AG v Cox 06-Sep-2019 [2019] JRC 172 (06 September 2019)

JUDGMENT THE COMMISSIONER: 1. The defendant stands to be sentenced for two counts of carrying an offensive weapon, one count of attempted robbery and one count of possession of a small quantity of diazepam.

2. The defendant has a long history of drug and alcohol abuse. On Saturday 25 th April, 2019, his behaviour first inside and then outside Le Quesne's chemist made the staff nervous and the police were called. When the police found the defendant he had white foam at the corners of his mouth which is indicative of drug use, and was found to be in possession of a 10 to 12 inch knife which he said he carried for his safety because of recent threats. Two days later on 27 th April, 2019, the defendant entered Reid's Pharmacy wearing a dark hoody pulled up over his head and a scarf covering his nose and mouth. He went straight behind the counter holding his arms to his waist as if he was trying to hide something. He came within a metre of a female member of staff. He opened up the front of his hoody and pulled out the knife which is about 5 to 6 inches in length which he pointed towards her and said " I don't want trouble but I want benzodiazepines". She recognised the defendant and said to him " you don't want to do this you have two young children". She asked what he wanted and he said he wanted " fentanyl, lovazepam and bendodiazipines". She asked him to think about what he was doing at which point he said " promise not to call the police and I will leave". She agreed and he left. The member of staff was seen to be shaking, stuttering and mumbling. She honestly thought he could stab her if he needed to.

3. The defendant has an extensive, mainly drug related record, but no previous convictions for violence related offences. Prior to these offences, and as a result of his drug use, his unsupervised contact with his children had stopped and he had lost his relationship with his girlfriend, his accommodation and his job. He had been 'sofa surfing' in the days prior to his arrest.

4. He is assessed at a very high risk of reconviction. Dr Boucher, the psychologist, says in her report that " he currently meets the diagnostic criteria for Anti-Social Personality Disorder as well as having significant difficulties with Drug Dependency. She said "He also presents with traits of Depressive and Borderline personality disorder and symptoms of depression , though not to a diagnostic level" .

5. In terms of the most serious offence, the attempted robbery, the Crown seek a sentence of 4 years, having referred the Court to the case of AG v Hunt [2014] JRC 125 which identified a sentencing band of 18 months to 5½ years' imprisonment for robbery, and to the judgment in Gill v AG 1999/160 in which the Court of Appeal said this: "The starting point for this Court is that the robbery in this case was a particularly serious one. A dangerous knife was put at the throat of the young cashier and he was placed in fear of his life or of serious injury. 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 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 (1) to deter others who may be tempted to engage in similar

violence, and to remind them that if they do so they will similarly face long sentences of imprisonment; (2) to show to a community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey." In that case the Court of Appeal upheld a sentence of 4 years, but commented that it was doubtful whether leave would have been given if the sentence had been 5 years.

6. In his letter to us the defendant explains that on the day of the attempted robbery he was feeling suicidal and was not in his right mind. He wanted to end his life and not to scare anyone. However, as the Court pointed out in AG v Hunt a person in a position of the member of staff at the pharmacy would have no idea that the defendant did not intend to scare her. The fact of the use of a knife constitutes the threat and gives rise to the fear, as the member of staff makes so clear in her impact statement.

7. In terms of mitigation we have listened carefully to everything put forward by Advocate Dale. The defendant has pleaded guilty and has shown remorse which we accept is genuine. As Dr Boucher says, if he is to continue with this substance misuse his lifestyle will continue to be chaotic, and meaningful engagement in psychological therapy difficult. He has completed several periods of detoxification through the Alcohol and Drug Services including a successful drug rehabilitation this year at Silkworth Lodge, but on all occasions he has returned to using illicit drugs. He has told the Probation Office that if he is not prescribed Subutex or Suboxone when back in the community, which is unlikely, he will seek it out illicitly. We are told he will be offered relapse prevention which could be undertaken in prison and when back in the community.

8. Dr Boucher advises that if he can address substance misuse whilst in prison, this might provide a degree of stabilisation and allow psychological intervention, if he can be supported in the community, with a holistic approach to his care.

9. In conclusion, as the Court of Appeal has made clear, despite the circumstances of the defendant, he must expect severe punishment by a long prison sentence for a violent attempted robbery of this kind which placed the member of staff at the pharmacy and indeed other members of staff present in such fear.

10. In our view the Conclusions of the Crown are correct.

11. In relation to Count 1 you are sentenced to 12 months' imprisonment; Count 2, to 4 years' imprisonment, concurrent; Count 3, 18 months' imprisonment, concurrent; Count 4, 2 weeks imprisonment, concurrent making a total of 4 years' imprisonment.

12. It is clear that the defendant needs assistance whilst in prison to address his substance misuse problems, so as to try and achieve the stabilisation referred to by Dr Boucher and it is of concern to the Court to be informed by the Defence that currently access to assistance from Alcohol and Drug Service at the prison may not be available.

13. In terms of the remaining orders that we make we order the forfeiture and destruction of the 5 diazepam tablets and the knife seized from the defendant.

14. We make the restraining order sought by the Crown which is in these terms, that the defendant be prohibited from approaching or contacting directly or indirectly the victim other than any contact which is inadvertent or unavoidable, and other than as managed by the Jersey Probation and Aftercare Service for the purposes of restorative justice. That order shall remain in force for a period of 7 years.

15. We authorise the disclosure of the psychological report to the prison service. Authorities AG v Hunt [2014] JRC 125 . Gill v AG 1999/160. AG v Whiteley 1998/126. AG v Hare [2008] JRC 168 . AG v Gomes [2013] JRC 020 . AG v Dzielak [2017] JRC 078 . Page Last Updated: 25 Sep 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII