Jersey Unreported Judgments

Appeal by the Prosecutor against bail granted in the Youth Court

[2023]JRC061

Royal Court

(Samedi)

19 April 2023

The Attorney General

-v-

RR

A. Harrison Esq, Advocate.

Advocate S. E. A. Dale for the Defendant.

EX TEMPORE JUDGMENT

THE DEPUTY BAILIFF:

1.        On 17 April, RR appeared in the Youth Court before the Assistant Magistrate sitting alone, charged with four offences of violence to which we will return, committed between January and April of this year and entered guilty pleas to those four offences.  He was remanded on conditional bail overnight to Support Establishment 1, accommodation provided by the Children's Service in which he ought to have been living under a care order to which we will return.  The condition was that he reside and not leave those premises overnight and the case was adjourned to the following day (yesterday) where the Defendant again reappeared before the Youth Court.  

2.        The Youth Court panel elected to retain jurisdiction of the matter, which we regard as the correct decision having regard to the Youth Court's powers.  The question of bail was contested.  When the matter was considered yesterday the Crown opposed bail but the Youth Panel having heard submissions granted the Defendant bail and the principal conditions of that bail are that the Defendant must live at Support Establishment 1, must comply with a curfew between 8pm and 7am, must not contact the three victims, the subject of the four charges that he has admitted, and may spend the weekends (Friday and Saturday nights) at his mother's home in St Peter observing the same curfew if the Children's Service give consent to the same which they have indicated that they do not.

3.        The Defendant is young.  He was born in 2008 and is thus aged just 15. 

4.        The Crown has appealed, under Article 15 of the Criminal Procedure (Bail) (Jersey) Law 2017 ("the Bail Law") to this Court on the footing that the lower court's decision to grant bail was unreasonable in all the circumstances of the case. 

5.        The Crown draw the Court's attention and rely upon the relevant provisions of the Schedule to the Bail Law and those provisions are, so far as relevant, firstly the Crown say that there are substantial grounds to believe that the Defendant if granted bail would commit further offences.  That is an exception to the right to bail contained in paragraph 1 of Schedule 1 to the Bail Law and the Crown further draw the Court's attention to various relevant considerations when considering such an argument as set out in paragraph 7 to Schedule 1 of the Law in particular in this case the nature and seriousness of the offences and the probable method of dealing with the Defendant in respect of those offences, the character and antecedents of the defendant and the risk that the defendant my engage in conduct that would, or would be likely to, cause physical harm to a person other than the defendant.

6.        Separately and in addition, the Crown rely upon paragraph 5 of Schedule 1 to the Bail Law which provides that "A defendant's right to be granted bail may be denied if a defendant has been convicted of an offence punishable with imprisonment and is awaiting sentence".  The Defendant in this case has pleaded guilty, accordingly is convicted and now that he is aged 15 is of an age where he could be made subject to a sentence of Youth Detention and the Crown say that in the circumstances of this case that is the likely sentence and the Defendant should be denied bail on that ground too.

7.        In terms of the Defendant's character and antecedents we have been provided with a list of his previous convictions.  We are not going to set them all out but in October 2020 he was placed on probation for 6 months for inter alia two offences of grave and criminal assault.  In November 2021, he was placed on probation again for 12 months for a number of offences.  June 2022 he was placed on probation for 6 months for a number of offences including two counts of grave and criminal assault and a count of common assault.  That order was breached in September 2022.  He committed a further offence of common assault dealt with in September 2022 and in November 2022 was placed on probation again for a period of 6 months.

8.        We have been furnished today with the report of the probation officer prepared for a hearing that took place in the Youth Court on 28 March 2023.  None of the persons present at that hearing on 28 March 2023 were aware as we are, apart from of course the Defendant, that two days prior to that hearing he had committed a serious grave and criminal assault to which we will come in due course.  In any event at that hearing on 28 March the Court was furnished with a report from the probation officer indicating that this was the Defendant's fourth breach of a Probation Order since June 2022 and the reasons for his breach were further offending, unacceptable compliance, leaving the island without permission of the Probation Service and a failure to reside at his agreed address, that address being Support Establishment 1.  Support Establishment 1 was where he was supposed to be residing both under a care order made in 2020 and under a Probation Order made in 2022.  He was also required to reside at Support Establishment 1 as a term of police bail but none of these three separate requirements that he reside at Support Establishment 1 had any effect on the Defendant as the report reveals that after the Defendant was released from a seven day period at Support Establishment 2 on 23 December 2022, where he had been placed by the Royal Court for the purpose of a secure accommodation order, he chose to reside at his mother's home. 

9.        The report notes and recalls that the Probation Service has tried multiple ways to engage which RR, both at the office and in the community, however these have been unsuccessful.  To date there have been four office visits arranged, two attempts at meeting with RR in the community and two compliance meetings, all of which RR has refused to attend.  The report indicated he had not attended any form of education since mid-December and prior to that his attendance was 11%.  The officer observed that the Defendant was at very high risk of reconviction during a 12 month period.  The officer's assessment was correct as thirteen days later, in addition to two days prior to this hearing, the Defendant committed another offence of grave and criminal assault.

10.      At paragraph 9 of the report recalls that RR refuses to stay at Support Establishment 1 and is staying with his mother.  As a result he is formally reported missing every night by Support Establishment 1 staff and the report goes on to say, as we have already noted, that a condition of police bail was to reside at Support Establishment 1 and there have been attempts by the Children and Family Service to encourage him back to his placement.

