Manslaughter - reasons for the sentence imposed
[2021]JRC005
Royal Court
(Samedi)
12 January 2021
|
Before :
|
T. J. Le Cocq, Esq., Bailiff, and Jurats
Ronge and Christensen
|
The Attorney General
-v-
Andrew Nisbet
M. R. Maletroit Esq., Crown Advocate.
Advocate M. P. Boothman for the Defendant.
JUDGMENT
THE BAILIFF:
1.
On 19th
August 2020 we sentenced Andrew Nisbet (“the Defendant”) for the
manslaughter on 6th August 2019 of his 68-year-old mother, Pamela
Nisbet (“Mrs Nisbet”) whom he fatally stabbed (AG v Nisbet
[2020] JRC 167).
2.
Although
originally charged with murder with manslaughter in the alternative, the Crown,
in the light of the psychiatric evidence, accepted the Defendant’s plea
of guilty to manslaughter on the grounds of diminished responsibility in that
he was suffering from such an abnormality of mind that his mental
responsibility for the killing was substantially impaired.
3.
We
sentenced the Defendant as follows:
(i)
Ordered
that the Defendant shall be subject to a treatment order for an indefinite
period pursuant to Article 65 of the Mental Health (Jersey) Law 2016
(the “2016 Law”), to be carried out at Brockfield House, an
approved establishment in accordance with Article 5 of the 2016 Law, where the
Defendant is already present by virtue of the Court’s previous orders;
(ii) Ordered that the Defendant shall be subject to
a restriction order for an indefinite period pursuant to Article 68 of the 2016
Law;
(iii) Granted the Defendant leave of absence from
Brockfield House in circumstances where the responsible medical officer
believes it necessary in the interests of the patient’s health or safety,
the protection of other persons, or it is appropriate for the treatment of the
Defendant on the condition that in those circumstances the Defendant is
accompanied by at least one member of staff from Brockfield House; and
(iv) Ordered that the Defendant shall be examined by
his responsible medical officer at intervals of not less than nine months, and
that written reports of such examinations shall be sent to Her Majesty’s
Attorney General containing the responsible medical officer’s opinion as
to whether the restriction order should continue in effect, and opinion as to
where any further treatment of the Defendant is to be carried out.
And furthermore the Court:
(v) Made a restraining order pursuant to Article 5
of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008, as
amended by the Telecommunications (Amendment No. 3) and Crime (Miscellaneous
Provisions) (Jersey) Law 2016, for an indefinite period from this day, in
the terms set out in the Schedule attached thereto.
4.
The
Restraining Order prevents the Defendant from contact with his father and other
members of his family.
5.
At the
sentencing hearing, we indicated we would provide our reasons at a later
date. These are our reasons.
6.
The
Defendant was forty years of age at the time of the offence and he was residing
with his partner and their 18-month-old son in a one-bedroom annexe to his parent’s
property in St. Peter. The
Defendant’s parents, Mr and Mrs Nisbet were residing in the main house.
7.
The
Defendant and his partner had moved into the annex in November of 2017, having
relocated from Scotland to Jersey before the birth of their son. Mr and Mrs Nisbet had agreed that they
could stay in the annexe on a temporary basis.
8.
It is
common ground that the Defendant regarded his parent’s property as the
family home and he wanted to reside there long term with his partner and their
son. Shortly after moving into the
annexe, the Defendant began to make requests of his parents to make significant
alterations to the annexe. He
planned to develop it into a substantial separate dwelling.
9.
The
Defendant’s parents did not consider the annexe to be suitable and did
not agree to all of the alterations.
This initially caused the Defendant to be frustrated with them and often
he became angry and it was a cause of tension between him and his parents.
10. It is common ground that the Defendant suffered
a deterioration in his mental health and he became fixated on the idea that he
and his family must remain at his parent’s property. When his parents did not, on an
occasion, in January 2018 agree to his demands to install a heat pump in the
annexe he jumped from a second storey window and seriously injured his legs.
