Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - carrying a firearm with criminal intent.

[2013]JRC118

Royal Court

(Samedi)

19 June 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Kerley and Milner.

The Attorney General

-v-

Sebastian Gasulla-Sole

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

2 counts of:	Grave and criminal assault (Counts 1 and 2).
1 count of:	Carrying a firearm with criminal intent, contrary to Article 40 of the Firearms (Jersey) Law 2000 (Count 3).

Age:  28.

Plea: Guilty.

Details of Offence:

Two teenagers from a group congregated in gardens at Mount Bingham went to investigate the lone figure of Gasulla-Sole, in camouflage fatigues and cap, standing near a flagpole opposite the Territorial Army centre around 10pm one Saturday night in February.  They saw he was carrying a rifle, and he said he was guarding the TA and that they should be careful or may be shot.  The teenagers spoke to others at the scene and others approached Gasulla-Sole to see if what they had been told was true.  As they did so he pointed a rifle at two of them (Counts 1 and 2) and said, "Do not come any closer or I will shoot you."  The boys were frightened for their own safety and that of their friends, grabbed the rifle and tackled Gasulla-Sole to the ground where he was restrained.  It was only after this they realised it was not a real gun.  A further gas powered BB hand gun was found in his rucksack. 

A firearms expert subsequently described the imitation firearm, a BB-type ASG bolt-action sniper rifle, as being very accurate in design and easily mistaken for a real rifle even by a firearms officer, without close hands-on inspection. 

Gasulla-Sole claimed that he had gone to the reclamation site to shoot rats, and denied that he was "playing at soldiers".  He said that he was the victim of an unprovoked attack, suggesting the youths had conspired to make him out as the aggressor.  Poor record and was receiving professional help from a number of agencies, as well as support and advice from family members. 

Details of Mitigation:

Guilty plea; psychological and psychiatric issues. 

Previous Convictions:

Poor record including assaults, grave and criminal assaults and in 2004 a bomb hoax.  In 2005 he was convicted of possession of an offensive weapon, a BB gun which was confiscated.  Had not offended since 2006, although he was not at liberty in the Island until his return from England in January 2012. 

Conclusions:

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

Total: 12 months' imprisonment.

Forfeiture and destruction of the replica weapons sought.

Sentence and Observations of Court:

The learned Bailiff had indicated the Court's view that the Crown's conclusions were too low and a sentence of 18 months' imprisonment would normally be appropriate.  In light of the unique features of the case sentence was adjourned to allow the Probation Department to put a suitable support package in place.  When the case returned to Court a non-custodial sentence was imposed. 

Count 1:	2 years' Probation Order with a condition that the defendant does not own any replica firearms, BB guns or deactivated firearms.
Count 2:	2 years' Probation Order, concurrent.
Count 3:	2 years' Probation Order, concurrent.

Total: 2 years' Probation Order with a condition that the defendant does not own any replica firearms, BB guns or deactivated firearms.

Forfeiture and destruction of the replica weapons ordered.

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

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This must have been a very frightening incident.  You were dressed in a camouflage jacket and you were holding what appeared to be a rifle, which you pointed at the two boys.  You threatened them by shouting that if they came any closer you would shoot.  It was very brave of them to nevertheless tackle you and restrain you until the police arrived.  We do, however, accept that it was a spur of the moment thing; you were just going out, perhaps following your idea of being a member of the army.  You did not intend to frighten anyone and you were responding to what you perceived as a threat from the advancing boys, even though it is accepted there was in fact no threat.  We accept that the rifle was not a real rifle, it was a "BB" gun, but it looked very realistic and the gravity of this type of offence in relation to imitation fire arms is that they involve putting people in fear for their lives because they think they are being faced with someone holding a real gun, who might shoot them.  That is why sentences for offences of carrying imitation fire arms are severe.  

2.        We have been referred to a number of English cases and in at least one of them a sentence of up to 5 years' imprisonment following a guilty plea was upheld, although the facts of that case were more serious than this one.  In general a prison sentence is the right sentence for this type of offence; and indeed, for the facts of this one, one would have thought that something of the region of 18 months would have been more appropriate. 

3.        But there is a very unusual background to this case.  You have of course pleaded guilty, but the real mitigation in this case is your difficult mental health background.  You have spent 5½ years in England under the Mental Health Act 1983 at Northgate Hospital, where you were receiving concentrated treatment.  You came back to the Island about a year ago and since then you have made real efforts to turn things around and until this offence you had not committed any further offences despite your long record before then.  We have read the references and we have read, carefully all of the reports; that is the probation report, the psychological report and the psychiatric report.  The recommendation from the probation service is for a probation order but with a strong package of support measures. 

4.        Now, as I say, the normal sentence for this offence would be prison, but we have been persuaded that in the very unusual circumstances of your case, that would not be the right sentence.  And we say that really because of your mental health background.  You have served the equivalent of 6 months' imprisonment already; so you have been punished and if we granted the Crown's conclusions you would serve just another 15 weeks and then come out without the necessary support measures.  We think the best chance for society, and the best chance of your not reoffending, is to accept the recommendation and place you on probation for 2 years with the various support measures to be put in place.  We acknowledge, as the probation office says, that this is high-risk, but we think that, although it is in your best interests, more importantly it is in society's best interests, in that it offers the best hope of continuing the progress you have been showing recently. 

5.        So our view, after thinking about it carefully, is that this is such an unusual case that we will not, as would normally be the case, impose a prison sentence, but we will impose a probation order, unaccompanied by community service as we think we need to give you the best chance of succeeding. 

6.        We are not formally going to pass sentence today because the probation service wants to ensure that it has the support measures in place when you come out and those would not be in place today.  So, having heard from the probation officer, we are going to adjourn our decision until Friday 5^th July, 2013, and we are going to remand you in custody pending that.  On that occasion we will, absent some extraordinary change of circumstance which we cannot foresee, impose the sentence we have just described, in other words the probation order.  So you will have a chance to prepare for it, as will the probation service and all the other agencies. 

7.        Our formal decision therefore today is to adjourn sentence.  It may not be possible to have the same Court but we will get this judgment typed and would expect our order to be then enacted by whichever Court is sitting. 

8.        We would make an order for forfeiture and destruction of the replica weapon. 

Authorities

Mental Health Act 1983.

Firearms (Jersey) Law 2000.

Harrison-v-AG [2004] JCA 046.

AG-v-Gasulla-Sole and Ors [2004] JRC 120.

AG-v-Capuano [2003] JRC 211.