Jersey Unreported Judgments

[2010]JRC071

ROYAL COURT

(Samedi Division)

7^th April 2010

Before     :

W. J. Bailhache, Q. C., Deputy Bailiff, and Jurats Le Breton and Le Cornu.

The Attorney General

-v-

M

C

S

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

M

First Indictment

1 count of:

Robbery (Count 1).

Age:  20.  The only reason M is not named is to protect the identity of the 2 underage defendants.

Plea: Guilty.

Details of Offence:

All three defendants charged jointly with the offence of robbery albeit on 2 separate Indictments.  The victim being a relative newcomer to the Island approached M and S in the early hours of the morning and asked if they knew where he could get some food.  They told him he could get food at the "Bakery" and offered to take him there.  There were a number of juvenile females with the group.  They were joined by C.  The three defendants led the victim into Bath Street end of Gas Place Car Park where without warning M punched the victim once to the face.  Once on the ground the victim alleged he was kicked to the chest area by S.  He got to his feet and was punched to the right side of the face by C.  He ran down the car park but was chased by C and S.  They confronted him and on their demand handed over his wallet from which was taken £200.  S suggested taking a mobile phone but C told him not to.  S was given £5 and the other monies were retained by M/C.  The victim sustained minor injuries, some of his clothing ripped.  Some psychological after effects in consequence.  (Count 1). 

None of the defendants were particularly co-operative in interview but all eventually made some admissions and in particular M and C admitted their involvement.  S eventually admitted being present but denied any involvement in the offence.  Subsequently on Indictment admitted being present and participated, but only to the extent of suggesting taking the wallet but denied kicking the victim.  The Crown was minded to pursue the matter to a Newton hearing but following legal argument was directed not to pursue it as given his young age would not have impact on sentencing.  S was aged 14 at the time of the offence.  The provisions of Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 were applicable to C and S in terms of restrictions on the Court's sentencing powers. 

Counts 2 and 3

Claims of breaking and entry were made to police and when attended found C and two other males in the vicinity matching descriptions.  C approached but resisted arrest (Count 2).  When searched was found to be in possession of a small piece of cannabis worth approximately £5 (Count 3). 

S

He was seen on CCTV stealing a bottle of Vodka worth £7.99 from the Co-operative Store at Grand Marche.  He made admissions but bottle not recovered. 

S in breach of Probation Order imposed by the Royal Court, (AG-v-CB, CS, GS and RR [2008] JRC 131).  The robbery offence also committed whilst on bail for larceny offence. 

Details of Mitigation:

The Crown

M admitted committing offence after consuming a quantity of alcohol.  Aggravating factor; put forward different reasons for committing offence.  Youth aged 20.  Appalling record with 14 convictions for a total of 44 offences.  Breach of probation previously.  The Crown contended that all three elements of Article 4(2) of the Law were applicable.  Only proper sentence youth detention.  Mitigating factors of guilty plea and youth.  Not co-operative but had given a statement and evidence against co-accused against S at the old style proceedings.  Categorised as high likelihood of re-offending. 

Defence

Accepted that alcohol was aggravating factor.  Accept the decision made was to rob the victim but could not remember how it came about.  Involvement limited to one punch.  Expressed regret and apologised.  Accepted responsibility for his actions.  Guilty plea, youth and difficult background.  Poor record.  He was committed to stay away from alcohol.  Suggested non-custodial options applicable.  Issue of delay raised. 

Previous Convictions:

14 convictions for a total of 44 offences including grave and criminal assault, common assault, malicious damage, possession of offensive weapon, larceny, motoring and public order. 

Conclusions:

First Indictment

Count 1:

2 years' youth detention.

Sentence and Observations of Court:

The three youths appeared for sentencing for the serious offence of robbery.  The Court quoted from the case of Gill-v-AG [1999[ JLR N 18c:- "Those who commit violent robbery in Jersey must expect to receive severe punishment....Violence of this kind will not be tolerated and will not be tolerated by the Courts of Jersey".

