Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - assault.

[2015]JRC085

Royal Court

(Samedi)

28 April 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Fisher and Nicolle

The Attorney General

-v-

Shawn Le Lay

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

First Indictment

1 count of:	Grave and criminal assault (Count 1).
4 counts of:	Assault (Counts 2, 3, 4 and 5).

Second Indictment

2 counts of:

Assault (Counts 1 and 2).

Third Indictment

1 count of:

Assault (Count 1).

Fourth Indictment

1 count of:

Assault (Count 1).

Age:  44.

Plea: Guilty.

Details of Offence:

The defendant was a serving prisoner (see AG v Le Lay [2014] JRC 041 which included an offence of assault on prison officer).  All of the assaults covered by the four Indictments were committed on prison officers during the execution of their duties.  The grave and criminal assault consisted of a nasty bite to the forearm of a female prison officer and included a kick to the face.  The bite broke the skin and caused the wound to bleed leaving scars.  Psychological impact upon the officer.  Count 3 on the First Indictment consisted of a head-butt to the officer's face.  Counts 4 and 5 on the First Indictment also consisted of bites to the two officers who had gone to the defendant's assistance as he was attempting to commit suicide in his cell.  All three officers who were bitten suffered psychological effects and had to undergo blood tests over a 6 month period which added to stress levels.  The counts on the Second Indictment consisted of punches to the officers' faces as they tried to put defendant on a prison van for a court appearance.  The Third Indictment consisted of a head-butt to a prison officer who was trying to calm down and restrain the defendant when he appeared in the Royal Court and refused to remain in Court.  The Fourth Indictment consisted of a punch to the officer's face and this at the time when the defendant knew he was awaiting sentencing on the other Indictments. 

Save for the bite in Count 1 on the First Indictment all the other injuries were superficial and had no lasting effect on officers. 

The Crown applied the factors in Harrison v AG as were appropriate.  Five separate and distinct incidents: therefore consecutive sentences warranted. 

Details of Mitigation:

The Crown

Guilty plea albeit entered late in the day.  Little or no co-operation with police. Declined to be interviewed in relation to a number of the Counts.  No remorse or regret expressed.  No youth or good character.  A number of psychiatric and other background reports available to the Court which indicated that the defendant suffered from a variety of personality disorders and Autism/Asperger's syndrome. 

The Defence

Expert reports recommended further assessment and treatment in medium secure unit in the UK.  Place and funding was available.  The defendant was willing to undergo assessment re treatment and expressed a desire to remain in the UK upon completion of sentence.  The Court invited not to impose sentence greater than potential treatment order (2 years) as if the defendant returned to prison after completing the treatment order this would be counter-productive and undo the work undertaken.  On the other hand if treatment still required at the conclusion of sentence then the defendant would remain in the care of relevant medical authorities under UK Mental Health Act until treatment completed. 

Previous Convictions:

12 convictions for 33 offences; grave and criminal assault; 12 convictions for assault of which 3 committed on police and 2 on prison officers; 2 convictions of indecent exposure; possession of offensive weapons; making hoax/annoying phone calls; harassment; attempting to escape from custody, and motoring offences including failure to provide a breath specimen. 

Conclusions:

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive.
Count 5:	6 months' imprisonment, concurrent.

Second Indictment

Count 1:	6 months' imprisonment, consecutive to the First Indictment.
Count 2:	6 months' imprisonment, concurrent.

Third Indictment

Count 1:

6 months' imprisonment, consecutive to the First and Second Indictments.

Fourth Indictment

Count 1:

6 months' imprisonment, consecutive to the First, Second and Third Indictments.

Total: 3½ years' imprisonment. 

Sentence and Observations of Court:

The Court summarised the offences.  The Court noted the defendant loses his temper very easily and when he does, he lashes out and has assaulted officers.  The Court had seen another side to him from the references: can be very helpful and a good friend to people.  However, since the death of the defendant's mother there had been a deterioration in his behaviour.  He had committed a number of previous convictions for violence.  Assessed as being very high risk of re-offending.  The Court had a number of reports before it.  Noted the defendant suffered from Asperger's Syndrome and also a number of personality disorders.  Recommendation that he would benefit from a further period of assessment and treatment in a high or medium secure unit in the UK.  Some disagreement as to whether he required a high or medium secure unit but the consensus was for a medium secure unit.  To the defendant's credit he had recognised that he needed treatment and was keen to undertake such treatment.  

