A judge has reversed his decision to jail a transgender woman who threatened a shop manager with a claw hammer as there was no way to confirm her gender.
Judge Stephen Mooney initially ordered Leila Le Fey, 40, to serve six months in prison.
His decision to jail her was supported by the fact she has 50 previous convictions, including two for possession of a knife.
But an hour later, the judge called her back to court and reversed his decision.
Instead he gave her a six-month suspended sentence, with 30 rehabilitation sessions, for common assault and possession of an offensive weapon.
In what is thought to be the first case of its kind, Judge Mooney had a change of heart after being told by defence barrister Rebecca Upton that Le Fey had completed gender reassignment.
However, she said her client would be forced to serve her sentence in a male-only prison because she does not hold a gender recognition certificate.
In the majority of cases, the Prison Service doesn’t recognise inmates who say they identify as the opposite gender to their birth unless they hold an official certificate, although there are exceptions. In guidance issued last month, the Prison Service said sending a criminal to a prison that does not match ‘their legal gender’ must be authorised by a complex case board.
Miss Upton said the only way Le Fey could prove her gender would be an ‘undignified examination’, which court staff were not prepared to do. She said her client could not be kept in solitary confinement and would be vulnerable if she had to mix with other inmates at the male-only Lewes Prison.
After hearing these submissions, Judge Mooney reversed his decision and said: ‘We live in a society which acknowledges and embraces diversity and allows and encourages people to live the life they want to. Having reflected again upon the impact an immediate custodial sentence would have, the difficulties there are and the intractable problems the Prison Service would face, I have reconsidered whether imprisonment must be immediate.’
The extraordinary change in sentencing took place in Lewes Crown Court in East Sussex on Wednesday. Le Fey’s original prison sentence had already appeared on a local news website by the time the judge changed his mind.
The court heard that Le Fey went into a Budgens store in her home city of Brighton to steal a bottle of wine at 4am on November 6. Shop manager Enoch Adetayo took the wine off her and challenged her, at which point Le Fey pulled out the hammer from under her other arm.
She then tried to grab another bottle of wine and leave but police arrived and arrested her.
In a statement to police, Mr Adetayo said: ‘The woman pulled a claw hammer out from under her left armpit. I believed she was going to hit me. I managed to grab it.’
In his first sentencing remarks, Judge Mooney told Le Fey: ‘It’s difficult to see why one might need to take a claw hammer into a convenience store.
‘You brandished it in a way which must have been terrifying. You were caught in the act of taking some wine and confronted by Mr Adetayo who was perfectly within his rights to challenge you.’
Judge Mooney was appointed as a Circuit Judge in April 2019. However in his short time in the post, he has already had one of his sentences reviewed and issued an apology following accusations he was too lenient.
The Attorney General reviewed a two-year suspended sentence he gave last October to two young men who bottled a Korean student in Brighton in October 2017. In January, Judge Mooney apologised ‘profusely’ and re-sentenced him to a three-year youth rehabilitation order with intensive supervision.
One in 50 male prisoners claims to be transgender – four times the number in the population as a whole – according to figures from the prisons official watchdog.
Transgender prisoners may be seen to gain extra privileges while inside. Inmates who identify as the opposite sex are allowed to shower alone.
© Daily Mail