This robbery was planned at least 10 minutes or so beforehand and, therefore, the defendants had the opportunity of withdrawal.  It was exceedingly frightening for the victim being set upon by three youths, fortunately injuries relatively minor but the Court had noted the content of the victim personal statement and there were significant psychological effects with the victim not being out socially due to his mistrust of other people.  The Court did not know if any of the females present had been involved but if any of them were in Court today and they had offered encouragement then those females are exceptionally lucky not to have been prosecuted as well.  The Court dealt with each defendant in turn:-

The Court had given careful consideration to all of the available mitigation.  The Court noted his relatively young age, guilty plea and all matters mentioned.  The Court was prepared to accept that there was remorse.  Used his time in prison constructively.  The Court did not consider any other sentencing option available other than youth detention.  Robbery was a serious offence. 

First Indictment

Count 1:

2 years' youth detention.

C

First Indictment

1 count of:	Robbery (Count 1).
1 count of:	Resisting a police officer in the execution of his duty (Count 2).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  17.

Plea: Guilty.

Details of Offence:

As M above.

Details of Mitigation:

The Crown

Intoxicated when committed offence - aggravating factor.  Guilty plea and youth, aged 17.  Not of good character.  Eventually co-operated in interview and gave a statement against co-accused at "old style" committal proceedings.  Gave evidence on that occasion.  Poor record of compliance with non-custodial sentences previously imposed upon him.  Issues to be resolved by him.  The Crown contended that all three elements of Article 4(2) of the Law were applicable.  He was 16 when committed the offence and 17 at entering guilty plea.  The Crown contended that sentencing powers, therefore, limited by the provisions of Article 4(5) and therefore, any sentence could not exceed 12 months. 

Defence

Issue of delay raised.  He had met the victim.  Had agreed to go along with the mugging.  Three young girls also present and impression formed that they were encouraging

Previous Convictions:

5 convictions for 17 offences including grave and criminal assault, common assault, assault on police and resisting arrest, possession of offensive weapon and shoplifting.

Conclusions:

First Indictment

Count 1:	2 years' youth detention reduced to 12 months by virtue of Article 4(5) of the 1994 Law, the remaining 12 months being remitted.
Count 2:	2 weeks' youth detention, concurrent.
Count 3:	1 week's youth detention, concurrent.

Total:  12 month's youth detention.

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

See M above.

C was a young person who crossed over the age threshold.  Now 17 but 16 at the time of the offence.  The Court did not share the view of the Crown of that 12 months was available to the Court but Court did accept that on the authorities it should sentence as if he had been 16 years.  Need to address his behaviour and in particular his alcohol abuse.  Using time constructively whilst in custody.  The Court placed reliance on his supervision by probation whilst on licence.  If he breaches his young offenders licence then he could be fined or sent to prison for 30 days.  The Court's expressed the wish of not wanting to see him back before it. 

First Indictment

Count 1:	12 months' youth detention.
Count 2:	2 weeks' youth detention, concurrent.
Count 3:	1 week's youth detention, concurrent.

Total:  12 months' youth detention (under licence of supervision on release).

Forfeiture and destruction of drugs ordered. 

The Court noted that in arriving at the sentence it had given due weight to all of the relevant factors that were to his credit such as youth, guilty plea, and the giving of evidence against the co-accused. 

S

Second Indictment

1 count of:	Robbery (Count 1).
1 count of:	Larceny (Count 2).

Breach of Probation Order imposed by the Royal Court on 13^th August, 2008.

Age:  15.

Plea: Guilty.

Details of Offence:

As M above.

Details of Mitigation:

The Crown

Guilty plea and youth, 14 at the time of the offence, 15 on Indictment and at sentencing.  Given age sentencing options limited.  Sentence on his factual basis.  Involvement minimal.  Offence committed whilst still subject to a Royal Court Probation Order and also in breach of bail granted that day to him for a larceny offence.  Did not have the benefit of good character.  Background reports revealed a troubled upbringing.  Reports revealed a marked change in his attitude since placed in custody. 

Defence

Mitigation for guilty plea and age.  Apology to Court.  Had been at Greenfields on remand.  Curfew had assisted him.  Had been under full care since 2001.  SER report recommendations endorsed.  The Court questioned what a 14/15 year old was doing out at that time of night. 

Previous Convictions:

4 convictions for 16 offences including common assault, supply a controlled drug, larceny, illegal entry, malicious damage and motoring. 

