Jersey Unreported Judgments

Hearing (Criminal) - breach of community service order.

[2016]JRC136

Royal Court

(Samedi)

12 August 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Crill and Olsen

The Attorney General

-v-

Paris Limahl Botting

Sentencing by the Inferior Number of the Royal Court on a breach of a Community Service Order imposed on 8^th January, 2016, on the following charges:

First Indictment

2 counts of:

Conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Counts 1 and 2).

Second Indictment

2 counts of:	Production of a controlled drug, contrary to Article 5(a) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1 and 7).
1 count of:	Being concerned in the supplying of a controlled drug, contrary to Article 5(c) of the Misuse of drugs (Jersey) Law 1978 (Counts 2).
2 counts of:	Offering to supply a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Counts 3 and 6).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978 (Count 4).

Age:  26.

Plea: Guilty.

C. M. M. Yates, Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE commissioner:

1.        On 12^th July, 2016, the Court found that the defendant was in breach of a Community Service Order imposed upon him and sentenced him to imprisonment for the original offences, with an allowance for the hours he had served. 

2.        On 8^th January, 2016, the defendant stood to be sentenced (with another) by the Royal Court under two counts of conspiracy to evade the prohibition on the importation of a Class A drug (the first indictment) and six counts of the production and supply of cannabis and the supply of Ecstasy (the second indictment).  The Crown sought total sentences of imprisonment of 3 years and 9 months.  The social inquiry report before the Court said this at paragraphs 52 and 53:-

"52     If the Court are willing to consider a non-custodial sentence, the defendant has consented to a period of community service as a direct alternative.  He has previously not been assessed as suitable for the community service Scheme, attributing his ADHD as the reason he could not complete it, adding he would need the encouragement of staff to stop him from misbehaving.  It was deemed that the special attention he may need would be unrealistic given the quantities of people on the scheme and the demands upon their staff already.  Mr Botting now demonstrates a change in attitude.  He tells me that as a result of working, he has learnt to take direction and responsibility.  He tells me he was trusted and has always acted in a mature manner while in employment and he assures me he will transfer these skills if given the opportunity to complete a community service Order.

53       Due to his assessed risk, I would also suggest that the Court consider a Probation Order on this occasion.  There is no doubt that Mr Botting's previous engagement with the service has been poor.  However, the defendant has made some progress while on bail and since being remanded in custody, has expressed high levels of motivation to engage and continue to make positive changes to his life."

3.        It can be seen that having previously been assessed as unsuitable for community service, the defendant sought to persuade the Court that there had been a real change in his attitude. Bailhache, Bailiff, said this in giving the sentence of the Court:-

"4.      We are going to avoid a custodial sentence but I want you both to know how close you have come to it.

5.        Mr Botting, we are fairly circumspect - we are not sure - about accepting the explanations you have given.  We are giving you an absolutely last chance.  You can count your life on it that you have never been as close to receiving a very substantial custodial sentence.  One of the reasons that we are going to avoid in this case is that you have actually served 4 months or so in prison so far and we think that it gives us the opportunity of taking something of a chance with you and imposing a non-custodial sentence in respect of these offences.

6.        Accordingly you are going to be given an amount of community service and you are going to be placed on probation for 12 months and I must warn you that if you do not perform the community service or that if you breach your probation order in any way at all, you are liable to be brought back to Court and sentenced again for these offences, in which case it is very likely the Court will impose a custodial sentence then."

4.        The defendant was sentenced to a total of 330 hours of community service, and placed on probation for 12 months.  He completed 45 hours, but on 12^th May, 2016, Mr M Cutland, the Assistant Chief Probation Officer, wrote to the Attorney General saying that the defendant's attitude and response had been unacceptably poor and that he should be returned to the Court for breach. 

5.        The Attorney General's representation outlined the defendant's alleged conduct in this manner, underlining in bold the specific refusals to cooperate, lateness, poor work and bad behaviour:-

"15.01.16         Mr Botting arrived late for his initial interview with me and demonstrated a poor attitude.  He questioned the rules of the Order and stated that he wasn't a slave.

17.01.16          Completed 5 hours.  His performance was regarded as poor and unmotivated.  He used a mobile phone towards the end of the session.  A letter reminding him of his obligations was sent to him.