11.      That is the background to the offences for which the Defendant will be sentenced on 30 May 2022 by the Youth Court.  As to those offences the first, an offence of common assault, took place against a 15 year old on 25 January 2023.  A police officer saw the Defendant from McDonald's repeatedly punch another male in the face and the head.  At that stage the Victim did not want to make a complaint.  He did on 14 April when he had been assaulted again in relation to the matter at Count 4.  The Victim said he was with a friend outside McDonald's.  The Defendant approached, punched him to the back of the head, the Victim turned and the Defendant punched him in the face.  The Defendant then punched him again which the Victim dodged and then another punch connected with his mouth causing a cut lip.  The incident lasted 30 seconds and the Victim walked away and said, "wait till I see you again away from the cameras". 

12.      The second assault took place on 28 January 2023.  The Victim was 17 years old and unknown to the Defendant.  The Defendant was looking for someone else and it appears assaulted a total stranger who was waiting for a bus to take him home.  The Defendant approached him and asked if his Christian name was Finn to which the Victim replied yes.  The Defendant dragged him from the bus queue, saying words to the effect of "get out of the CCTV" and we have seen part of the footage which was filmed by one of the Defendant's friends.  It shows the Defendant punching the Victim on this count with substantial force causing the 17 year old to fall onto the ground.  This is followed by the Defendant kicking the Victim hard in the face whilst the Victim was on the ground and his faced covered.  It is right to say that the members of the Court found this footage and the footage of the other incident recorded by mobile phone as quite shocking in their ferocity.  The Victim was fortunate to suffer only a bruised and swollen eye.

13.      The Victim on Count 3 was assaulted by the Defendant on 26 March at 7pm.  He was a 14 year old who was at McDonald's, went outside to check on his bike, was approached by the Defendant who led him to an address on Wesley Street and there in the street the Victim on that charge was assaulted.  He did not know why.  He was hit twenty times; punched to the head, kicked to the ribs, and used his hands and arms to protect himself.  He went back to McDonald's and the staff called an ambulance.  He was x-rayed at hospital and again fortunately only suffered bruising and swelling.

14.      The final offence took place on 10 April at 7pm, the same Victim as at the first charge and this took place in St Helier near Saville Street.  The Victim was confronted by the Defendant, he began to walk away, he was grabbed by the Defendant and then the Defendant delivered, it is said at least 12 kicks and stamps to the Victim's head and upper body and these were when the Victim was on the ground.  He suffered a number of injuries, fortunately none were serious. 

15.      These offences, or at least the last three took place, it appears, whilst the Defendant was on police bail.

16.      It is said today on behalf of the Defendant that the Youth Court were quite entitled to grant bail in these circumstances and that the Defendant would comply with his bail conditions, particularly residing at Support Establishment 1, that he does not wish to spend any more time at Support Establishment 2 owing to the fact that he disliked being there before and it has difficult associations owing to the fact that he and his brother had previously spent time there.  It is said that he spent a week at school before the Easter holidays and wishes to obtain assistance from those who may give him therapeutic input which may address his offending and other behaviours.  He has written to the Court as well and we have read his letter.

17.      It is argued that there is no certainty that he will receive a custodial sentence in due course, and it is said on his behalf, quite rightly, that custody is a last resort for young people.  That is absolutely right as is made clear by the Criminal Justice (Young Offenders)(Jersey) Law 2014 ("the Young Offenders Law"), and we have regard to the terms of that Law and the restrictions in the Young Offenders Law, and in particular the fact that under Article 4 of the Young Offenders Law the Court shall not pass a sentence of youth detention unless either a

"(i) the person has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them or ,

(ii) only a custodial sentence would be adequate to protect the public from serious harm from the person, or

(iii) the offence or the totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified."

18.      Having made those observations we are in no doubt that having regard to the circumstances to which we have referred, the Court is likely to conclude that this Defendant has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them and also likely to conclude that the offence or the totality of the offending is so serious that a non-custodial sentence cannot be justified.  Notwithstanding his age we regard it as likely that the Court at the end of May will impose a sentence of youth custody for up to a period of 12 months.

19.      In respect of the bail address at Support Establishment 1 we have also been assisted by evidence given today by Laura Stark Team Manager for the Children in Care Team.  She was not present in the hearings below because she was unable to be present.  She expressed concern the Defendant would be unable to comply with the condition that he reside at Support Establishment 1 and she also noted that in addition to support the Defendant needs to be aware of the consequences of his offending.  On many occasions the Defendant has been asked to return to Support Establishment 1 and he has simply refused to do so.  It is plain that she has no confidence that he will return to Support Establishment 1 even if this Court regarded that as suitable accommodation for the Defendant at this time - which we do not as it is an insecure place and the Defendant will, as he has in the past, be able to offend and we are satisfied that he would offend, having regard to the circumstances of this case.  We have no doubt that the Crown's additional arguments by reason of which bail should be refused are also made out in this case.

20.      Accordingly, notwithstanding the Defendant's age we are satisfied that he must be remanded in custody pending sentence and we are also satisfied that the Youth Court's decision to admit him to bail was unreasonable in the circumstances of this case.

21.      So the Defendant is remanded in custody and the case is remitted to the Youth Court.

Authorities

Criminal Procedure (Bail) (Jersey) Law 2017.

Criminal Justice (Young Offenders)(Jersey) Law 2014