B v AG [2002] UR 232 (06 November 2002)

JUDGMENT THE BAILIFF: 1. This appeal is brought by 'B', who was born on 28 th July, 1987 and is, therefore, aged 15. 'B' appeared before the Youth Court on 31 st October 2002 when she pleaded guilty to having broken and entered premises and stolen alcohol to the value of £132. As a result of that offence she was in breach of a Probation Order which had been imposed for a number of earlier offences. B was remanded till 6 th November for sentencing. On that day she appeared and was represented by counsel. She was sentenced by the Youth Court to five months' Youth Detention, made up of four months in respect of the offences for which she was in breach of probation and one month, consecutive, for the breaking and entering and larceny. 2. On 11 th November she gave notice of appeal, On 20 th November she again appeared before the Youth Court and, after pleading guilty to a charge of stealing a mobile telephone, was sentenced by the Youth Court, presided over by the Assistant Magistrate, to a further two weeks' Youth Detention, consecutive to the sentence imposed on th November. It is to be noted that that offence had been committed prior to her being sentenced on the 6 th November. 3. Counsel put forward a number of grounds of appeal in support of her contention that the sentence of 5 ½ months' Youth Detention was manifestly excessive. First, counsel complained that B felt aggrieved by remarks made by the Magistrate on 6 th November. The Magistrate said, at the opening of the hearing: "I think we have got to take the view as to whether or not we are going to attempt to sentence her this afternoon. I suppose we really ought to do so, whether or not we have had a chance to prepare properly. The alternative is that we are going to remand on to another date but we are already jammed up next week." 4. Counsel submitted that this gave the appellant the impression that the Court was pressed and had not given proper consideration to her case. We do not think that there is any force in this contention. It is clear from the transcripts that the Court gave very careful consideration to all the matters that were placed before it and took the opportunity to retire in order to read all the reports which were made available to it. Even if the Court was not prepared at the beginning of the hearing, there is no doubt, in our judgment, that the Court was fully informed at the conclusion of the hearing when sentence was imposed. 5. Secondly, counsel submitted that the educational and other facilities available at La Moye, where B is currently detained, are inadequate. We will not say more on this subject other than that the facilities for young female offenders at La Moye are clearly wholly inadequate and we express the hope that urgent attention be given to the problem by the relevant authorities. It is a factor to which we have had regard in arriving at the conclusion which we will announce. 6. Thirdly, counsel submitted that up-to-date reports were not available to the Youth Court when sentence was imposed. The facts appear to be that the Youth Court had available to it a Community Service report dated 4 th November, a Drug and Alcohol Service report dated 8 th October, a Social Enquiry report dated the 4 th October and a report from the consultant psychologist dated 7 th October. The Court also had available to it a report from the principal of Les Chênes Residential School, again dated early in October. 7. It might, perhaps, in the view of this Court, have been preferable for the Youth Court to have obtained a stand down report from the Probation Officer, but nothing has been said to us during this hearing to persuade us that any additional information might have been made available to the Youth Court which might have affected their decision. Counsel suggested that the Court was unaware of developments in relation to B's grandmother but the information that B's grandmother had returned to the island, and that some positive influence might be brought to bear by her, was available in the report of the principal of Les Chênes. 8. Fourthly, counsel submitted that the Youth Court did not comply with the provisions of Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 1994 . Article 4 of the Law provides, at paragraph 2: "A court shall not pass a sentence of Youth Detention unless it considers that no other method of dealing with him/her is appropriate because it appears to the Court that: (a) he/she has a history of failure to respond to non custodial penalties and is unable or unwilling to respond to them, or; (b) only a custodial sentence would be adequate to protect the public from serious harm from him/her, or; (c) the offence or the totality of the offending is so serious that a non custodial sentence cannot be justified. and the court shall state in open court its reasons for imposing a sentence of Youth Detention and shall explain to the person that on his/her release he/she may be subject to a period of supervision in accordance with Article 10." 9. At the material stage of proceedings in the Youth Court the following exchange took place: Judge Le Marquand: "We think we have run out of options, frankly." Advocate Preston: "I think it is accepted, sir, that a custodial sentence is inevitable in the circumstances. B accepts that." Judge Le Marquand: "Yes, I think that must be right and it is also probably the best way of protecting her." Advocate Preston: "Indeed sir." 10. The purpose of Article 4 of the Criminal Justice (Young Offenders) (Jersey) Law 1994 is to ensure that the sentencing court does focus upon the issue of whether a non-custodial option is appropriate and, if not, its reasons for imposing a sentence of Youth Detention. It may well be that the Youth Court, in this case, did focus upon its reasons but it is unfortunate that it did not say so expressly. Sub paragraphs (b) and (c) of Article 4(2) did not, in our judgment, apply in the circumstances of this young offender, but equally clearly sub paragraph (a) did apply. 11. Even if one restricts oneself to the events which have taken place during this year, 2002, B has breached her probation orders on no fewer than five different occasions. There is no doubt that it can be said that she has a history of failure to respond to non-custodial penalties and is unable, or unwilling, to respond to them. We have no doubt that that was the conclusion at which the Youth Court arrived, but the conclusion should have been expressly stated. 12. Finally, counsel submitted that the sentences imposed should have been concurrent and not consecutive. We think that this submission does have some force. The learned Assistant Magistrate expressed the view, when an additional two weeks' Youth Detention was imposed for the larceny of the mobile telephone, that a consecutive sentence would have been imposed by the Youth Court on 6 th November, had it been aware of this offence. We do not feel quite so confident. Looking at the matter in the round, there are two factors which lead us to the conclusion that this appeal may be allowed, in part. 13. First, we are conscious that we are dealing with a fifteen year old girl, sentenced to Youth Detention for the first time. The totality factor is an important consideration in this case. Secondly, the circumstances in which B is being detained at La Moye are very far from satisfactory, as we have already indicated, and we think that we ought not to prolong that period of detention beyond what is absolutely necessary in her own interests. We propose, therefore, to allow the appeal to the extent of making all the sentences imposed concurrent. 14. B, the result of all that is that the Court has reached the conclusion that there is no other way in which we can deal with you. You have been given so many opportunities in the past and not taken those opportunities and have committed further offences whilst on probation. We think that you have reached the stage where the only thing we can do, in your own interests and in the interests of the public, is to agree with the Youth Court that you be sentenced to Youth Detention. I have to tell you that when you are released from Youth Detention you will be liable to supervision by a Probation Officer or some other officer. For the reasons that we have given we are allowing the appeal to the extent that your sentences of Youth Detention will be made concurrent and thus reduced to a total of four months. Authorities Criminal Justice (Young Offenders) (Jersey) Law 1994. Education (Jersey) Law 1999: Article 11. Page Last Updated: 28 Aug 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII