Appeal on "strict and severe" sentence is dismissed

Thursday 15 October 2020

A prisoner, who was sentenced to an extra nine months behind bars for deliberately coughing in the face of a prison officer, has attempted to appeal his sentence, claiming it was "excessive".

Sean Allen, 37, was already serving a six month sentence for assaulting a police officer and racially abusing three men, when he committed the most recent offence.

It took place on 1 July, when he had gone to collect his medication from the prison officer.

Following routine, she asked him to open his mouth so she could be sure he had taken his tablet and wasn't hiding it, but he refused and fake coughed in her face multiple times.

Following the incident, the prison officer wiped her face with an alcohol wipe and had to undergo tests for a number of different illnesses, including hepatitis. The results came back clear.

Pictured: The victim had to be tested for a number of illnesses, including hepatitis B.

Judge Graeme McKerrell heard the case in the Magistrate's Court last month and sentenced Allen to nine months in prison, consecutive to the sentence he is currently serving.

However, the defendant chose to appeal the sentence in the Royal Court, before Judge Russell Finch and the Jurats.

"This was not a 'caught red-handed' case," Defence Advocate Sam Steel told the court. "Mr Allen could have argued the cough was involuntary - he wouldn't be the first to do so.

"It may be that coughing is deemed more dangerous during the covid pandemic, but no viruses were transmitted and Mr Allen voluntarily cooperated with tests. He did all that could be expected of him after the event.

"Mr Allen didn't intend to make the victim fear that he would pass on covid or any other disease."

Pictured: Guernsey had no known cases of covid at the time. 

At the time of the offence, Guernsey had no active cases of covid-19 and no known cases had been reported in the prison.

"I ask the court whether the background of the covid pandemic has aggravated this case more than it ought to have," Advocate Steel added.

However, Crown Advocate Rory Calderwood argued that the pandemic is an aggravating factor.

"We are living through something we thought we would never have to live through and we're all much more aware of hygiene," he said. "It is aggravating in the current climate.

"Mr Allen would not know if he was clear of any disease because some people are asymptomatic and it's creating fear."

Pictured: The defendant's appeal was heard in the Royal Court.

Advocate Calderwood said the fact that the victim is a public servant was another aggravating factor, along with the defendant's list of previous convictions.

"Previous convictions can literally be the difference between a caution and prison," he reminded the court. "You're not just sentencing the facts, you're also sentencing the man."

The final aggravating factor for Advocate Calderwood was the lack of remorse Allen showed. He referred to a phone call the defendant took in the hours after the offence, during which he admitted it, adding "she's lucky I didn't spit in her face."

Although the fact that the assault caused no injury could be seen as a mitigating factor, Advocate Calderwood said it was somewhat of a "red herring".

Pictured: The defendant admitted the assault whilst on a phone call. 

"It's not just about the physical assault in this case, it's also about the feeling and the emotion," he said.

Judge Finch and the Jurats noted the victim's statement, in which she said she felt "vile" following the incident.

"It was dirty," she added. "I felt stressed out and angry."

Although Judge Finch accepted that the sentence given was "indeed a strict and severe one", he said it was made in line with the offence committed and the aggravating factors.

He and the Jurats dismissed the appeal.