Jersey Unreported Judgments

Appeal (Criminal) - application for leave to appeal and reasons for granting of same.

[2017]JRC067

Royal Court

(Samedi)

3 May 2017

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Nicolle, Olsen, Grime, Ramsden and Sparrow

Shaun Mark Carrel

-v-

The Attorney General

 

Advocate J. W. R. Bell for the Appellant.

R. C. P. Pedley Esq., Crown Advocate.

JUDGMENT

THE BAILIFF:

1.        The Superior Number of the Royal Court heard an application for leave to appeal on 12^th April, 2017, in relation to the sentence of the Inferior Number of the Royal Court imposed on 27^th January, 2017 (AG-v-Carrel [2017] JRC 021).  The application for leave was granted and the appeal allowed with reasons reserved.  This judgment contains those reasons. 

Background

2.        On 27^th February, 2015, the applicant, then aged 24, was arrested for three offences under the Misuse of Drugs (Jersey) Law 1978, namely the production of cannabis plants at his home address, the possession of associated utensils, and the possession of herbal cannabis.  He had no previous convictions.  Initially on remand to the Royal Court, the applicant pleaded not guilty to the charges brought against him, and was sent for trial.  Counsel then acting on his behalf obtained an intermediary report in the light of concerns regarding his understanding and communication abilities.  In due course he pleaded guilty to all of the charges and the need for a trial was obviated. 

3.        On 21^st January, 2016, the applicant appeared before the Royal Court for sentence.  The Court imposed a sentence of 210 hours' community service (equivalent to a 15 month prison sentence) and a 12 month probation order.  The potential yield of the four mature cannabis plants which he was cultivating was between 112gms and 336gms of flowering heads with a street value between £1,680 - £8,400.  The estimated potential yield of the other plants which it was said that the applicant had previously grown was between 252gms and 756gms, with a street value between £3,780 - £18,900.  The expert noted that the volume of growing equipment represented a significant financial investment.  In sentencing him, Commissioner Sir Michael Birt described the offence as a "sophisticated setup" which although ostensibly entirely for personal use, was likely to have provided a supply of cannabis for other like-minded people on a social basis.  The Court reached the conclusion that this was an exceptional case and it would be right to proceed by way of non-custodial sentence. 

4.        On 19^th August, 2016, the applicant was presented before the Royal Court again, not for reoffending but on a breach of the community based orders.  The Court adjourned the proceedings for the preparation of an autism spectrum condition assessment report - when this was provided, it was clear that there was evidence to suggest that the applicant has a number of significant difficulties associated with an autism spectrum condition.  On 4^th November, 2016, (AG-v-Carrel [2016] JRC 199B) the Court dealt with the breach of community based orders.  The applicant was reminded that it had been a very close decision as to whether he should go to prison on the first occasion.  The Court had before it a probation report which suggested that a probation order was not viable, despite the fact that it had been imposed and the Court concluded that it would take one further risk.  Accordingly the probation order was revoked and the community service order for 180 hours was continued.  The Court concluded its sentencing remarks by saying this:-

"You must comply with that order. If you do not, no matter whether you think it is right or whether you think it is wrong, you will go to prison. Do you understand me?"

5.        On 27^th January, 2017, the applicant was presented before the Royal Court again, not for reoffending but on an alleged further breach of his community service order.  The breach report provided by the Probation Department indicated that the applicant had 165 hours' of community service remaining and that he had failed to report for community service on 23^rd November and 21^st December, 2016.  In the judgment, the Deputy Bailiff said this:-

"1.      Mr Carrel, you are before us today because you have continually failed to respond to the opportunities given to you by both the Probation Service and the Court to complete the period of community service imposed on you by this Court on 21^st January, 2016, and reconfirmed by this Court on 4^th November, 2016."

[The Court referred to the community service order as having been an act of mercy and leniency and reminded the applicant of what the Court had said on the last occasion].

"...

4.        But in the light of all that we have heard, and in the light of the flagrant breach of the orders of the Court, we see no alternative but to consider that we have reached the limits of our patience.  Accordingly, we discharge the community service order and sentence you to 11 months' imprisonment."

6.        It is against that sentence that the applicant has sought leave to appeal.  He has been in custody since 27^th January, 2017. 

7.        As part of the application for leave to appeal against sentence, the applicant seeks to put before us some additional material that was not before the Royal Court. The additional material comprised a witness statement signed by Dr Gail Cochrane dated 15^th March, 2017, together with various medical certificates which had been issued to the applicant covering the period 13^th October, 2016, until 31^st January, 2017; a report dated 10^th February, 2017, from Dr Cochrane to Advocate Macdonald, the advocate previously acting for the applicant, and an affidavit sworn by the applicant on 15^th March, 2017, in which he asserted that he had explained to his previous counsel that it was because he had been feeling seriously ill that he had not attended community service and that he had medical certificates to evidence this.  