24.01.16          Completed 5 hours.

31.01.16          Completed 5 hours.  Had to be motivated and given guidance about not always questioning the way the scheme was managed.

07.02.16          Reported late   Made his own way to the work party site but, in line with Service policy, was not allowed to work.  Mr Botting was praised for making the effort to attend but it was explained that to allow him to work would set an unhelpful precedent.

14.02.16          Completed 5 hours.

21.02.16          Completed 5 hours, but was noted to repeatedly use the toilet which was deemed to be excessive.  He explained that he had food poisoning.

28.02.16          Completed 5 hours but warned twice for poor behaviour including use of foul language and spitting.

06.03.16          Claimed to be unwell during community service, and was returned to town.

11.03.16          He attended a compliance meeting with me to discuss his progress with the Community Service Order.  Was reported as being punctual and polite.  He was reminded about maintaining a positive attitude and appropriate behaviour when on the work parties.

13.03.16          Completed 5 hours

20.03.16          Completed 5 hours

04.04.16          Removed from work party after reporting feeling unwell.  Staff recorded him as appearing unmotivated to perform the work.

12.04.16          Interview with myself and his Probation Officer in an attempt to motivate him to complete his community service order in a more appropriate fashion.  His attitude was poor during the interview and he referred to community service as 'shit'.

17.04.16          Completed 5 hours.  Had to be reminded about his conduct at the beginning of the session.  Mr Botting informed the supervisor that he was going to do the minimum amount of work that was acceptable.

24.04.16          Was warned at the assembly point after initially refusing to get into the allocated van.  He was also asked to refrain from using foul language.  Upon arrival at the work destination Mr Botting was reluctant to leave the van as there was rain in the air. The other members of the work party were working without complaint and as instructed.  Mr Botting told the supervisor that the scheme was 'fucking stupid'. He repeated this to the Duty Manager who decided to remove him from the placement due to his uncooperative attitude and lack of motivation."

6.        When the Attorney General's representation was first brought before the Royal Court, the defendant denied being in breach of the community service order and the matter was adjourned for the Court to hear evidence.  On the day of the hearing, Crown Advocate Yates informed the Court that he intended to call Mr A Le Marrec, the Assistant Community Service Manager, and the Duty Manager who was present on 24^th April, 2016.  Advocate Steenson took exception to this.  Although he had been provided with the Attorney General's representation, and the particulars within it, together with the social inquiry reports, he had not been given written statements by the two officers the Crown intended to call, which statements would, he said, have fleshed out the particulars given in the Attorney General's representation. 

7.        After some discussion, it became clear that the defendant was prepared to admit the facts as set out in those particulars, but maintaining his denial that those facts constituted a breach of the community service order.  Advocate Steenson did not seek to cross-examine the two officers on either the particulars or the social inquiry reports.  Nor did Advocate Steenson seek to call the defendant to give evidence and so the Court proceeded to hear submissions on whether the agreed facts constituted a breach and if so, what order the Court should make. 

The law

8.        Under Article 7(1) of the Criminal Justice (Community Service Orders) (Jersey) Law 2001 ("the Community Service Law") if it appears that an offender has failed to comply with his obligations under Article 5, the Attorney General may present the offender before the Court which made the order.  Article 7(4) then goes on to provide:-

"If it is proved to the satisfaction of the court before which the offender appears or is brought or to which the offender is committed that the offender has failed to comply with any obligation under Article 5, the court may -

(a)       continue the order, with or without variation and with or without the imposition of a fine; or

(b)       revoke the order and deal with the offence in respect of which the order was made, in any manner in which the offender could have been dealt with for that offence by the court which made the order."

9.        Article 5 is in these terms:-

"(1)     An offender in respect of whom a community service order is in force shall -

(a)       ...

(b)       perform, to the satisfaction of the relevant officer and for the number of hours specified in the order, such work at such times as the offender may be instructed by the relevant officer."

10.      It was agreed, without any discussion, that the breaches had to be proved by the Attorney General to the criminal standard and that there was an objective element to whether the work had been performed to the satisfaction of the relevant officer, namely that it had to be to the reasonable satisfaction of that officer. 

Breaches proved

11.      Advocate Steenson said that the admitted facts had to be seen in context and that as any breach could lead to the Court imposing a sentence of imprisonment, to which the community service was the alternative, the test had to be interpreted strictly. 

