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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> M v AG [2023] JRC 238 (30 November 2023) URL: http://www.bailii.org/je/cases/UR/2023/2023_238.html Cite as: [2023] JRC 238 |
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Magistrate's Court Appeal against sentence - reasons
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Before : |
Sir Timothy Le Cocq, Bailiff, and Jurats Austin-Vautier and Berry |
M
-v-
The Attorney General
Advocate H. J. Heath for the Appellant.
Advocate L. Sette for the Attorney General.
JUDGMENT
THE BAILIFF:
1. On 7 November 2023, we allowed the appeal of M ("the Appellant") against a sentence imposed upon him by the learned Magistrate on 2 October 2023 of 7 months youth custody, substituting for it a sentence of 110 hours of community service, the equivalent of 5 months youth custody. At that time, we indicated that we would give our reasons on a subsequent occasion. These in brief are those reasons.
2. The Appellant, on 2 October 2023, was sentenced with two co-accused in respect of a single offence of perverting the course of justice on 31 October 2021.
3. The factual basis of that offence, which was serious, was, in general terms, that the Appellant, together with the co-accused, misrepresented what occurred during the course of a grave and criminal assault by suggesting that a person had used a hammer. The Appellant, together with the co-accused, had made statements to that effect, and one of the co-accused had subsequently retracted his statement, with those of the Appellant and the other co-accused being retracted on further interview by the States of Jersey Police. It was accordingly a serious offence.
4. The Appellant was 19 years of age at the time of the offence.
5. The Appellant has a number of previous convictions but, significantly, was sentenced to 200 hours of community service and a Probation Order for 12 months on 20 May 2022. He had also received a sentence of a binding over order, plus compensation, in respect of larceny of a pedal cycle and malicious damage on 21 September 2022.
6. When the learned Magistrate came to consider sentence, the matter was made complicated before her because the Appellant had consistently expressed the view to the officer of the Probation and After Care Service during the course of the preparation of the pre-sentencing report, that he would not be prepared to engage in community service. He understood and accepted that the consequences may very well be a custodial disposal.
7. The pre-sentencing report says, amongst other things:
"[M] is assessed as suitable to engage in a community-based sentence. However, he is unwilling to undergo a further period of Community Service currently. The termination summary from his last period of Probation supervision records that, "[M's] attendance has been acceptable, but there have been periods of time where his attendance has fluctuated with individual appointments, which occurred mainly in the first half of his Order and led to a compliance meeting on 15th November 2022. However, this improved as his Order progressed". Whilst he initially struggled to engage with the group sessions for the Emotional Coping Skills course, he did eventually complete this on a 1:1 basis. Furthermore, [M] presented as polite, cooperative and engaged in work to challenge his thinking about his offending and consequences. The current offence precedes that last period of supervision."
8. It went on to say:
"Although [M] successfully completed 200 hours of Community Service in March 2023, he is reluctant to undertake any further hours as a direct alternative to custody. This has been discussed at length with him, however, he remains unwilling to consent to a further Community Service Order being imposed."
And:
"[M] is aware that given his unwillingness to engage in Community Service, the Court may have no alternative than to impose a custodial sentence. The defendant understands what this would mean and the potential consequences of this, and accepts it is a possibility."
And:
"[M] is before the Court for the offence of perverting the course of justice, in October 2021, which predates his last period of Probation supervision. During this time, he completed a 200-hour Community Service Order to the satisfaction of the Service, and a 12-month Probation Order. He completed all aspects of his plan which focused on supporting his decision-making skills, ability to think consequentially, reducing his impulsivity, drug education and the Emotional Coping Skills Course on a 1:1 basis. Therefore, further supervision is not warranted at this time."
9. Finally, the report concludes:
"Taking all factors into consideration, I am unable to make a firm community-based recommendation at this time. This said, I have asked [M] to further reconsider his position in relation to Community Service prior to sentencing."
10. Notwithstanding the contents of the pre-sentencing report, it is clear that the Appellant did consider his position, and at the sentencing hearing on 28 September 2023, which preceded the handing down of sentence, the Appellant's counsel informed the Magistrate that there had been a "significant change" in the Appellant's position, and she confirmed that the Appellant was now prepared to undertake community service.
11. At no time does it appear from the transcript that the Magistrate challenged the submission of counsel that her client was prepared to undertake community service, nor explored the change of position either with counsel or with the Appellant himself in any manner.
12. The test on appeal from the Magistrate's Court is set out in Loureiro v AG [2015] JRC 154, in which Clyde-Smith, Commissioner, said:
13. The matter was, of course, subject to the Criminal Justice (Young Offenders) (Jersey) Law 2014, Article 4 of which provides:
14. We pause to note that the test under Article 4(2)(b)(i) is conjunctive in that the Magistrate would need to be satisfied that not only has there been a history of failure to respond to non-custodial penalties, but also the defendant before her would be unable or unwilling to respond to them.