8.        There was of course the additional material which Advocate Bell very properly put before us, namely an affidavit sworn by Advocate Macdonald in relation to the instructions he had received from the applicant.  Advocate Bell also provided to us a letter dated 6^th April, 2017, from Dr Julie Le Cornu, who has seen the applicant twice during his incarceration at HMP La Moye and a letter dated 10^th April, 2017, from Deputy Montfort Tadier which we think amounted to a reference on behalf of the applicant. 

9.        It was this new material which formed the basis of the application to admit further evidence on appeal. 

Principles to be applied

10.      Under Article 34 of the Court of Appeal (Jersey) Law 1961, the Court can in its discretion order any witnesses who would have been compellable witnesses at trial to attend and be examined before the Court, whether or not they were called at the trial.  If the Court admitted the evidence, when deciding what effect it should have, the Court would consider whether there might have been a reasonable doubt in the minds of the jury as to the appellant's guilt if that evidence had been given, or on an appeal against sentence, what impact the evidence might have had on the sentence passed.  The Court of Appeal has established the principles upon which that discretion should be exercised.  In AG v Gorvel [1973] JJ 2503, applied by the Court of Appeal in Norris v AG [2014] JCA 087, Le Quesne JA, who gave the judgment of the Court, cited the principles stated by the English Court of Appeal in the case of R v Parks 46 Cr. App. R.29 where Lord Parker, CJ, said at page 32:-

"Those principles can be summarised in this way: first, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this Court to decide whether it is to be believed or not, but evidence which is capable of belief. Fourthly, the Court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial."

11.      Le Quesne JA said at page 2505:-

"... [we] consider that those principles are the principles which ought to be observed by this Court in exercising its discretion to admit further evidence under Article 32 [now renumbered] of the Court of Appeal (Jersey) Law ..."

12.      In Norris, the Court of Appeal said at paragraph 50:-

"Nonetheless, by parity of reasoning in appeals against sentence, if an appellate court decides to admit the evidence because the first three tests are satisfied, the Court must go on to consider what impact the evidence would have, if any, on the sentence passed on the offender."

13.      Those then are the principles which we now apply. 

Decision on admissibility

14.      The evidence of Advocate Macdonald, then acting for the applicant, was that he sent an email to the applicant on 19^th January in which he said, in relation to medical records:-

"You explained that you had seen your GP, Dr Gail Cochrane, regularly but that there was no condition which had prevented you from attending your appointments with the Probation Service.  If, contrary to what you last told me, you think Dr Cochrane and/or your latest medical records could contain anything to explain your failure to attend community service then please let me know."

15.      Advocate Macdonald did not agree that the applicant had explained to him that he had not attended community service appointments because he was ill - rather he gave the explanation in relation to the failure on 23^rd November that it was because his shower was not working, and in relation to the failure to attend on 21^st December, that he simply could not remember.  Advocate Macdonald said that the applicant never described himself as being seriously ill. 

16.      Advocate Macdonald also provided however, a copy of an email which the applicant's mother had sent to the Advocate on 26^th January at 9.26pm, the day before the sentencing hearing.  In that email, Mrs Carrel indicated that the applicant had not attended community service because he had been signed off sick by his doctor constantly since the last court date with depression, stress, anxiety and panic attacks.  She said she would try to get the evidence of the sick notes from the Social Security Department if she had the chance to do so.  The email set out other material relevant to the applicant's illness.  Advocate Macdonald indicated that he made a copy of this email available to the Court on 27^th January, but that neither the applicant nor his mother nor anyone else had ever provided him with copies of the sick notes themselves. 

17.      After sentence Advocate Macdonald was informed by the applicant of the existence of the sick notes; he contacted Dr Cochrane as a result of which the various medical certificates were obtained.  In the applicant's affidavit, he asserted that his advocate had told him that he would contact the applicant's GP to obtain copies of the relevant certificates. 

18.      We accept that neither the advocate nor the applicant should be regarded as being untruthful.  In our view, there was a misunderstanding between the applicant and his advocate, the reasons for which lie not with the advocate but in the vulnerabilities of the applicant, which are set out in the psychiatric and probation reports available to us.  In the circumstances, we consider that the evidence should not be regarded as having been "available" at the time of the trial.  The medical evidence was clearly relevant to the issues, and clearly capable of belief. It was capable of being relevant not only to the question of any alternative sentence but also to the question of whether there was ever any breach of the community service order at all, because if the applicant had genuinely been medically unfit to do community service, he should not have been regarded as being in breach for not having done it.  Nonetheless, the applicant ought to have provided medical certificates to the community service manager, in advance if that were possible, and if not then as soon as possible after the event.  Accordingly, we have treated the applicant as being in breach of the community service order, and indeed Advocate Bell did not contend otherwise, but we are satisfied that the evidence that the applicant had been signed off by his doctor might have made a difference to the Royal Court's assessment of the appropriate sentence, and we therefore allowed that evidence in for the purposes of the application for leave to appeal.  