12.      Advocate Steenson volunteered that his client had behaved in a stupid and selfish way, which he did not in any way endorse, but a defendant must be told exactly what he can or cannot do under the scheme, so that there was a clear line in the sand beyond which he would know he could not go.  For example, every defendant should know:-

(i)        how many times he could swear.

(ii)       how many times he could openly question the scheme. Advocate Steenson commented that we live in a democracy and therefore the defendant should be entitled to question the scheme at any time; and

(iii)      how many times he could be late and how late.

13.      The defendant had, through his original defence counsel, asked for a community service to be imposed (having previously been assessed as unsuitable for community service) and had signed the usual consent form agreeing, inter alia, to complete the hours ordered "to the satisfaction of the Probation Service".

14.      In the addendum social inquiry report, Mr Le Marrec said he had interviewed the defendant following sentence and explained the work party rules to him, which were contained in a document headed "What you need to know" which was handed to him.  Those rules are as follows:-

"WHAT ARE THE RULES?

You must obey all work instructions given to you.

You must not be absent without permission.

You must not attend under the influence of alcohol or drugs.

You must not behave aggressively or violently or threaten violence.

You must not use language or behaviour that is offensive to others.

You must not use a mobile phone.

There will be additional rules you will be asked to keep depending on your work placement.  These will be explained to you at your first interview."

15.      Advocate Steenson claimed that the defendant never received that document, which it is clear to us is routinely given and explained to every defendant on the scheme.  Furthermore in agreeing to the facts set out in the particulars the defendant had admitted the following:-

"15.01.16         Mr Botting arrived late for his initial interview with me and demonstrated a poor attitude.  He questioned the rules of the Order and stated that he wasn't a slave."

The defendant could only have questioned the rules of the scheme if he had been aware of them.  Furthermore, it is clear from the particulars that he was routinely reminded about his obligations under the scheme and given guidance.  The Court was in no doubt that the defendant was well aware of the rules of the scheme.

16.      Advocate Steenson went on to give what he said was the context to the incidents set out in the particulars, which we took into account, and which we will not set out here, save that, by way of example:-

(i)        He told us that on 12^th April, 2016, when the defendant referred to the scheme as "shit", he meant "bollocks" - namely, something he did not want to do. 

(ii)       He told us that defendant did not remember saying on 24^th April, 2016, that the scheme was "fucking stupid", but he had had a bad morning and just did not want to be doing the scheme. 

17.      Finally, Advocate Steenson submitted that because it was acknowledged that the defendant had completed 45 hours and that the Crown was intending to give him credit for those hours should a sentence of imprisonment, following a proven breach, be imposed, it must follow that the hours had been completed to the satisfaction of the relevant officers.  To the extent that the defendant did not carry out any particular hours' work satisfactorily, he should not have been credited with having completed it. 

18.      We rejected that suggestion.  The number of hours completed by the defendant is quite separate from the question of whether the work performed during those hours was satisfactory and it is with the performance of the work that the relevant officers have to be satisfied. Reducing Article 5(1) to its essentials- "An offender...shall...perform, to the satisfaction of the relevant officer...such work..."

19.      The task for the Court was straightforward.  We had to be satisfied beyond all reasonable doubt that the defendant had not performed the work he was instructed to do to the reasonable satisfaction of the relevant officers.  We were so satisfied and therefore found the breach of the community service order proved. 

Sentence

20.      Under Article 7(4) of the Community Service Law there were, in reality, two options before the Court following proof of a breach:-

(i)        Continuing the existing community service order, as moved for by Advocate Steenson, potentially with further hours being imposed by way of punishment for the defendant's conduct or,

(ii)       Revoking the existing community service order and imposing the sentence of imprisonment to which the community service order was an alternative, as moved for by the Crown. 

21.      The conclusion reached in the social inquiry report was that the defendant no longer presented as a suitable candidate for the scheme.  In the addendum report, Mr Le Marrec gave some background to the way the scheme works.  Quoting from that addendum:-

"1.       The Jersey Probation and After Care Service manages the Community Service scheme which has been in existence since 1982.  It is operated under the Criminal Justice (Community Service Orders) (Jersey) Law 2001.  The scheme operates under standards approved by the Royal court.  The average amount of hours supervised each year is twenty thousand.  The vast majority of clients satisfy Community Service Orders.  This Service works with clients to achieve a positive outcome.  There is a graded approach to enforcement which includes warning letters and, if no improvement, a compliance meeting with a manager.  When an offender completes an order they are offered the opportunity to complete a feedback form about the supervision and offer comments regarding the scheme.  The overwhelming majority state that they were treated with fairness and respect.

