[2011]JRC075

ROYAL COURT

(Samedi Division)

8^th April 2011

The Attorney General

-v-

Hiram David Ballance

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

Age:  43.

Plea: Guilty.

Details of Offence:

During the course of an argument with his partner and whilst his partner was on her knees, the defendant sat on her back and pulled her head back by the hair and threatened to cut her throat.  His partner then stood up and he grabbed a kitchen knife with a 3” blade and came from behind and held the knife parallel to her neck albeit the blade side was pointing away from her.  Victim stated that she was scared, frightened and terrified.  Did not fear for life but did fear that the defendant would injure her.  The victim told the defendant to put the knife down when she heard their 6 year old daughter coming into the room.  The defendant was drunk at the time of the assault.

The Crown’s position was that defendants who use knives could, save for exceptional circumstances, expect a custodial sentence and that equally those who commit domestic violence could also expect custodial sentences.

Details of Mitigation:

The Crown

Guilty plea entered when matter still before Magistrate’s Court.  Co-operative.  Not of good character but criminal record dated and not relevant.  Had taken positive steps to address the underlying issue of his alcohol abuse.  Various letters and references in support including letters from the victim.  With the permission of the Court the defendant had returned to the family home on the Indictment date.

Defence

Prosecution’s summary of offence accepted.  No intent to harm.  No injury.  The defendant had no excuse for his behaviour.  Ashamed.  Alcohol precipitated incident.  Taken steps to address alcohol abuse.  Now abstinent.  Not prone to domestic violence.  Accepted it was a serious offence.  Already punished by separation from daughter/partner.  Co-operative with the Police.  Early guilty plea.  Positive letter of support from partner.  Custody would not benefit her or daughter.  The Court should have regard to the effect on victim.

Previous Convictions:

6 convictions for 18 offences, including offences of malicious damage, larceny, arson, possession of offensive weapon, motoring and public order.

Conclusions:

Sentence and Observations of Court:

This was a very frightening incident for the partner and daughter.  Whilst drunk the defendant picked up a knife in the course of an argument and made threats to cut her throat and then put the knife close to her face.  At her request the defendant had put the knife down.  She was entitled to protection in her own home.  The Crown had quite properly moved for a custodial sentence.  However there was very powerful mitigation which had persuaded the Court no to impose a custodial sentence.  Factors taken into account:-

1. No history of domestic violence – this was a significant factor.  It was, therefore, an isolated incident.

2. Defendant had taken steps to address alcohol abuse and the Court urged him to maintain the progress that he had made.

3. He had the powerful support of his partner who had requested not to send him to prison.  The defendant was now back at home.

4. Prison would be hard for the daughter who would miss the defendant’s company and she would have to leave her existing school.  The Court viewed this as an important factor.

5. No previous convictions for violence and no offences for 11 years.

6. Extremely remorseful, guilty plea, co-operated.

7. Positive recommendation from Probation Department.

8. Letters in support from others including the employer, etc.

The Court had borne in mind what it had previously said in the case of AG v Barwise [2009] JRC 182, and its normal policy for offences of domestic violence and knife crime.  However, the support of partner and the potential damage to daughter had just convinced the Court to agree with the Probation Officer.  Given clear warning as to consequences were he to re-offend or to breach the community service/probation order imposed.  If he did then little alternative but an immediate custodial sentence.

J. C. Gollop, Esq., Crown Advocate.

Advocate R. A. Leeuwenburg for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This must have been a very frightening incident for your partner, and for your daughter.  You were obviously drunk and in the course of an argument you picked up a knife and threatened her, putting the knife, albeit with the blunt side, close to her throat.  However you did put the knife down when your partner said that your daughter was coming back into the room and the incident then ended.  The Court has said on many occasions that knife crime will be severely punished and also that women are entitled to protection from domestic violence in their home.  The Crown has quite properly moved for a custodial sentence.

2.        However, there is very powerful mitigation in your case, which has been put forward very persuasively by Mr Leeuwenburg.  In the first place your partner confirms that there is no history of domestic violence.  That is a very significant factor.  If we had thought that you were somebody who was regularly abusive to your partner, we would have had no hesitation in imposing a prison sentence.  But this does appear to have been an isolated incident.  Secondly, and very importantly, you appear to have taken real steps to address your problem with alcohol and that too is important.  If you were to revert, we suspect that difficulties may arise in the future, so we urge you to maintain the progress you have been making in being abstinent and attending any necessary courses.  Thirdly, and again very importantly, you have powerful support from your partner and she has written an eloquent letter.  She has urged us not to send you to prison as you are now back in the matrimonial home and family life has been re-established.  Fourthly, she points out, in her letter, that imprisonment would be very hard, not just for her but for your daughter.  Not only would she miss your company, as her father, but she would have to leave her current school, where she is apparently extremely happy, because your partner could not afford the school fees without your income.  That is an important factor in our judgment.  Fifthly we note that you have no previous convictions for violence.  Although you have got some of a different nature many years ago, you have not committed any offences for 11 years and you appear to have come through that period of your life.  Sixthly, it is clear that you are extremely remorseful, we are satisfied of that from all the papers before us, you have pleaded guilty and you were extremely co-operative with the police.  Seventhly, there is a clear recommendation from the probation service that what would be best here is a probation order.  And eighthly, we have had regard to the various letters of support, not just from your partner but also from others, including your employer, and your employer clearly thinks highly of you; you have a very good work record and they are willing to support you in your attempt to remain abstinent as well as in other respects.  We hope very much you mean what you say about giving up alcohol and that you will maintain the progress you are currently making. 

3.        We have borne in mind the importance of protecting women from domestic violence, as set out in the cases of AG v Barwise [2009] JRC 182 and AG v Horn [2010] JRC 104 and the Court’s policy on knife crime.  The strong support of your partner, the points which she makes about the damage which would be caused to your family, including your daughter, if we were to imprison you, your determination to give up alcohol and the others matters referred to have just convinced us that we should agree with the recommendations of the probation service.

4.        We are not, therefore, going to send you to prison, but you must be punished and we are going to impose a sentence of community service as well as the probation order.  The sentence of the Court is that you serve 180 hours’ community service, which we say is the equivalent of 12 months’ imprisonment, and you will be placed on probation for 12 months.  This will enable you to follow the various courses which are referred to in the report, with a view to making sure that you do not re-offend.

5.        Now let me give you a warning.  If you were to re-offend, if you were to fail to carry out the community service, if you were to not do what the probation officer tells you, then you will be brought back.  At that stage there may well be little alternative but to an immediate prison sentence.

Authorities

AG v Barwise [2009] JRC 182.

AG v Horn [2010] JRC 104.