2001/21
5 pages
COURT OF APPEAL.
23rd
January, 2001
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Before:
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Sir John Nutting, Bt., Q.C., President;
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P.D.
Smith, Esq., Q.C., and;
M.G.
Tugendhat, Esq., Q.C..
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Jason
Martin KELLY
-v-
The
Attorney General
Appeal against a total sentence of 7 years’
imprisonment passed on 22nd November, 2000, by the Superior
Number of the Royal Court to which the accused was remanded by the Inferior
Number on 13th October, 2000,
following a guilty plea to the following counts:
1
count of: breaking, and entering, and
larceny (count 1);
1
count of: grave and criminal assault
(count 3);
1
count of: taking and driving away a motor
vehicle without the owners consent/other lawful authority, contrary to Article
28(1) of the Road Traffic (Jersey) Law, 1956 (count 4);
1
count of: driving a motor vehicle without
a licence, contrary to Article 3(1) of the Road Traffic (Jersey) Law, 1956
as amended
(count 5);
1
count of: using a motor vehicle whilst
uninsured against third party risks, contrary to Article 2(1) of the Motor
Traffic (Third Party Insurance) (Jersey) Law, 1948 (count 6).
on which counts the
following sentences were passed:
count 1: 18
months’ imprisonment;
count 3: 7
years’ imprisonment;
count 4: 6
months’ imprisonment;
count 5: £100
fine or 1 month’s imprisonment in default of payment;
count 6: 1
month’s imprisonment; 12 months’ disqualification from driving.
All concurrent: TOTAL: 7 years’ imprisonment; £100
fine or 1 month’s imprisonment in default of payment; 12
months’ disqualification from driving.
[Count 2 relates to a
co-accused, Brian Jamie Botting (aka Stopher), who has not appealed.]
Leave to appeal was granted
by the Deputy Bailiff on 12th December, 2000.
Advocate
P.M. Livingstone for the appellant.
N.M.
Santos Costa, Esq., Crown Advocate.
JUDGMENT.
THE PRESIDENT:
1.
On the 22nd
November 2000 this Appellant was sentenced to serve a total of seven
years’ imprisonment by the Superior Number of the Royal Court. He was granted leave to appeal to this
Court by the Deputy Bailiff on the 12th December 2000.
2.
The
Appellant, who is now twenty years of age, was jointly charged with another
man, Brian Botting, in connection with a number of offences arising out of
incidents which took place in the early hours of the 2nd April
2000.
3.
Shortly
after midnight the Appellant stole a Honda car from outside an address in
Cleveland Road. He and Botting
later drove to the Portelet Garage where the Appellant burgled the pump
attendant’s kiosk by breaking the glass in the door panel and removing an
electronic till, cutting himself in the process. Both men returned to Botting’s
flat, where they discovered, no doubt to their chagrin, that the till contained
only parking paycards and petrol cards.
They decided to cut their losses and dispose of the vehicle and the
till; and at about 6 o’clock that morning, with the Appellant at the
wheel, the two men drove off to find a suitable location. At 6.30 am P.C. Forde was driving
his police motor cycle along Plat Douet Road when he saw the Honda being driven
at what he considered to be an excessive speed. The officer decided to follow the
vehicle which reached speeds of between 50 and 65 miles an hour during the
chase. On the journey P.C. Forde
activated his flashing lights and sounded his motor cycle siren.
4.
Initially
the Appellant paid no attention to these signals but when he reached Caldwell
Hall he slowed and then stopped the car.
P.C. Forde pulled up 15 feet behind the Honda and prepared to dismount
to talk to the Appellant. Suddenly
he noticed the reversing lights of the car illuminate and saw it accelerating
towards him. He had
insufficient time to dismount before the Honda hit the front wheel of the motor
cycle. The officer was thrown
backwards with some force against the raised support behind the driving
seat. The Appellant then
changed gear and attempted to speed away. However the two vehicles had
become entangled by the force of the collision and part of the front of the
motor cycle had become wedged beneath the Honda. This caused a slight delay before the
Appellant managed to make his intended escape. The two men then later abandoned the
vehicle and returned to Botting’s flat.
5.
In the
meanwhile P.C. Forde managed to radio for assistance. He was taken to the General Hospital
where he was found to have bruising to his lower back and to be experiencing
the effects of shock. It is clear
from medical evidence before us that he has suffered mentally and physically as
a result of the incident.
6.
The car
was later found where the Appellant had abandoned it. Blood on the steering wheel matched
blood found at the garage and proved to be indistinguishable from the
Appellant’s blood. He
was arrested with Botting on the 6th April 2000.
7.
At his
trial the Appellant stood indicted for taking and driving away the Honda (count
4), breaking and entering and larceny (count 1) and grave and criminal assault
on P.C. Forde (count 3). The
indictment also contained associated offences of driving without a licence and
without insurance. The Appellant
pleaded guilty to all these offences and was sentenced, materially, to six
months’ imprisonment for taking and driving away the Honda, 18
months’ imprisonment for breaking and entering the garage and larceny,
and seven years for the grave assault on P.C. Forde. All the sentences were
made concurrent.
8.
Botting,
who appeared in Court in connection with a number of other matters, was only
charged with allowing himself to be carried in the stolen car. He has not appealed.
9.