11. The Defendant continued to make demands of his
parents about the living arrangements and they found things increasingly
difficult because of the Defendant’s deteriorating behaviour. As an alternative the Defendant’s
parents purchased a separate three-bedroomed house and offered it to the
Defendant and his family at a low rent.
That offer was declined and the Defendant refused to leave the annexe.
12. The Defendant’s parents eventually, in
the absence of any agreement as to the living arrangements, decided that the
Defendant had to leave. This
increased the tension and on two occasions in July of 2019 the Police were
called to the property as the Defendant had entered the main house, shouted at
his parents in relation to the eviction and had refused to leave.
13. Formal eviction proceedings were commenced and
a summons was served on the Defendant on 7th August requiring him to
appear in the Court on 9th August 2019.
14. The Defendant’s parents kept the
Defendant’s General Practitioner and Mental Health Services appraised of
the situation and risk assessments were carried out prior to notice of eviction
being served. A Mental Health
Assessment was conducted on 1st August 2019 in order to determine
whether the Defendant should be detained at Orchard House, but agreement could
not be reached on whether the grounds of detention were satisfied and therefore
Defendant remained in the community.
15. On 6th August 2019, a Strategy
Meeting was held with representatives from the Police, Children’s Service
and Mental Health Services to discuss the Defendant’s mental health and
the eviction. A consultant nurse
from the Adult Mental Health Service and a social worker attended at the
Defendant’s home to speak with him and the Defendant told them that if he
were to be evicted, he would get arrested and kill himself. The Defendant was described as being
clearly unhappy, disappointed and let down.
16. At approximately 6pm Mrs Nisbet agreed to have
a further discussion with the Defendant and his partner in the main house
concerning the eviction. The
Defendant’s father did not wish to participate and went into the
next-door room. The discussion did not
go well and Mrs Nisbet was not able to agree to the proposals that the
Defendant and his partner had put forward as to future living arrangements.
17. Mr Nisbet, who was within ear shot, heard the
Defendant’s partner leave the kitchen. Approximately three minutes later he
heard his wife scream which he described as “a bad scream not an upset
scream”. He went to the
kitchen and saw his wife lying on the floor bleeding from her neck. She was still breathing. The Defendant was standing near her with
a Leatherman knife in his hand.
18. Mr Nisbet, who has medical training, told the
Defendant that he needed to get to his wife to help her and the Defendant
waived a knife towards him and would not allow him to approach his injured
wife. He eventually managed to get
hold of a walking stick and hit the Defendant’s wrist in an attempt to
knock the knife out of his hand.
The stick broke. Mr Nisbet
recalled saying to the Defendant “Andrew for Gods sake let me go and
look after your mother” and the Defendant’s response was
“I can’t do that”. Eventually Mr Nisbet forced him out of a
side door of the kitchen and locked him out. He called 999 whilst attempting to
resuscitate Mrs Nisbet who had by that time lost a significant amount of
blood.
19. The Defendant returned to the annex in
possession of his knife. His
partner described him as looking panicked and when she asked what had happened,
he responded “I don’t know, I just couldn’t cope any more”. He told her the Police would be coming
and that he would be going with them and she would need to look after their
son.
20. At approximately 7pm armed Police Officers and
an Ambulance crew arrived at the property.
Officers entered the annex and the Defendant identified himself and was
arrested and made no response to caution.
The blood-stained knife was located in the bathroom.
21. Mrs Nisbet had lost a significant amount of
blood and suffered a cardiac arrest.
The Paramedics found no signs of life. Their attempts to resuscitate her were
unsuccessful and she was pronounced dead upon arrival at the hospital at 7:44pm.
22. The Defendant was interviewed the following
morning in the presence of his legal adviser and provided no comment interviews
to all material questions.
23. The Defendant advised that he wished to read a
prepared statement. On 9th
August 2019, the Defendant was further interviewed and his prepared statement
was read. He stated that he had
heard voices in his head during the discussion with his mother. The voices said he was useless, and that
he would never be safe. He then
heard a voice several times “you have to”. He states “the next thing I
remember standing a few feet away from my mother who was lying on the
floor. I realised that I had a
knife in my hand and I felt very confused”.