The Crown had moved for total conclusions of 3½ years' imprisonment and in normal circumstances that would be the least sentence that he could expect to receive.  Prison officers are entitled to the Court's protection.  They do a difficult job and if a prisoner assaults a prison officer then he should expect a severe punishment.   Could have been no complaint had the Crown moved for a more severe sentence in the circumstances. 

The Court agreed with the experts.  There was a real need for treatment and it was not only in the defendant's interest but also in the community's interest that he received it.  If he does not, then the pattern of violence was likely to continue.  The Court noted the concerns of the experts that if sentence not completed but treatment was then he would be returned to La Moye Prison and all of the experts were of the view that this would be counter-productive.  It would undo the work undertaken under the treatment.  On the other hand if sentence completed but treatment not completed, then the unit would apply for continuation of treatment under the Mental Health Act.  The best estimate provided by Dr Harrison for the length of time required for the assessment and treatment was something in the region of 2 years.  Advocate Fitz (amicus) suggested reducing the sentence to 2½-3 years.  With remission there would then be no risk that the treatment would be completed and the defendant returned to prison. 

In the very unusual circumstances the Court was going to reduce the Crown's conclusions so as to avoid that risk.  The Court did so in the knowledge that even if sentence expired, the defendant would continue to be detained and receive treatment.  However the Court could not impose a sentence below 3 years because of the gravity of his offending.  The Court had to pass an appropriate sentence for the offences committed.  Although no logical reason for doing so the Court was going to reduce conclusions on the Fourth Indictment and make them concurrent rather than consecutive.  The Court confirmed that the Crown was quite right to seek consecutive sentences.  The Court would therefore impose a total sentence of 3 years which would then achieve the object of assessment and treatment.  The Court also made the recommendation for a transfer to an appropriate unit in the UK as soon as possible.  The Court congratulated the defendant on his acceptance of the need for treatment and expressed the hope that it was successful. 

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive.
Count 5:	6 months' imprisonment, concurrent.

Second Indictment

Count 1:	6 months' imprisonment, consecutive to Count 1 on the First Indictment.
Count 2:	6 months' imprisonment, concurrent.

Third Indictment

Count 1:

6 months' imprisonment, consecutive to the First and Second Indictments.

Fourth Indictment

Count 1:

6 months' imprisonment, concurrent to the First, Second and Third Indictments.

Total: 3 years' imprisonment. 

J. C Gollop, Esq., Crown Advocate.

The Defendant appeared on his own behalf assisted by Advocate S. E. Fitz as amicus curiae.

JUDGMENT

THE commissioner:

1.        Mr Le Lay, as you know you are before the Court for nine assaults on prison officers on five separate occasions, one being for a grave and criminal assault, and the remainder being for common assault.  The first three counts on the First Indictment were on 12^th August at the prison when you bit Officer Pike on her arm, breaking the skin and then kicking her in the mouth.  That is the grave and criminal assault.  We have to say it was a nasty assault on a woman and has caused her great distress, particularly through the possibility of infection or disease.  And on the same occasion you assaulted two other officers when they intervened to restrain you, head-butting one and punching the other.  The next two counts on the First Indictment were on 20^th August.  This time an officer came to help you because you seemed to be trying to strangle yourself; you bit him and another officer and again, they had the stress of the risk of disease.  On 3^rd October you violently resisted being put in the prison van to come to Court and during this process you punched two officers in the face causing bruising and swelling, and that is the Second Indictment.  The Third Indictment relates to 7^th November.  When you were in the dock in the Royal Court, you became violent and head-butted an officer to the face.  The Court had to adjourn and a total of eight officers were required to remove you from Court.  And finally, on 25^th March, the Fourth Indictment, whilst at the prison you punched an officer to the face, causing swelling, bruising and some chipped teeth.  As all this shows, and as we think you accept, you do lose your temper very easily and when you do you lash out and assault officers even if they are trying to help you. 

2.        Sadly, since your mother died, you seem to have gone off the rails a little as we think you accept.  It is quite clear from the references we have got that in many ways you can be very helpful and a good friend to people but since your mother's death, you have appeared before the Court on a number of different occasions for a substantial number of offences including a grave and criminal and twelve common assaults, many of them on police or prison officers.  All the reports agree that the risk of you reoffending in a violent manner is very high. 