15. In her sentence remarks on 2 October 2023, the learned Magistrate dealt with each of the co-accused with her customary thoroughness. She confirmed that she was cognisant of the ages of the co-accused before her, and that she had taken into account the pre-sentence reports and everything that the advocates had said. She confirmed that she was keeping very much in mind the youth of the co-accused before her and, indeed, reflected Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 2014 in her comments, specifically about the co-accused.
16. When she came to sentence the Appellant, she said this:
"[M]....Everything I have said about the seriousness of this perverting the course of justice applies to you, and equally to [N] and [O]. [M], you have had Community Service before, and in my view you are unwilling to respond to non-custodial sentences. That was a non-custodial sentence, a considerable sentence imposed by the Royal Court - 200 hours I think it was in total. The Court had given you a chance there and you did the Order, but there is an expectation that you do not reoffend. This is your chance to keep out of custody, and you didn't; you have reoffended. You did the Order, but you have reoffended and reoffended in a way serious enough for custody. Throughout the Pre-Sentence Report you showed absolutely no remorse whatsoever, and you were absolutely defiant that you would not do Community Service. Then come the hearing your advocate says that of course you'll do Community Service. I don't accept that. You have not shown remorse previously. You have been adamant that you will not do the Community Service, and I deem that you are unwilling to respond to non-custodial options. I also note, as is said in the Pre-Sentence Report, that those offences were drug related and yet, according to the report, you were still taking cocaine and pills. So again your response to a non-custodial sentence is that you do not continue to offence (sic), and therefore it has not had the effect of deterring you from offending. So there will be a custodial sentence for you, and that is seven months' Youth Custody as well."
17. The Appellant and one co-accused were sentenced, as we have indicated, to 7 months youth detention, and the second co-accused was sentenced to community service equivalent to that period, namely 130 hours.
18. In terms of the way that the learned Magistrate dealt with the Appellant, we would make the following observations:
(i) The view expressed by the Magistrate that the Appellant was unwilling to respond to non-custodial sentences was asserted in the face of a submission by defence counsel to the contrary. There was no exploration on the part of the learned Magistrate, either with defence counsel or directly with the accused of the reasons for his change of heart, between the preparation of the pre-sentence report and the sentencing hearing. Before us, defence counsel confirmed that at the time of the preparation of the pre-sentencing report, the Appellant was in a dark place. He had still not fully come to terms with the death of his father and he was feeling hopeless. He had, in the words of defence counsel, "given up on life". It was only on the morning of the sentencing hearing itself that defence counsel had, together with the Appellant's grandfather and brother, spent some time in discussing the matter closely with the Appellant, and the Appellant had, as a result, changed his mind.
(ii) Defence counsel asks when is it too late to have a change of heart and the answer is, of course, it is never too late until the final disposal of the matter by the Court. It is entirely open to the Magistrate to take a cautious view of any late expression of a change of heart, but it was, in our view, in the light of such a submission from counsel, incumbent upon the learned Magistrate to explore with counsel or with the Appellant himself the reasons for such a change.
(iii) Instead, as appears from the remarks above, the learned Magistrate described the Appellant's attitude as defiant and that she did not accept that he was willing to respond to non-custodial options.
(iv) Furthermore, in her sentencing remarks, the learned Magistrate clearly was troubled by the fact that the Appellant had re-offended and "re-offending in a way serious enough for custody" which can only, in our view, be a reference to the matter then before her. This it seems to us was based on a misunderstanding. The offending for which the Appellant was to be sentenced had, of course, taken place before the imposition of the last community service order. It appears that the Magistrate at that moment operated on the assumption that the Appellant had committed the serious offence before her after the Probation Order had been imposed and accordingly had shown himself to be incapable of responding to a non-custodial disposal. This was an error of fact and, in our view, must inevitably have undermined the conclusion of the learned Magistrate given the prominence of the point made in her sentencing remarks.
(v) Finally, it does not appear to us that the learned Magistrate gave weight, or sufficient weight, to the fact that the Applicant had already successfully completed a significant period of community service in the circumstances set out in the pre-sentencing report extracts mentioned above.
19. In our judgment, and in the light of those observations, it seems to us that the learned Magistrate proceeded on a mistaken appreciation of the material facts. In the absence of testing the Appellant's apparent change of heart, the Magistrate should, in our view, have proceeded on the basis that he was willing to undertake community service, and not that the re-offending before her had taken place after the completion of the last period of community service. Accordingly, in our judgment, there was no sufficient basis to find that the Appellant in this matter had a history of failure to respond to non-custodial penalties and was unable or unwilling to respond to them. As this was the basis on which the learned Magistrate disapplied the non-custodial presumption contained in Article 4(2) of the Criminal Justice (Youth Offenders) (Jersey) Law 2014, we think that the sentence imposed was unsound.
20. The Appellant has already served a period of two months youth detention.
21. It is for those reasons that we overturned the sentence of youth detention and substituted for it a period of community service which is the equivalent of five months making allowance, as we did, for the period already served.
