Jersey Unreported Judgments

Inferior Number Sentencing - ill treatment

[2024]JRC106

Royal Court

(Samedi)

7 May 2024

Before     :

A. R. Binnington, Esq., Commissioner, and Jurats Ronge and Austin-Vautier

The Attorney General

-v-

Joana Da Mata Viana Martins

Sentencing by the Inferior Number of the Royal Court, following conviction at Inferior Number Trial to the following charges:

2 counts of:

Ill treatment, contrary to Article 67(1)(a) of the Capacity and Self-Determination (Jersey) Law 2016 (Count 1 and Count 2).

Age:  42. 

Plea: Not guilty. 

Details of Offence:

At the time of the offences, the Defendant was working as a carer for a local care agency.  She was the team leader in relation to the care of Miss X, an 18-year-old, who lived in her own flat with round the clock daily support from the care agency.  The Defendant was also the Operations Coordinator at the care agency.

 

Miss X has Spastic Diplegia Cerebral Palsy with full body involvement - her legs being more affected than her arms, Epilepsy, a learning difficulty, left sided developmental dysplasia of her hip and reduced visual acuity.  She requires the use of a wheelchair or walker at all times.  Miss X responds well to working in quieter areas with limited distractions and one to one support.  She also requires a significant amount of care to support her with personal care, transport, budgeting and shopping.  In the absence of 24/7 support, Miss X would be at risk of harm.

 

Count 1

On 10 August 2022, the Defendant, who had been called to help a more junior carer, arrived at Miss X's flat.  The Defendant held her hand up to the other carer and went to Miss X who was in the bathroom and told her to "shut the hell up".  The Defendant was screaming and shouting and started to mimic Miss X, who was shouting "please stop".  The Defendant and Miss X were screaming back and forth at each other for approximately half an hour.  Miss X was then in her bedroom getting ready but kept coming out into the kitchen on her electric wheelchair and shouting the Defendant's name.  Each time the Defendant went to Miss X, the shouting started again.  Miss X shouted for her mother.  The Defendant held the door handle to the bedroom, to block Miss X from leaving her room.  Evidence at trial made it clear that carers were not permitted to restrict a client in such a way.

 

The Defendant then removed Miss X's wheelchair from the flat, which caused Miss X to shimmy on her side into the kitchen, whilst crying and urging the Defendant to return her wheelchair.  Carers were not permitted to restrict a client in such a way.  At trial, Miss X's physiotherapist explained how difficult it was for Miss X to move around on the floor due to surgery she had had when she was young.  She explained that Miss X shuffling on her side was not something they would ever encourage.  Miss X crawled back and forth approximately seven times.  On one of these occasions, the Defendant told the other carer to put her foot on Miss X's body and nudge her back into the bedroom.  This made the other carer uncomfortable, and she pretended to do it.

 

The Defendant refused to allow the other carer to help Miss X with her bra.  Miss X was made to do this herself, despite her asking for help and struggling, which she eventually managed.

At trial, the Defenant accepted that she had removed the wheelchair from the flat, but stated that she had done so to take Miss X's focus away from the wheelchair so she could focus on getting dressed.  She also accepted that as a result of this, Miss X crawled or dragged herself on her side from the bedroom to the lounge.  The Defendant denied pushing Miss X with her foot.  She stated that she had to raise her voice to be heard by Miss X.

 

Count 2

On 5 September 2022, Miss X began eating her dinner but said she started to feel sick.  The Defendant told Miss X that women are strong and capable, to see if she would continue eating.  After three or so spoonful's, Miss X began to gag and said she was going to vomit.  The Defendant told her that as a lady she needed to eat properly, with manners, and pressured her to eat.  Miss X began crying and said she wanted to go back to live with her parents.  Miss X continued to gag, but the Defendant threatened to take her to the hospital if she did not eat.  Miss X hated having to go to the hospital and it stressed her.  This threat made Miss X cry, yell, gag more and shout that she did not want to go to hospital.  The Defendant raised her voice.  Eventually, Miss X vomited on her plate.  The Defendant stood up, slammed her hands on the table and said that she would take her to hospital.  Another carer, who was shadowing the Defendant that evening, offered to clean up the vomit, but the Defendant told her that Miss X would clean it herself, as she had done so in the past.

