Inferior Number Sentencing – grave and criminal assault.

[2012]JRC150B

Royal Court

(Samedi)

17 August 2012

The Attorney General

-v-

Axel Umlauft

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

Age:  46.

Plea: Guilty.

Details of Offence:

In May 2012, the defendant and the victim, a male aged 56, started to argue with each other whilst at the Shelter.  They were asked to leave and they continued their argument in Lewis Street.  They started to grapple.  Then the defendant forcibly pushed the victim with both hands causing him to fall to the ground where he lay in a pool of blood in what appeared to be a state of unconsciousness.  The defendant stood over the victim and was seen to deliberately punch the victim between three to seven times in the face.  An ambulance was called and the victim was taken to hospital where he was given antibiotics and steroids intravenously and treated for a deep laceration over his right eye.  The cut was sutured.  He also suffered a broken nose, swelling and bleeding and reduced air entry. 

The defendant was arrested nearby and after caution he admitted assaulting the victim and then made offensive racist comments about the victim.  In interview he readily admitted the assault but claimed that the victim had punched him first.  None of the witnesses observed the victim punching the defendant.  He displayed no remorse and blamed the victim. 

Details of Mitigation:

Early guilty plea; remorse expressed during the sentencing process.

Aggravating factors:

Both the victim and the defendant were heavily intoxicated, racially abusive towards the victim and lack of remorse shown at interview.

Previous Convictions:

The defendant has eight previous convictions in Jersey - six for larceny, one for malicious damage and one for drunk and disorderly.  The defendant also has a criminal record in Germany.  The most relevant matter is a conviction from 2001 for “intentional bodily harm coinciding with insult”. 

Conclusions:

Recommendation for deportation sought.

Exclusion Order sought for a period of 12 months taking effect from the date the defendant is released from prison, from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Jersey Arts Centre, the Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House. 

Sentence and Observations of Court:

The defendant had continued to punch the victim after causing him to fall to the ground by pushing him forcibly with both hands.  The victim was found unconscious and the defendant had calmly walked away.  In interview he had shown no remorse and was insulting to the victim.  There is a warrant out for his arrest in his native Germany.  He remained at high risk of offending and medium risk to harm to the public which increased to high risk when intoxicated.  It was accepted it was not premeditated but as a result of a loss of temper.  The Court referred to the passage in Passman and Ors and endorsed it.  The Court took into account the guilty plea, the background report and the fact that he had now expressed remorse.  Nonetheless this was a serious assault on a defenceless man. 

An application for a recommendation for deportation of the defendant, a German National, was not resisted.  The defendant had been unemployed since July 2009 and was claiming benefits.  He was now homeless having been informed by the Shelter that due to his behaviour towards staff and residents he is no longer welcome there.  Although he did not have an extensive list of previous convictions in the Island he has a criminal record and an outstanding warrant for his arrest in his native Germany.  All his family reside in Germany and he has very limited connections to the Island.  The Court, having taken into account the test in Camacho-v-AG, determined the defendant’s continued presence in the Island was detrimental and that the only effect under Article 8 would be on the defendant himself.  However, the defendant’s offending behaviour and the need to prevent further detriment to the Island outweighed any hardship suffered by the defendant.  The Court therefore recommended deportation. 

Conclusions granted.

Ms Sara O’Donnell., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE commissioner:

1.        Following an argument in the entrance to the Shelter the defendant, who was intoxicated, began to grapple with the victim, who was heavily intoxicated, and then proceeded to push the victim causing him to fall to the ground.  A witness heard a crack as the victim’s head hit the pavement.  The defendant was then seen to punch the victim some three to seven times in the face as he lay motionless on the ground.  He then calmly walked away.  The victim was found lying motionless on the ground in a pool of blood, apparently unconscious.  The victim suffered a deep laceration to his right eyebrow, a broken nose and an abrasion to his forehead.  The defendant had severe purple bruising and swelling to his right knuckles consistent with punching. 

2.        In interview with the police shortly after he showed no remorse and was racially abusive about the victim.  He showed no remorse at first when interviewed by the Probation Department for the purposes of the social enquiry report.  He has a previous record including a conviction for violence in Germany where there is a warrant for his arrest.  The defendant is assessed at a high risk of reoffending and a medium risk of harm to the public, unless intoxicated, in which case the risk increases to high. 

3.        The Crown have referred us to the factors set out in the case of Harrison-v-AG [2004] JLR 111 and seek a sentence of 2 years.  They referred us to the following passage in the case of AG-v-Passman and Ors [2007] JRC 230 as follows:-

“Notwithstanding the powerful mitigation put forward and the effect that custody will inevitably have on the defendants, the policy of the Court is clear and we wish to reiterate that alcohol fuelled violence on the streets of St Helier is unacceptable and will not be tolerated.  The Court has tried to make this policy clear on many occasions and it will continue to do so.”

4.        In terms of mitigation the defendant has pleaded guilty and he has now, through Ms Fogarty, expressed remorse and apologised for what he has done to the victim, who was a former friend of his.  We have considered the background report and everything said by Ms Fogarty but at the end of the day this was a serious assault on a defenceless man, probably unconscious on the floor, and therefore we agree with the conclusions of the Crown. 

5.        You are therefore sentenced to 2 years’ imprisonment.

6.        Turning to the issue of deportation the test to be applied, as Miss O’Donnell pointed out, is a two-fold test.  Firstly is the defendant’s continued presence detrimental to the Island.  If yes, then what will be the effect of his deportation on his family rights under Article 8 and of innocent persons connected to the defendant and indeed the defendant himself. 

7.        The defendant is a German national; he has committed an assault on a fellow user of the Shelter in a public place whilst intoxicated.  Although his criminal record in the Island is not extensive, he has a history of larceny and public order offences over the last three years. 

8.        We are informed by Miss O’Donnell that he has told the immigration officer that he has been continuously resident in Jersey since 2004 and has been unemployed for the last two years.  He apparently told the immigration officer that he intended to start his own business.  As Miss O’Donnell says, given that he admits to being alcohol dependant and appears to be destitute, unemployed and was living in the Shelter, the Crown does not regard this as a realistic plan and nor do we.  He is now rendered homeless because he is unable to return to the Shelter to live due to his threatening behaviour towards members of the staff and residents when under the influence of alcohol.  He does not appear to have any prospects of employment and has in fact been unemployed since July 2009 when he was signed off sick.  He has no obligation to seek work due to his being assessed at 40% capacity and he is wholly dependent on benefits.  Furthermore, as we have previously said, there is an outstanding warrant for his arrest in Germany.  The Crown therefore submits that his continued presence is detrimental to the Island and we agree. 

9.        Turning to the second part of the test, the defendant does not have any family in Jersey; he has two children with whom he does not have contact who live in Germany, as does his mother.  His connections therefore with the Island are limited.  The Crown submits in relation to Article 8 that any hardship suffered by the defendant is outweighed by the defendant’s offending behaviour and a need to prevent further detriment to the Island.  The Crown therefore submits that we should recommend the defendant’s deportation and we agree.  The application is not opposed by the defendant.  We therefore do recommend that he should be deported at the end of his sentence. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Harrison-v-AG [2004] JLR 111.

AG-v-Passman and Ors [2007] JRC 230.

Camacho-v-AG [2007] JLR 462.

AG-v-Norris [1992] JLR N 11c.