said, accepts that he too unwell to serve a prison sentence and that in reality prison is not an option for the Court.  As to danger, the defendant is now being treated and the public are therefore protected from further harm; safety of the public is a matter taken into account when a patient is sectioned.  The defendant, she says, should not be more harshly treated because he is unwell and when treatment is available.  Because of his mental state, she says that in her view none of the tests set out the Young Offenders Law apply.  This, she says, is wholly exceptional case in which an absolute discharge is the appropriate order given the inability of the Court to make a hospital order. 

14.      We, like many courts before us, are very concerned at the continued lack of the power to make a hospital order combined with a restriction order which would, we understand, have been the recommendation here and the on-going lack of suitable secure accommodation for mentally ill persons within the Island.  We accept that the defendant was mentally ill at the time of this offence but the advice of Dr Pyott is that his mental illness did not affect his criminal behaviour to the degree that he ought not to be found criminally responsible.  This is not a case where voices were directing the defendant to carry out this assault; it was a voluntary act for which a lengthy custodial sentence, in our view, has to be imposed.  Whilst we think that the Court can, on the authorities put forward by the Crown, ignore mitigation where the defendant is dangerous in order to protect the public, we accept Miss Corbel's submission that the protection of the public here lies in the fact that the defendant is now being treated and is responding to that treatment, and will remain in his current unit under the civil provisions of the Mental Health Act 1983 after his sentence has been completed, which will take into account the safety of the public. 

15.      On the authorities presented to us we accept that 5 years is the correct starting point.  We agree with the Crown that all of the tests under the Young Offenders Law do apply for the reasons put forward by the Crown, and taking into account all of the mitigation put forward, we impose a sentence of 3 years. 

16.      Mr George you are therefore sentenced to 3 years' youth detention. 

Authorities

Loi 1864 sur la Procedure Criminelle.

Crime Sentences Act 1997.

Transfer of Prisioners (Restricted Transfers) Channel Islands and Isle of Man Order 1998.

Mental Health Act 1983.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Harrison-v-AG [2004] JCA 046.

Thomas on Principles of Sentencing Second Edition.

AG-v-Baker [2011] JRC 103.

AG-v-Debieuvre [2010] JRC 125.

AG-v-Picot [2009] JRC 196.

AG-v-Bevis [2001] JLR N43.