A WINE thief who brandished a claw hammer was sent to prison, only to be dragged back into court and spared jail because she is transgender.

Leila Le Fey, 40, entered the Budgens store in Queen’s Road, Brighton, to steal the alcohol then threatened to hit manager Enoch Adetayo with the hammer when challenged.

At Lewes Crown Court yesterday, Judge Stephen Mooney jailed her for six months.

“When you took out the claw hammer it must have been terrifying,” he said.

He told her there was “no excuse” to wave the hammer and assault Mr Adetayo.

“It must be immediate custody because I see nothing in the offence itself or indeed in you that would render it unjust for me not to implement it,” the judge said.

But one hour after being sent down for six months in prison, Le Fey was brought back into court.

Her barrister Rebecca Upton said that because Le Fey did not have certified evidence of her gender reassignment, she would have to go to the male-only Lewes Prison.

Ms Upton also said prison regulations state she could not be kept in solitary confinement there.

She said Le Fey would be vulnerable in a male-only prison.

The only way Le Fey could prove her new gender would be an “undignified examination”, one which court staff were not prepared to do, Ms Upton said.

Judge Mooney said: “Issues have now arisen. You have heard why in those circumstances I came to the conclusion that I had to send you to prison. We live in a society which acknowledges and embraces diversity and allows and encourages people to live the life they want to.

“Sometimes society does not make the necessary or appropriate adjustments in all ways it can to reflect the adjustments of society as a whole.

“You chose to steal the wine, you chose not to put it back, you chose to brandish the hammer, but you have no choice as to how you will be deprived of your liberty.

“Deprivation of liberty itself is a punishment. But there are circumstances where it can be regarded as disproportionate in a society that acknowledges diversity, but has a lack of resources otherwise to deal with it.

“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.

“In light of this information I have come to the conclusion that in your particular case it allows me to hope for some form of rehabilitation.”

Earlier, Rowan Jenkins, prosecuting, said Le Fey went into the store at 4am on November 6 to steal the wine. Mr Adetayo took the wine off her and challenged her, at which point Le Fey pulled out the hammer from under her other arm. She tried to grab another bottle of wine and leave but police arrived and arrested her.

Ms Upton said her client has battled with drink and drug addictions and kept herself out of trouble since 2014 before a relapse last year.

Le Fey, of Providence Place, Brighton, who admitted common assault and possession of an offensive weapon, was given a six-month suspended sentence, with 30 rehabilitation sessions.