The application for leave

19.      It is well established that an application for leave to appeal must in general terms be based on one of two grounds - either the sentence was wrong in principle, or it was manifestly excessive.  Advocate Bell's submission was that the Royal Court did not fully explore the fact that the applicant had been signed off sick.  That was, as he described it, the headline point.  We were faced with an exceptional case.  When it came to it, we think Advocate Bell did accept that his submission in reality was that the sentence was wrong in principle and that a suspended sentence should have been imposed instead.  In a nutshell, Advocate Bell relied upon the following:-

(i)        The defendant had been in custody since January and had served 11 weeks' imprisonment already.  It was appropriate to have regard to this factor, he said, because as part of the appeal one should look at the impact of prison on the applicant. 

(ii)       It is highly likely that the applicant is autistic.  

(iii)      A community service order was setting the applicant up to fail.  If one had regard to the social enquiry report in relation to the applicant's breach of probation, it was clear that the Probation Service regarded the cognitive inflexibility of the applicant, and his inability to accept responsibility for his offending as making intervention with him by the Probation Service extremely difficult.  The probation officer, in her report in November 2016, noted that the psychiatrist had described the applicant as completely overwhelmed with anxiety due to the stresses and pressures of being under two court orders, and that he could not manage his anxieties.  In a discussion between the probation officer and the psychiatrist on 2^nd November, 2016, it appears that the psychiatrist accepted that if the community service order were to be continued by the Court, the stress and anxiety which that would generate in the applicant would again become overwhelming and he might well opt out of the supervision and/or the community service scheme, such that he would be back in Court under breach proceedings again.  The psychiatrist had indicated that a suspended sentence order was potentially the best solution. 

20.      Crown Advocate Pedley reminded the Court that there had been two failures to appear and three late attendances between March and June 2016 for which there was no medical explanation, and that despite the medical certificates, there had in fact been some attendances during the time when those certificates remained valid when community service had been performed in accordance with the order.  He submitted that the suspended sentence would not meet the gravity of the offending and it would therefore be wrong to replace the community service order with a suspended sentence. 

Decision

21.      This Court agrees with the Inferior Number of the Royal Court that the index offence of producing cannabis was serious.  It also agrees with the general proposition that when an offender is given a warning, in as clear terms as this applicant was given that a further breach would lead to a custodial sentence being imposed, it will be in very rare circumstances indeed that the custodial sentence would not thereafter be imposed and, if imposed, would not be upheld on appeal.  One Jurat was of the view that these features entirely justified the view expressed by the Royal Court that a suspended sentence would not be a sufficient sanction for the criminality of the behaviour of the applicant. 

22.      The majority of this Court, however took the view that there was ample evidence of misunderstanding, which might well be down to the vulnerability of the applicant and his place on the autistic spectrum.  It is clear that the Probation Service have been concerned from the outset as to the viability of a community disposal.  Furthermore the lower court does not seem to have taken into account at all the evidence before it that the applicant had received medical certificates from his doctor, as that possibility, apparent from his mother's email to Advocate Macdonald, does not appear anywhere in the sentencing remarks.  That being so, the fact of those certificates appears to have been disregarded and as a result no enquiry made as to what the true medical position was.  

23.      It is clear from reading the transcript of the proceedings before the lower court that the Court did have some information in relation to the medical certificates which had been issued, but not only did the Court not refer to it, but the applicant's counsel did not place any focus on the issue either.  In the view of the majority of this Court, when one puts all the mitigation together, and adds to it the fact that the applicant has not reoffended, but has been breached twice for non-performance of the community service order, the right conclusion is that the sentence imposed below was wrong in principle, and therefore should be set aside.  For these reasons, the Court granted the application for leave to appeal, allowed the appeal, and on the three counts of the indictment in respect of which the applicant was sentenced first on 21^st January, 2016, the community service orders were discharged and in lieu the applicant sentenced to 8 months imprisonment on each count, suspended in each case for a period of 2 years. 

24.      We record that in explaining to the applicant that he was liable to be sentenced to prison if he reoffended in any way in the next two years, we emphasised to him that the index offences, particularly the offence of production of cannabis, were serious and fully merited a custodial sentence.  The applicant told us that he understood that, and would not be reoffending.  We would merely like to add that we had contemplated the addition to the suspended sentence of a supervision order pursuant to Article 6 of the Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2003.  We have not followed that course because the original probation order was discharged by the Royal Court in November 2016; but we think that the applicant would gain from any assistance he feels able to seek voluntarily from Autism Jersey, assuming they are able to provide it.  The Probation Service will be able to assist him in making that contact. 

Authorities

AG-v-Carrel [2017] JRC 021.

Misuse of Drugs (Jersey) Law 1978.

AG-v-Carrel [2016] JRC 199B.

Court of Appeal (Jersey) Law 1961.

AG v Gorvel [1973] JJ 2503.

Norris v AG [2014] JCA 087.

R v Parks 46 Cr. App. R.29.

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