 

At trial, the Defendant accepted that Miss X had vomited, but denied that she put her under pressure to eat whilst she was gagging.  She stated that she was praising Miss X and reminding her of table manners and that she said they would need to go to hospital if she continued to vomit. The Defendant accepted that she told the other carer that Miss X would clean up her vomit, as this had been done in the past.

 

In respect of both allegations, the Defendant stated that the witnesses were lying and that she had made a record of the incidents on the internal logs, but that they were no longer there.  She could not provide a reason as to why they would no longer be there.

Details of Mitigation:

Previous good character supported by an array of character references.  5-year-old son would lose his primary carer.  Defence submitted that the actions were an inappropriate reaction to difficult circumstances.

Previous Convictions:

No previous convictions.

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.

Total:  12 months' imprisonment.

Contribution towards Prosecution costs in sum of £2,500 sought.

No recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	12 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.

Total:  12 months' imprisonment.

No order for contribution towards Prosecution costs made.

No recommendation for deportation made.

L. Sette Esq., Crown Advocate.

Advocate R Tremoceiro for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        Joana Martins you appear before us today to be sentenced in respect of two counts of ill treatment of a person for whom you had care contrary to Article 67(1)(a) of the Capacity and Self-Determination (Jersey) Law 2016.  You were convicted on both counts on 9 February 2024 following a three day Inferior Number Trial.

2.        The Crown Advocate has outlined the details of the offences but in summary the ill treatment included removing the victim's wheelchair and making her crawl around her home, shouting at her, mimicking her and making her eat until she vomited.  During the course of your evidence at trial you stated that the two witnesses to the ill treatment were lying and that the complaints had been made up because you had made a bullying complaint against a senior member of staff.  The guilty verdict makes clear that the evidence of the witnesses was accepted.

3.        We note that given that the statutory offence was first introduced on 1 January 2019, this is the first case of its kind to come before the Royal Court for sentencing.  This case has given us very anxious consideration and we have listened very carefully to the submissions both of the Crown Advocate and your defence counsel.  The only potentially relevant Jersey authority identified by the Crown is AG v Breen [2011] JRC 057 which involved an offence of wilful neglect of a mentally disordered patient under the Mental Health (Jersey) Law 1969.  The Defendant was a live-in carer of an elderly woman suffering from dementia.  The Defendant was contracted to work a three and a half week period and at the end of this period the victim was hospitalised due to severe dehydration and kidney failure.  The Defendant was 46 years old, had no previous convictions, pleaded guilty and had been traumatised by an initial custodial remand and suffered delays in her case.  Notwithstanding that the Defendant's actions were accepted as being reckless she was sentenced to 10 weeks' imprisonment.  The maximum penalty for that offence at the time was a sentence of imprisonment of 6 months'.  The then Deputy Bailiff noted that the Court was of the view that the offence merited a custodial sentence and expressed its view that consideration be given to a very significant increase in the maximum penalty. 

4.        The maximum sentence in respect of the offence that we are now considering is 5 years' imprisonment and a fine.  The equivalent offences in England and Wales carry the same statutory maximum sentences as the Jersey offence but there are no sentencing guidelines for them.  We note that in the absence of offence specific guidelines in England and Wales the Crown has had regard to the overarching principles for sentencing issued by the Sentencing Council which require the Court to assess the culpability of an offender and the degree of harm caused. 

5.        It is clear from the statement made by the victim's parents that the incidents caused her considerable distress.  The parents said that at the time of the incidents she was very distressed and she found it extremely difficult to talk about what had happened without getting very upset.  During conversations with the police she became distressed when trying to explain matters which were clearly difficult for her to put into words and difficult for us as her parents to listen to.  Whenever Miss Martins' name was mentioned she would become anxious and distressed and she would make in very clear that she did not ever want her caring for her again or to even see her again.  She would react whenever her name was mentioned. 

6.        You occupied a senior position within the care agency and the training that you had received should have made it clear that to treat a person under your care in the manner in which you did was wholly unacceptable.  In the course of your evidence you tried to suggest that removing the victim's wheelchair was designed simply to avoid a distraction and to enable the victim to focus on the task of dressing herself.  Even had that been your objective it should have been obvious to you that the consequence of the victim crawling back and forth to her bedroom was out of all proportion to the suggested aim, but nevertheless you allowed it to continue.