We have
been invited to review the sentence imposed on the Appellant for the grave and
criminal assault. No complaint is
made in relation to the sentences passed for the other offences. It is clear from an analysis of
the sentencing remarks that in assessing the appropriate sentence for the assault,
the Court took as their starting point the sentence of ten years, reduced it by
2½ years to reflect the plea, and by a further six months to reflect the
Appellant’s youth, thereby arriving at a total sentence of seven years
imprisonment.
10. There
can be no doubt that the injuries inflicted on P.C. Forde were caused as a
direct result of the deliberate ramming of the motor cycle at a time when the
officer was sitting astride it and with the object of preventing the officer
making any further pursuit. Before
this Court, Advocate Livingstone has argued that having regard to some English
authorities, notably the case of R v Hall [1997] 1 Cr. App. R (S.) page
62, and R v Boulter [1996] 2
Cr. App. R (S.) page 428, the starting point for sentence in this case should
have been eight years and not ten years.
11. In
R v Hall the Appellant, after a contested trial, was sentenced to twelve
years’ imprisonment for injuring a police officer in an attempt to evade
capture by reversing his car as she was approaching the vehicle from the rear,
knocking her down and running over her body with the back wheel. The facts in R v Boulter
involved, by contrast, a head-on collision between the Appellant’s car
and a police car, caused by the Appellant’s recklessness in his attempt
to escape pursuit, rather than by a deliberate and intentional act resulting in
injury. It is true that the
conduct of the Appellant in R v Hall was graver than that of this
Appellant and that the police officer in that case was more seriously injured
than P.C Forde. Those matters
no doubt account for the fact that the Royal Court chose as a starting point a
sentence two years lower than that passed in R v Hall. But it was the deliberate act of ramming
the motor cycle when the police officer was astride it which bears comparison
to the facts of R v Hall and contrasts with the case of R-v-Boulter. We consider that the Royal Court was
correct in using the former rather than the latter as a guide to sentence. We take the view that the ten year
starting point was correct.
12.
Secondly,
it is said, the Court failed to reflect the Appellant’s youth in the
sentence passed. We were referred
by Advocate Livingstone to certain authorities in which the Court of Appeal in
England has suggested that sentences should be reduced by factors of between
20% and 40% to reflect the youth of certain appellants. In our view youth is a matter
which can be more readily taken into account where the Court is concerned with
offences of lesser gravity than the instant offence. The more serious the offence the less it
is likely that a Court will be able to give a significant discount for youth,
particularly as here, where any sentence passed must reflect a measure of
deterrence and where it is important that the Court sends a clear message to
those who are tempted to injure police officers engaged in the prevention or
detection of crime. This is an
aspect of the case to which we will return.
We conclude that the six months’
deduction for the Appellant’s age was reasonable.
13.
Thirdly,
it is argued that the lower court failed to give the Appellant sufficient
credit for his plea of guilty. We
were referred to a number of authorities including Stewart v Attorney
General (18th April 1994) Jersey Unreported, Attorney General v Lawlor
(25th April 1994) Jersey Unreported, Attorney General v Hunter (5th
January 1995) Jersey Unreported, Attorney General v Kelly (16th
January 1995) Jersey Unreported, and Campbell and Ors v Attorney General
(1995) JLR 136 CofA. An analysis of
these cases demonstrates that courts in this jurisdiction have usually awarded
a one third reduction for a guilty plea.
But it must be remembered that the extent of credit given for an
acknowledgement of guilt, will depend on the strength of the evidence. A defendant who pleads guilty in
reflection of overwhelming evidence will be given less credit than someone who
has either by admissions provided the evidence on which he is tried or who is
willing to acknowledge guilt where the evidence is weak. In view of the scientific evidence in
this case, we take the view that the Appellant had little choice in relation to
his plea. We consider that the 25%
reduction allowed by the Royal Court was appropriate.
14.
We desire
to emphasise that sentences in cases of this kind must contain an element of
deterrence. The trial judge in R
v Hall indicated in his sentencing remarks that he intended to impose what
he conceded was a heavy sentence of twelve years’ imprisonment on the
offender for the following reasons:
“To deter you, to deter others, to protect the police and to
protect the public.”
He added:
“Every day of the year policemen and policewomen go out to do
their duty to safeguard the interests of the public and to protect the public
as appropriate. In the world in
which we live, unfortunately, they face danger, or the risks of danger,
whenever they go out on the beat in patrol cars and in all other ways in which
police officers go into the community to serve the public.”
15. We
endorse those remarks and we wish to make it clear that violent attacks on
police officers, particularly with weapons, will not be tolerated by this
Court. This Appellant used a
car deliberately to ram P.C. Forde’s motor cycle. He did so before the officer had
dismounted and in circumstances in which the officer had no time to take
evasive action. He did so to avoid
being arrested for the offences he had committed that night. His conduct exposed the officer to the
risk of very serious injury and it is by good fortune rather than by any
mitigating feature in the Appellant’s conduct that P.C. Forde was not
more seriously injured. The courts in
this Island will seek to deter such behaviour.
16. The
appeal is dismissed.
Authorities.
R-v-Hall [1997]
1 Cr. App. R. (S) 62.
Stewart-v-AG
(18th April, 1994) Jersey Unreported CofA.
AG-v-Lawlor (25th
April, 1994) Jersey Unreported.
AG-v-Hunter (5th
January, 1995) Jersey Unreported.
AG-v-Kelly (16th
January, 1995) Jersey Unreported.
Campbell &
Ors-v-AG (1995) JLR 136 CofA.
R v Boulter [1996] 2 Cr. App. R (S.) 428