Conclusions:

Second Indictment

Count 1:	12 months' Probation Order.
Count 2:	No separate penalty.

Breach of Probation Order - No separate penalty.

Total:  12 month's Probation Order.

Sentence and Observations of Court:

See M above.

Sentence to be imposed was a 12 months' Probation Order with a condition of a 9pm to 8am curfew every night of the week.  It will be a matter for the probation officer to decide whether and exceptions to that curfew should be made.  The Court expects the probation service to know where S is and how long he is going to be and how he is returning etc.  It is unacceptable for a 14 year old to be running around the streets of St Helier at night and the same comment applied to a 15 year old.  The curfew was imposed for his own benefit.  The Court expected a co-ordinated approach to be taken.  He should consider himself lucky because of his age.  This was the only reason he was not receiving a custodial sentence.  He was given a stern warning as to his future conduct.  He would not beat the system.  He was exceedingly lucky because of his age but if he appeared before the Court again then there is every likelihood that he would be sent to youth custody.  He was being given a chance.  He would not be so fortunate if he were to re-offend. 

Second Indictment

Count 1:	12 months' Probation Order.
Count 2:	No separate penalty.

Breach of Probation Order - No separate penalty.

Total:  12 months' Probation Order, plus curfew from 9pm to 8am.

J. C. Gollop, Esq., Crown Advocate.

Advocate M. W. Cook for M.

Advocate S. A. Pearmain for C.

Advocate J. W. R. Bell for S.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The serious offence for which you three come to be sentenced today is that of robbery.  In the case of Gill-v-AG 1999/160, which was in the Jersey Court of Appeal in 1999, (and the same principles apply today), said this :-

"Whether the robbery was premeditated or not, and whether it was committed under the influence of alcohol or not, are questions of little significance, in the light of the simple fact that the violence committed in the course of the robbery involved putting, (in that case) the young cashier in such fear.

No community can tolerate violent robberies of this kind, and any person who commits such a violent robbery in Jersey, whatever may be the circumstances of the robber, must expect to receive severe punishment by a long prison sentence.

In cases of violence, whether of assault or robbery or rape or other forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence, not to deter the offender because it is too late to do that, but, to deter others who may be tempted to engage in similar violence, and to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey."

2.        This robbery was planned over a period of about ten minutes so, there was opportunity for each of you to withdraw from this plan, however late, in the case of S, you may have joined it.  It was extremely frightening for the victim, set upon as he was by three young men.  The injuries could have been more serious than they were but fortunately were relatively minor.  However the Court has received a victim personal statement which makes it plain that the psychological impact of this robbery on the victim has been significant.  He says he has not been out since the incident and his interaction with other people, the way he reacts to other people, is now marked by his distrust of them and his fear of what is going to happen. 

3.        There is another factor which I mention here.  The Court does not know whether any of the juvenile females present at the time knew of the plans or indeed are in Court.  But if they are present in Court they should be aware that at least some of the fear which the victim has experienced will have been caused by feeling that a mob was after him, albeit only three people were engaged in that robbery.  There is certainly no indication, from what we have been told, that any of these females tried to dissuade the accused from their chosen course of action, and indeed, from what we have heard from Advocate Pearmain, the reverse might have been true and they might have been encouraging it.  We take the opportunity of saying that if such encouragement were to have taken place it is absolutely to be deprecated and such females are frankly lucky, that they have not been prosecuted for being complicit in the robbery which has taken place and having to be sentenced before this Court themselves. 

4.        M, the Court has given very careful consideration to the mitigation which has been mentioned by your Counsel in what was an attractive address to us, and we have examined very carefully the options of probation, of community service and treatment orders.  In particular we have taken account of your relatively young age, 20; we have taken account of your guilty plea and indeed, all the matters which your Counsel have mentioned, and the case has caused us some anxiety.  The Court appreciates and accepts your expressions of regret and your remorse.  However, we cannot ignore the fact that robbery is a very serious offence for the reasons that are set out in that extract from the Court of Appeal judgment which I have just read out.  We think you have gained considerably from the help which you have been offered in detention so far, and we hope that will continue and that you will continue to use that constructively for the rest of the time which you will spend in detention.  We take the view that to impose anything other than youth detention would not take proper account of the effect of this offence on the victim and we are sure you will come to accept that eventually, even if you feel disappointed now and not able to accept it at the moment. 