24. The postmortem examination on Mrs Nisbet
concluded that she died as a result of a single stab wound to the left side of
her neck. There were no defence
type injuries or blunt force trauma identified.
25. On 29th August 2019, the Defendant
was directly indicted to the Royal Court and reserved his plea to murder. The Court ordered his transfer to
Brockfield House, in the United Kingdom, a medium secure psychiatric unit in
Essex. The purpose of this transfer
was for a mental health assessment to be conducted in that specialised
psychiatric unit to identify risk management measures that should be adopted
for the Defendant’s welfare and to consider treatment options. The Defendant was assessed and the
assessing doctor recommended that he remain at Brockfield House to receive treatment.
26. The Defence instructed Dr Richard Latham
(“Dr Latham”) to assess the Defendant and opine on the availability
of a diminished responsibility defence.
That assessment was conducted in March 2020. On 3rd April 2020, the
Defendant appeared in the Royal Court by video link and entered a not guilty
plea to murder and indicated a guilty plea to manslaughter on the basis of
diminished responsibility.
27. The Crown instructed its own expert, Dr Ian
Cumming, (“Dr Cumming”) to assess the Defendant and also to opine
on the availability of a diminished responsibility defence. That assessment took place on 11th
May 2020.
The Defendant’s Mental Condition
28. All of the experts in this case who have
provided reports or given evidence before us agree that the Defendant fulfils
the criteria for a diagnosis of autism spectrum disorder (ASD).
29. Dr Cumming in his report explains ASD in the
following way:
“Autism is diagnosed on
the basis of social and communication difficulties, alongside unusually narrow
interests, and inability to deal flexibly with change. Autism affects the individual’s
judgment about friends or relationships, ability to read cues on social
situations, and to understand other people’s behaviour or social
conventions. Autism also leaves the
individual vulnerable to getting into trouble through social naivety or poor
decision making. Under stress the
individual may find it hard to think flexibly about alternative options for
problem solving. Autism typically
means a person may not be thinking about the longer-term consequences of their
behaviour on others, and leads them to focus narrowly on the present problem
facing them.
Because people with autism are
also strongly obsessional, meaning that they pursue their current topic of
thought to extraordinary detail and in great depth, they can develop
‘tunnel vision’ that prevents them from seeing the bigger picture,
including the repercussions of their current actions.”
30. It appears to be clear that the Defendant
developed the fixed belief that the difficulties in his life would be resolved
by remaining at his parents’ home.
He was not capable of thinking flexibly and notwithstanding his
undoubted intelligence he was unable to change.
31. In evidence, Dr Cumming uses the analogy of a
pressure cooker and says in his report:
“though appearing quite a
controlled person, he was coping with enormous stress, mainly generated by his
own actions and behaviour …. combined with the inflexible thinking which
prevented him from resolving the eviction as well as the distress of his
partner, this led to his actions and the violence meted out on his
mother.”
32. Dr Latham also provides a report and indicates
that in his opinion the Defendant’s mental health may well deteriorate in
situations where he cannot remain in control of the situation. He expresses his opinion in the
following terms:
“[The Defendant] had
become fixed, preoccupied and irrationally attached to his aim to stay at the
family home. He was anxious and
highly distressed. He was unable to
appreciate other people’s perspective and consider alternatives; he only
saw one option and was making repeated and desperate attempts to achieve
that. This mental state was
abnormal and was subsequently arising out of a developmental condition
Asperger’s Syndrome. The
Asperger’s Syndrome and the symptoms associated with it was the
foundation for the way in which his personality and anxiety symptoms were then
affecting his overall state. In
other words, the overwhelming distress and anxiety was almost impossible for
him to manage because of the underlying Asperger’s Syndrome. Similarly, any sense of entitlement he
felt (which may have been associated with a personality trait) was not amenable
to reason or rational consideration because of the cognitive state associated
with Asperger’s Syndrome.
