A conditional discharge for a man who admitted coughing on police and declaring he had Covid-19 was “unduly lenient”, an appeal in the Supreme Court was told.

Taahir Augustus, 26, pleaded guilty in Magistrates’ Court to two counts of assault in connection with the incident in 2020.

Prosecutors argued in the Supreme Court that the penalty was wrong in law and unduly lenient, noting that now senior magistrate Maxanne Anderson did not give reasons for her sentence.

Cindy Clarke, the Director of Public Prosecutions, said: “It is clear from the record that the magistrate failed to take into consideration the context in which this assault arose.

“We were in a very different place with respect to Covid.”

She added: “There were nightly presentations from the minister being very descriptive on how they expected 700 people to die from this virus.

“We had to shut down the courts. We were having remote court hearings. It was a very serious time for this type of offence.”

Magistrates’ Court had heard that on April 13, 2020, in the midst of the shelter in place order, Augustus was involved in a road traffic collision on The Lane in Paget.

Officers subsequently arrested Augustus on suspicion of driving while impaired by alcohol and failing to provide police with a breath sample.

During the interaction with police, Augustus coughed on two officers and told them he had “the coronavirus”.

Both officers were subsequently placed in quarantine.

Ms Clarke said that a trial over the allegations started, but Augustus pleaded guilty last year after the Crown closed its case.

A social inquiry report and a drug assessment were carried out before Ms Anderson sentenced Augustus to a conditional discharge last year.

Ms Clarke acknowledged that the prosecutor who handled the case in the lower court had said a conditional discharge would be appropriate, but argued that the court was not bound to the submissions by a prosecutor if it is wrong in law.

She said the maximum sentence for the offence was three years behind bars and a fine of up to $3,000 and, although Augustus had no previous convictions, the timing of his admission meant he could not receive a full discount for his guilty plea.

While Ms Clarke called on the court to sentence Augustus to between three and six months behind bars, she said that given the time that had elapsed any sentence should be suspended for two years.

“I am more concerned, if I am being honest, with a pronouncement from this court that a discharge in these circumstances is inappropriate,” she said.

Ms Clarke said the magistrate had “overlooked or undervalued” some of the features of the case and the sentence did not reflect the feelings of society towards the offence.

Jonathan White, counsel for Augustus, said that while it was unfortunate the magistrate did not provide reasons for her sentence, the Crown counsel had told the court at the time that the discharge was appropriate.

He also noted that the magistrate had the advantage of hearing all of the prosecution’s evidence before she delivered her sentence.

“We accept that on its face this disposition of a conditional discharge in respect to these two counts is lenient, and perhaps very lenient. However, we would submit that it’s not manifestly inadequate,” Mr White said.

“The senior magistrate had a glowing social inquiry report before her and also, uniquely, had the benefit of hearing the Crown’s case.

“The sentencing magistrate was in a very unique and well-equipped position to pass an appropriate disposition.”

He said during the trial it was highlighted that Augustus voluntarily stayed at the police station longer than necessary so Covid-19 testing could be carried out in an effort to mitigate any anxiety or harm caused to the officers.

“He spent a significant amount of time in the station for the purpose of ensuring those results were back and negative,” Mr White said.

He added it would be “inequitable” to resentence Augustus in all of the circumstances.

Puisne Judge Shade Subair Williams reserved her judgment on the matter until a later date.

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