3.        Now, as you know, we have received a number of expert reports from psychiatrists and these show that not only do you suffer from Asperger's Syndrome but also from a number of other personality disorders.  The recommendation of these experts is that you would benefit from a period of assessment and treatment in a medium or high secure unit in England under the English Mental Health legislation.  Although there is some disagreement between them as to whether it should be a medium or high security unit, the consensus seems to be that a medium secure unit would be better and, to your credit, you have recognised that you need treatment and, indeed, you are keen that it should be pursued. 

4.        The Crown has moved for an aggregate sentence of 3½ years' imprisonment.  We have to say that in normal circumstances this would be the least sentence that it would be proper to impose.  Prison officers are entitled to the Court's protection; they have a difficult job and it needs to be clearly understood by prisoners that if they assault a prison officer, they can expect severe punishment.  The assaults that you committed have caused stress and worry as well as physical injury.  There could have been no complaint had the Crown moved for a longer sentence.  But we agree with the experts that what you need is treatment and that it is in the community's interests as well as your own that you receive this treatment, because if you do not receive it this pattern of violent conduct is likely to continue. 

5.        The difficulty, as explained to us by Advocate Fitz and accepted, we think, by Crown Advocate Gollop, is that it is an important part of the treatment that at its conclusion you should be released back into the community on a planned and supported basis.  If at the conclusion of the treatment the sentence had not yet been completed, you would be returned to La Moye to serve the balance of your prison sentence.  The experts all agree that this would be counter-productive and run the risk of undoing anything achieved by the treatment.  Conversely, if the treatment were not to be completed by the time your prison sentence, allowing for remission, expired, there would, we are told, be no danger of premature release because the unit in question would apply for your continued detention under the English Mental Health legislation until completion of the treatment.  It is difficult to know exactly how long the treatment will take because, of course, these things are individual but the best estimate we have been given by Dr Harrison is something in the region of 2 years.  Advocate Fitz has therefore suggested that we should pass a sentence of 2½-3 years so that, allowing for one third remission, there is no danger of the sentence still being in existence at the completion of your treatment. 

6.        In the very unusual circumstances of this case, we are willing to reduce the sentence to avoid that risk and to avoid the risk of undoing the effect of the treatment.  We do so in the knowledge that even if the sentence expires before you have completed the treatment, you will be detained until completion of the treatment in the way we have just described.  But we do not feel we can reduce the sentence below 3 years because of the gravity of what you did; the Court must pass an appropriate sentence for the offences which you committed.  We think the best way of achieving the reduced sentence is to make the sentences on the Fourth Indictment concurrent; that is not because there is any logic to it, the Crown was quite right to move for consecutive sentences for every separate incident, but nevertheless we will make it concurrent to achieve the conclusion. 

7.        The sentence of the Court is as follows:- on the First Indictment, Count 1; 18 months' imprisonment, Count 2; 6 months' imprisonment, Count 3; 6 months' imprisonment, all of those concurrent, Count 4; 6 months' imprisonment, consecutive, Count 5; 6 months' imprisonment, concurrent.  On the Second Indictment, Count 1; 6 months' imprisonment, consecutive, Count 2; 6 months' imprisonment, concurrent, and on the Third Indictment, 6 months' imprisonment, consecutive, and on the Fourth Indictment, 6 months' imprisonment, concurrent.  So that makes a total of 3 years' imprisonment which we believe will achieve the objective which Advocate Fitz has put forward.  So in summary, the sentence is 3 years imprisonment and we repeat our recommendation that you be transferred to England for treatment as recommended by the various psychiatric reports as soon as this is possible. 

8.        Can we just say this Mr Le Lay.  We congratulate you on accepting the desirability for treatment and we hope very much, for your sake as well as the community's, that it will be successful and we wish you well during the treatment.  Finally, we would like to express our great gratitude to Advocate Fitz who has acted as amicus in this case and has assisted in bringing this matter to a conclusion together, of course, with Crown Advocate Gollop.  

Authorities

Harrison-v-AG [2004] JLR 111.

AG-v-Le Lay [2014] JRC 041.

AG-v-Baglin [2003] JRC 085

Whelan on Aspects of Sentencing in the Superior Courts of Jersey.

Anxiety to Meltdown by D. Lipsky.