5.        The sentence of this Court is that you are to serve 2 years' youth detention for the offence of robbery which you have committed.

6.        C, you fall to be sentenced as a young person who crosses the age threshold in the Criminal Justice (Young Offenders)(Jersey) Law 1994 in the sense that although you are now seventeen you were sixteen at the time of these offences.  We do not share the view expressed by the Crown that there is any automatic remission of a sentence in excess of 12 months' youth detention, which would be the maximum which the law would allow us to impose if you were still only sixteen.  But on the other hand we do accept the rest of the authority which has been shown to us by Crown Counsel that we should sentence you as if you were sixteen and that is what we are going to do today.  That is the only reason that we are going to impose a sentence of 12 months' youth detention and not more in this particular case.  You need to address your behaviour and you need to address your drinking.  The Court thinks that you will have gained assistance from the time you have had in custody and we also of course, are placing some reliance on the fact that when you are released from youth detention you will be under supervision by the probation service.  I would like to remind you of what that means; as a young offender you will be on a licence and as a condition, be under supervision by the probation service.  Whilst on licence, further efforts can and will be made to look at your offending and at the risk factors and once again, to endeavour to address these.  Breach of a young offenders institution licence is an offence punishable by a fine or custodial sentence of up to 30 days, so you will be required to work with the probation service and we certainly do not want to see you back in this Court for breach of the supervision which you will have at the end of serving the Youth Detention Order that is being imposed. 

7.        We therefore impose in relation to the offence of robbery, 12 months' youth detention.  In relation to the offence of refusing to obey a police officer, 2 weeks' youth detention, concurrent and in relation to the possession of cannabis, 1 week's youth detention, concurrent. 

8.        We order the forfeiture and destruction of the drugs. 

9.        We have taken into account in imposing that sentence all the factors which go to your credit that your Counsel has mentioned in her address to us, in particular, of course, your youth, which I have mentioned already and your guilty plea and the fact that you have given evidence on committal as indeed M did in relation to the charges against your co-accused S. 

10.      S, we are going to impose upon you what is probably the only sensible sentence that can be imposed, given your age, which is that of 12 months' probation.  We add to it a condition that you will have to obey, as a condition of the Probation Order, a curfew from 9pm to 8am every night, whether with your mother or at La Preference or wherever else you may be.  The probation officer has discretion to release this condition for specific evenings but we expect him to know where you will be and for how long, before that discretion is exercised.  We hope these comments will be passed back to the child welfare officer so that a co-ordinated approach can be taken to your welfare.  The Court thinks that it is completely unacceptable for a fourteen year old to be roaming the streets of St Helier late at night and it is no better at the age of fifteen.  You are at risk for yourself and it is clear from this offence, that you are a risk for others.  The condition that we impose to your Probation Order is imposed for your own benefit.  If you breach the conditions of the Probation Order you are liable to be brought back to this Court. 

11.      Now I want you to come forward, come right forward to the Court.  You have been extraordinarily lucky, lucky because of your age and that is the only reason.  There are many things in your background which are unlucky, the Court realises that and appreciates that but nonetheless, you are lucky because of your participation in this robbery and the way in which you are being treated.  I want you to realise that nobody beats the system, what I am about to say to you actually is equally applicable to you two as well, it is just not convenient to have you right up in front of me.  

12.      Nobody will beat the system; it is the job of the police officers to ensure that the law is kept; it is the job of the lawyers to make sure that when the law is broken people are brought before the Courts; it is the job of the Courts to ensure that appropriate sentences are handed down.  You have a choice in your life, as you all do in your lives, you have a choice as to whether you continue this line of offending, in which case you will spend most of your life in custody without the freedom and the responsibility that goes with behaving properly.  Nobody else can make that choice but you; it is no good blaming anyone else, only you can do this.  As I said you are very lucky on this occasion because of your age.  The offence which you have committed would normally lead to a sentence of youth detention but that is not open to this Court because of your age.  It will not be the same if you were to re-offend and you should be aware of that.  It is your choice. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Gill-v-AG 1999/160.

AG-v-CB, CS, GS and RR [2008] JRC 131.