Ultimately, it is likely that the anxiety and distress led to him acting
in a way that represented a state of decompensation so that he was unable to
exercise ordinary control over his behaviour and use of the cognitive ability
he did have, to find an alternative way out of the situation.”
33. A number of reports from the doctors mentioned
above and indeed from other experts were placed before us. Dr Cumming, Dr Nicholas Hallett
(“Dr Hallett”) and Dr Latham also gave evidence before us. Dr Cumming and Dr Hallett are
practitioners approved by the Minister for Health and Social Services under
Article 16 (1) of the Mental Health (Jersey) Law 2016, and Dr Latham is
a registered medical practitioner under the Medical Practitioners
(Registration) (Jersey) Law 1960.
34. We do not think it appropriate and it would
unnecessarily burden this judgment to go into the detail of the medical
evidence before us. It was clear
from that evidence that the Defendant was suffering from a mental disorder
being an abnormality of mind such as a mental responsibility for the killing
whilst substantially impaired. It
was further the case that the medical evidence pointed to the benefits of
treatment.
35. Dr Cumming’s evidence suggested to us
that the Defendant is capable of change although a time frame for improvement
could not be predicted and could well be years rather than months. He was not, however, a “lost
cause”. Significantly
better therapy was available in the therapeutic environment proposed than would
be available in prison.
36. Dr Hallett, was the treating clinician at
Brookfield agreed with Dr Cumming’s assessment relating to the necessity
in treatment in managing autism and he agreed that the Defendant should be
placed in a psychiatric unit rather than a prison.
37. Dr Latham agreed the evidence of Dr Cumming and
Dr Hallett and had no further matter to raise that weighed against their
conclusions.
38. We have found the medical evidence, which we
have only touched on briefly in this judgment, to be of substantial assistance in
considering the correct disposal of this matter.
Manslaughter
39. Manslaughter is, of course, a customary law
offence.
40. In the AG v Rzeszowski [2012] JRC 198
and AG v Brown [2017] JRC 200 the Court approached sentencing, in both
cases for manslaughter, on the basis that they first considered what would have
been the appropriate sentence for murder.
41. The starting point in that consideration is the
Criminal Justice (Life Sentences) (Jersey) Law 2014 (“2014
Law”) under which a starting point of 15 years’ imprisonment would
apply for cases which are not categorised as exceptionally serious or
particularly serious in accordance with the definitions contained within the
2014 Law and where the offender is an adult. The Crown argued before us that had the
case before the Court been one of murder, a fifteen year starting point would
apply and indicated that in the Crown’s view the offence would have been
aggravated by the fact that the victim was killed in her own home, the
Defendant attended the meeting with the victim armed with a knife, and whilst
still armed with the knife, the Defendant physically prevented Mr Nisbet from
giving first aid to the victim.
There was however no significant premeditation and that circumstances
existed which gave rise to a state of anxiety and distress to the Defendant.
42. The Crown placed before us the Sentencing
Council Guidelines for England and Wales relating to manslaughter, which were
introduced in November 2018. As the
Crown rightly observes, the Guidelines themselves have no application in Jersey
as to tariff but are often used by the Courts in considering issues such as
harm and culpability and risk.
Those guidelines say this:
“Cases of manslaughter by
reason of diminished responsibility vary considerably on the facts of the offence
and on the circumstances of the offender.
The Court should review whether the sentence as a whole meets the
objectives of punishment, rehabilitation and protection of the public in a fair
and proportionate way. The relevant
factors will include psychiatric evidence and the regime on release”.
43. It is, of course, open to the Court to impose a
discretionary life sentence with a minimum period of imprisonment. In the case of Brown, however,
the Court applied the two stage tests set out by the Court of Appeal in C v AG
[2015] JCA 159 in saying this:
“We are of the clear view
that the principles identified in the decisions of the English Court of Appeal
…. should apply in Jersey. A discretionary
life sentence should be passed only where the offender has been convicted of a
very serious offence and where there is a good reason to believe that the
offender may be a serious risk to the public for a period which cannot be
determined at the date of sentence.”
