A conditional discharge was incorrectly given to a man who admitted coughing on police officers and claiming he had Covid-19, according to the Court of Appeal.

While an appeal panel also found that the Supreme Court subsequently erred in dismissing an appeal by prosecutors, they determined that in the circumstances it would be wrong to revert the matter back to Magistrates’ Court.

Taahir Augustus, from St George’s, was stopped by police on April 13, 2020, on suspicion of impaired driving following a road traffic accident.

At that time the island was under Covid-19 lockdown and five people had already died from the virus locally.

During an exchange with police, Mr Augustus coughed on two officers and told them he had the coronavirus, causing both officers to be placed in quarantine.

Mr Augustus was subsequently charged with serious assault, with a trial beginning in Magistrates’ Court in July 2022.

While he had initially denied the offence, he changed his plea to guilty after the Crown closed its case, and was given a conditional discharge by magistrate Maxanne Anderson.

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

In her ruling, Puisne Judge Shade Subair Williams said that Ms Anderson’s failure to state whether a conditional discharge would benefit the defendant and was in the public’s interest did constitute a “clear error of law”.

She added that, given all of the information the magistrate had received, she could not say she acted improperly and would not interfere with Ms Anderson’s decision.

However, in a judgment written by Court of Appeal President Sir Christopher Clarke, the higher court found that the Crown’s appeal should have been allowed.

“At the time when the offence was committed, which is the relevant time, the assaults which the respondent committed were serious,” the judge wrote.

“He was telling the police officers that he had Covid and taking steps which, if he had it, meant that there was a severe risk that he would infect them.

“At that stage, when vaccines were not generally available, such activity was both wicked and frightening.

“As the judge recognised, a conditional discharge in April 2020 would have been unimaginable and would have been met with widespread public outrage. And as the judge also recognised, subsequent events do not subtract from the seriousness of the offence committed.

“In those circumstances it would be entirely inapposite and contrary to principle that the respondent should receive, in effect, no penalty at all when, if he pleaded guilty at the earliest possible opportunity he would have been much more severely dealt with.

“He would, of course, have been able to pray in aid the fact that, as it turned out at the time, he did not actually have Covid and did not infect the officers with it.”

Sir Christopher added that it was also relevant that the reason Mr Augustus was not sentenced until July 2022 was that he only admitted the offence when the magistrate presiding over his trial determined that he had a case to answer.

As such, he said Mr Augustus deserved little credit for his late guilty plea.

However, in the circumstances, Sir Christopher said it would not be reasonable to now record a conviction against him.

“Whilst the lapse of time has not reduced the seriousness of the offence it seems to me inappropriate to remit the matter to the Magistrates’ Court, or to record a conviction but not to order any remission,” he wrote.

“The offence was committed nearly four years ago, the prosecution agreed that there should be conditional discharges, which the social inquiry report had invited the court to consider. Both the magistrate and the learned judge did so as well.

“A substantial time has passed since the respondent was initially sentenced and this appeal has primarily been brought to clarify points of principle.

“In those circumstances I do not think that recording a conviction is appropriate.”

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