7.        As the victim's physiotherapist pointed out during her evidence at trial and as has been noted in the Crown's summary it was difficult for the victim to move around on the floor due to surgery that she had had on her hips when she was young.  The physiotherapist was clear that shuffling on her side was not something they would ever encourage as it was not good for her hips.  We agree with the Crown that your actions were a deliberate disregard for the welfare of the victim at a time when you had a professional responsibility for her.  We conclude that the circumstances of this case would justify a custodial sentence.

8.        Although it is difficult to find cases where the facts are directly comparable the Crown has drawn our attention to a number of English Authorities which may provide some guidance as to sentences that are passed for offences of this type.  In R v Heaney [2011] EWCA Crim 2682 the Defendant was a senior carer for elderly and vulnerable people and one of the victims had dementia and Alzheimer's.  The first offence involved the victim complaining that he did not have enough sugar in his tea resulting in the appellant putting seven spoons of sugar in his tea before getting some vinegar and pouring this into his tea before watching him drink it.  The second offence involved the Defendant approaching a lady in her wheelchair from behind and slapping her across the back of the head for no reason.  The appeal was allowed to the extent that the sentence of 3 months' imprisonment for the first offence and 6 months' imprisonment for the second offence were left to remain but were to be served concurrently.

9.        In R v Strong [2014] EWCA Crim 2744 the Court of Appeal for England and Wales considered an appeal against sentence for a 20 year old who pleaded guilty to three offences under the similar statutory provisions in England and Wales.  The Defendant was described as a very junior employee in a care home specialising in dementia care and her offending predominantly involved her filming or photographing the actions of her co-Defendants which comprised of them looking up the skirt of a 96 year old woman, poking an 84 year old woman repeatedly in the face and leaving a 78 year old sufferer of dementia on the floor.  Noting her limited role in the offending her concurrent sentences of 12 months' imprisonment were reduced to 6 months' imprisonment on appeal.  However, we note in particular the comments made by the Court of Appeal in R v Strong when they said:

"Those who entrust their relatives to professional carers are entitled to know that the courts will do their utmost to protect them."

The Court going on to say:

"that it is necessary to make it clear to some of those who care for vulnerable people that behaviour like this will be severely punished."

10.     Your counsel has produced to the Court a considerable number of references all of which speak highly of you.  Of particular note is one from a client of the care agency referring to you having been part of the care team and later the team lead looking after her mother who suffered from dementia from 2020 to 2022.  She described you as caring with a genuine empathy of her client's needs.  A considerable number of references from former and current employees of the care agency also speak highly of you.  A former HR officer at the Company stated that "Joana was always very caring when it came to the clients she supported often going above and beyond to help them and provide experiences for independent living".

11.     We accept that there was no element of financial gain in this case and we also accept that there was no planning involved.  We agree with Advocate Tremoceiro's comment that your actions were an inappropriate reaction in difficult circumstances.  However forcing the person for whom you were caring to crawl between her bedroom and the kitchen was beyond what was reasonable in the circumstances and as we have mentioned potentially harmful.  Your rationale for the actions that you took were clearly beyond the understanding of a person of the victim's mental ability.  As a team leader you had a duty to be an example to other carers and your conduct on this occasion was far removed from that. 

12.     We note that, relatively speaking, you had limited experience in the care industry and you may well have been promoted beyond the level of your training and experience and that is something of which we would wish your former employers to take careful note.  However, what you did in these circumstances was far removed from treating your client with dignity, humanity and respect at all times.  Instead on this occasion it amounted to ill treatment.  We therefore conclude that a non-custodial sentence would not be appropriate.  As has been said in other cases, those who ill treat residents in care homes are likely to face a severe punishment.

13.     On Count 1 we sentence you to 12 months' imprisonment.  On Count 2 we sentence you to 3 months' imprisonment to run concurrently with the sentence on Count 1, making a total of 12 months.

14.     We do not make a restraining order and we do not make any order for a contribution to the Prosecutions costs.

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

AG v Breen [2011] JRC 057. 

Mental Health (Jersey) Law 1969. 

R v Heaney [2011] EWCA Crim 2682. 

R v Strong [2014] EWCA Crim 2744. 

R v Gower [2022] EWCA Crim 808. 

R v Rawle [2022] EWCA Crim 171

Section 20 of the Criminal Justice and Courts Act 2015

Section 44 of the Mental Capacity Act 2005

Sentencing Council General Guideline: Overarching principles