44. Manslaughter is, of course, a very serious
offence. However, it is the expert
evidence to which the Court will have regard in determining whether the second
part of that test is satisfied. The
medical evidence before us was not to the effect that the Defendant in this
case posed a very serious risk.
Some risk may be posed to other members of his family, particularly Mr
Nisbet, should the Defendant maintain the belief that his happiness can only be
secured by residence at the family home or some other thing to which Mr Nisbet
was perceived as an obstacle. Even
so, it was not suggested that that risk was high and it might be met by other
restrictions.
45. The Court has the option to make a Treatment
Order under Article 65 of the Mental Health (Jersey) Law 2016 which
provides as follows:
“65 Treatment orders
(1) A court may order that the Defendant be
admitted to and detained in a specified approved establishment for treatment,
where –
(a) The court is satisfied, on the evidence of 2
medical practitioners, at lest one of whom is an approved practitioner, that
–
(i)
The
Defendant is suffering mental disorder of a nature or degree that warrants
admission to and detention in an approved establishment for treatment, and
(ii)
The
treatment cannot be given to the Defendant without such admission and
detention;
(b) The court is of the opinion, having regard to
all the circumstances including (but without limitation) the nature of the
offence and the Defendant’s character and antecedents and to other
methods of dealing with the Defendant, that an order under this Article (a
“treatment order”) is the most suitable method of disposing of the
case; and
(c) The court is satisfied, on the written or oral
evidence of the approved practitioner or some other person representing the
managers of the approved establishment in question, that arrangements have been
made for the admission of the Defendant to the establishment within 7 days of
the date of the order.”
46. There are also powers available to the Court,
in terms of restrictions, pursuant to Article 68 of the 2016 Law to protect the
public. Article 68 reads as
follows:
“68 Special restrictions on
treatment orders
(1) Where a treatment order is made in respect of a
Defendant and it appears to the court, having regard to the matters in
paragraph (2), that it is necessary to do so to protect the public from serious
harm, the court may further order that the treatment order shall take effect
only with special restrictions, either without limit of time or during such
period as the court may specify.
(2) The matters mentioned in paragraph (1) as those
to which the court must have regard are:
(a) The nature and gravity of the offence;
(b) The antecedents of the Defendant;
(c) The risk of the Defendant committing further
offences if the Defendant remains at liberty.
(3) A further order under paragraph (1) (a
“restriction order”) shall not be made unless at least one of the
practitioners giving evidence for the purposes of Article 65(1)(a) has given
evidence orally before the court.
(4) Where a restriction order is made in respect of
the Defendant –
(a) The Defendant shall be conveyed to the
specified approved establishment within the period of 7 days beginning with the
date of the order and in accordance with any directions given by the court for
that purpose;
(b) The mangers of the establishment shall admit
the Defendant and thereafter detain and deal with the Defendant as a patient in
respect of whom a treatment authorisation had been made under Part 3, except
that –
(i)
Leave of
absence under Article 24 shall not be granted nor the Defendant be transferred
under Article 26 without leave of the court, and
(ii)
Article
27(1) to (5) shall not apply unless and until the restriction order ceases to
have effect in accordance with paragraph (5).
(5) A restriction order shall not cease to have
effect unless the court is satisfied, on an application made for the purpose by
–
(a) The Defendant, or the Defendant’s nearest
person appointed or nominated under Part 2; or
(b) Pursuant to a report under paragraph (6), the
Attorney General, that restrictions in respect of the Defendant are no longer
required to protect the public from serious harm.
(6) During the period for which a restriction order
remains in effect, the responsible medical officer must –
(a) Examine the Defendant at such intervals (not
exceeding 12 months) as the court may direct; and
(b) Make a report of each such examination to the
Attorney General, containing –
(i)
The
responsible medical officer’s opinion as to whether the restriction order
should continue in effect; and
(ii)
Such
further particulars as the court may require.”
47. These are the statutory provisions that apply
in the present case. AG v Michel
[2019] JRC 205 appears to be the only Jersey authority in which the Court has
opted to make a treatment order with special restrictions. The Defendant in that case had been
suffering from schizophrenia and committed a grave and criminal assault on her
partner involving a stabbing with a knife.