2.        ...

3.        ...

4.        Work Party Placements

           Community Service work party placements are supervised on a ratio of one staff member to 6-8 offenders.  A work party is supported by a duty manager or team leader. The scheme works at such high profile placements as Jersey Hospice, Durrell, National Trust for Jersey, numerous sport clubs, Youth Clubs, Conservation Groups and Churches.  At all of these placements there will be frequent contact with the public, in the case of Durrell often with families.  The Clarkson House project for Hospice requires considerable sensitivity and it is of paramount importance that there are high standards of behaviour.  All activities have been risk assessed and risk assessments are in place.  Sessional supervisors have attained accredited Health and Safety certificates relevant to the tasks.  They have also attended Pro-Social Modelling and Diversity Training.

5.        The Community Service scheme has gained an excellent reputation for high standards of work and managing beneficiaries' expectations.  The behaviour and standards of work must meet or exceed the expectations of the beneficiary.  Were anti-social behaviour and bad language not to be challenged it is likely that placements would be lost as beneficiaries would lose confidence in the scheme.  Without appropriate placements, the future of the scheme would be placed in jeopardy.  It is also important to ensure that behavioural standards are maintained as without acceptable boundaries, the scheme could become unsafe for clients and staff alike.  It is the view of the Service that all workplaces need to have minimum standards of behaviour and that clients need to know what is expected of them.  If anti-social behaviour and language is not challenged by staff then others are likely to copy it and believe they can act as they choose.  It is important that Community Service staff act as role models and supervise in a way that safeguards clients and the public whilst maintaining the reputation of the scheme.

6.        Community Service staff will show discretion when dealing with behavioural issues and accept that the context is often significant.  For instance there is a difference between an expletive in the heat of the moment following a minor accident or mistake and foul language that is directed towards the scheme or staff in a contemptuous manner.  In the latter case this attitude and behaviour usually signals a significant lack of motivation and is likely to result in enforcement action.

7.        The scheme is designed to offer the Courts "a credible alternative to custody."

22.      We fully endorse the above and confirm that the rules of the scheme set standards which are entirely reasonable.  The importance of maintaining community service as a credible alternative to custody cannot be stressed enough, and for it to be maintained, it is crucial that behavioural standards are maintained at an acceptable level.  If anti-social behaviour and language is not challenged by the officers managing the scheme and dealt with by the Court, then the effectiveness and reputation of the scheme risks being significantly undermined. 

23.      In mitigation, Advocate Steenson said that the defendant recognised the need to engage.  The penny had now dropped and he was sorry for his behaviour.  He wanted another chance to complete the scheme.  Advocate Steenson informed us that the defendant uses foul language as part of his ordinary conversation.  He is by nature difficult, although not malicious.  He will always question everything.  He submitted that the defendant should be sent back on to the scheme against the recommendation of those that manage it. 

24.      We were mindful of the very clear warning given by the Court when community service was imposed- "You can count your life on it that you have never been as close to receiving a very substantial custodial sentence."  The defendant had asked the Court to impose a community service order having persuaded the Probation Department that his attitude had changed.  Yet he arrived late for the very first interview, demonstrating a poor attitude and immediately questioning the rules of the scheme, stating that he was not a slave. 

25.      The Probation Department does not now consider him to be suitable for return to the scheme and Advocate Steenson's candid comments about the character of the defendant indicated to us that sending him back against the recommendation of those managing the scheme would serve to undermine their position and would, in any event, set the defendant up to fail again. 

26.      We concluded that the only appropriate order we could make was to revoke the community service order (and the probation order) and impose upon the defendant the sentence that the Court would have imposed for the original offending, having given him credit for the hours he had in fact completed.  The defendant was therefore sentenced to a total of 16 months and 2 weeks' imprisonment. 

Authorities

Criminal Justice (Community Service Orders) (Jersey) Law 2001.

AG-v-Botting [2016] JRC 005.