The Court, at paragraph 21 of the judgment said this:
“The power to make a
treatment order, rather than impose a custodial or other sentence, gives the
Court the ability, in an appropriate case, to ensure that the Defendant
receives the medical care he or she needs.
The House of Lords explained at paragraph 9 of R v Drew [2003]
UKHR 25 the effect of making such an order (without a restriction order), there
referred to as a hospital order made under section 37 of the Mental Health Act
1983 which corresponds with Article 65 of the 2016 Mental Health Law:-
“Once the offender is
admitted to hospital pursuant to a hospital order or transfer without
restriction on discharge, his position is almost exactly the same as if he were
a civil patient. In effect he
passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of
State has any say in the disposal.
Thus, like any other mental patient, he may be detained only for a
period of six months, unless the authority to detain is renewed, an event which
cannot happen unless certain conditions, which resemble those which were
satisfied when he was admitted, are fulfilled, if the authority expires without
being renewed, the patient may leave.
Furthermore, he may be discharged at any time by the hospital managers
or the responsible medical officer.
In addition to these regular modes of discharge, a patient who absconds
or is absent without leave and is not retaken within 28 days is automatically
discharged at the end of that period (section 18(3) and if he is allowed
continuous leave of absence for more than six (now twelve) months, he cannot be
recalled (section 17(3)).
Another feature of the regime which
affects the disordered offender and the civil patient alike is the power of the
responsible medical officer to grant leave of absence from the hospital for a
particular purpose or for a specified or indefinite period of time: subject
always to a power of recall (except as mentioned above).
There are certain differences
between the positions of the offender and of the civil patient, relating to
early access to the review Tribunal and to discharge by the patient’s
nearest relative, but these are of comparatively modest importance. In general, the offender is dealt with a
manner which appears, and is intended to be, humane by comparison with a custodial
sentence. A hospital order is not a
punishment. Questions of
retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is
not kept on any kind of leash by the court, as he is when he consents to a
probation order with a condition of inpatient treatment. The sole purpose of the order is to
ensure that the offender receives the medical care and attention which he needs
in the hope and expectation of course that the result will be to avoid the
commission by the offender of further criminal acts.””
48. We have, in addition, had regard to English
law. Articles 65 and 68 are similar
to most respects to Sections 37 and 41 of the Mental Health Act 1983. In the case of R v Vowles [2015]
EWCA Crim 45 the Court of Appeal of England and Wales held that:
“It is important to emphasise
that the judge must carefully consider all the evidence in each case and not,
as some of the early cases have suggested, feel circumscribed by the
psychiatric opinions. A judge might
therefore consider, where the condition in section 37(2)(a) are met, what is
the appropriate disposal. In
considering that wider question the matters to which a judge will invariably have to have
regard to include (1) the extent to which the offender needs treatment for the
mental disorder from which the offender suffers, (2) the extent to which the
offending is attributable to the mental disorder, (3) the extent to which
punishment is required and (4) the protection of the public including the
regime for deciding release and the regime after release.”
49. In R v Birch [1990] 11 Cr App R (S) 202
the Court of Appeal considered a situation where the sentencing court had
determined that a treatment order was the most appropriate method of disposing
of the case. The court said this:
“[The Judge] is required to
choose between the order without restrictions, which may enable the author of a
serious act of violence to be a liberty only a matter of months after he
appears in court, and a restriction order which may lead the offender to be
detained for a long time: longer in some cases than the period which he would
serve if sent to prison …. It is moreover a choice which depends on a
prognosis, the ultimate responsibility for which is left with the judge.
This responsibility may be hard to
discharge, since the judge will often have nothing on which to base his
decision, if he feels reservations about the medical evidence, apart from the
considerations stated by the statute, namely the nature of the offence and the
antecedents of the offender: which will often consist only of a single episode
of fatal violence and a blank criminal record. Where there is a trial the judge can
form an impression of the Defendant as the case unfolds which may enable him to
make his own assessment of his dangerousness. But in the more usual case where a plea
of guilty to manslaughter on the grounds of diminished responsibility is
accepted by the prosecution and the court, this opportunity is largely absent
…..
Nevertheless section 41(1) is there
and the judge must apply it. Quite
plainly the addition of the words “from serious harm” has greatly
curtailed the former jurisdiction to make a restriction order: most
particularly because the word “serious” rather than
“risk”. Thus the court
is required to assess not the seriousness of the risk that the Defendant will
re-offend but the risk that if he does so the public will suffer serious
harm. The harm in question need
not, in our view, be limited to personal injury. Nor need it relate to the public in
general, for it would in our judgment suffice if a category of persons, or even
a single person, were adjudged to be at risk: although the category of person
so protected would no doubt exclude the offender himself. Nevertheless, the potential harm must be
serious, and a high possibility of a recurrence of minor offences will no
longer be sufficient.
…………..
It would however be a mistake to
equate the seriousness of the offence with the probability that a restriction
order will be made. This is only
one of the factors which section 41(1) requires to be taken into account. A minor offence by a man who proves to
be mentally disordered and dangerous may properly leave him subject to a
restriction. In theory the converse
is also true. Courtney shows that a
serious offence committed by someone who is adjudged to have a very low risk of
re-offending may lead to an unrestricted hospital order.
………..
First, the sentence should not
impose a restriction order simply to mark the gravity of the offence (although
this is an element in the assessment of risk), nor as a means of punishment:
for a restriction order merely qualifies a hospital order and a hospital order
is not a mode of punishment.
Secondly, the observations of Lord Parker CL, in Gardiner as to the
imprudence in any but the most exceptional case of imprudence in any but the
most exceptional case of imposing a restriction for a fixed period rather than
for an unlimited period still hold good …..”
50. We do not, have the option of imposing a hybrid
order under which the Defendant could be sentenced to imprisonment coupled with
a direction to serve that sentence in an approved establishment. Such cases, pursuant to Article 67 of
the 2016 Law can be made only in cases of murder.
Conclusion
51. We note of course that the Defendant has no
previous convictions and therefore has the benefit of good character. We note his expressions of remorse which
we take to be genuine. He has also
the benefit of his guilty plea albeit it might be considered that such a plea
to murder or manslaughter in the alternative was an evitability in the
circumstances of this case.
52. Our decision-making was much aided by the fact
that the experts spoke with one voice.
It is entirely clear that the Defendant was suffering from a mental
disorder which requires specialist treatment. It was further entirely clear that he
would never receive that treatment in a prison setting and there would be a
material risk that if he were to remain in prison without treatment his mental
health would further deteriorate.
For these reasons we believed it to be appropriate to make an order in
the terms that we did and as referred to in paragraph 3 above.
53. This is a tragic case which not only has
resulted in the loss of a human life in the most awful circumstances but has
also in effect destroyed the Defendant’s life, possibly his career and
his wider family.
54. In the light of the fact that the Defendant
appears to harbour the hope, in our view, likely to be unrealistic in the
extreme, that in some way in the future he may secure a reconciliation with his
wider family, and the fact that he may see Mr Nisbet as an obstacle, we thought
it appropriate to make the restraining order that we did in the terms set out
above.
Authorities
AG v
Nisbet [2020] JRC 167
Mental Health (Jersey) Law 2016.
Crime (Disorderly Conduct and
Harassment) (Jersey) Law 2008 as amended by the Telecommunications (Amendment
No. 3) and Crime (Miscellaneous Provisions) (Jersey) Law 2016.
Medical Practitioners (Registration)
(Jersey) Law 1960.
AG
v Rzeszowski [2012] JRC 198.
AG
v Brown [2017] JRC 200.
Criminal Justice (Life Sentences)
(Jersey) Law 2014.
Sentencing Council Guidelines for
England and Wales.
C
v AG [2015] JCA 159.
AG
v Michel [2019] JRC 205.
Mental Health Act 1983.
R v Vowles [2015] EWCA Crim 45.
R v Birch [1990] 11 Cr App R (S) 202