Inferior Number Sentencing – breach of the peace –
obstructing a police officer – grave and criminal assault –
malicious damage.
[2016]JRC131
Royal Court
(Samedi)
29 July 2016
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Before :
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J. A. Clyde-Smith, Esq.,
Commissioner, and Jurats Thomas and Ronge
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The Attorney General
-v-
E
Sentencing by the Inferior
Number of the Royal Court, following guilty pleas to the following charges:
First Indictment
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1 count of:
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Conduct likely to cause a breach of the
peace (Count 3).
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Second Indictment
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1 count of:
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Obstructing a police officer (Count 1).
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Third Indictment
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1 count of:
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Grave and criminal assault (Count 1).
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2 counts of:
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Malicious damage (Counts 2 and 3).
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Age: 23.
Plea: Guilty.
Details of Offence:
First Indictment: Count 3
The defendant had been in a
relationship for approximately 3 years with the mother of his then 2 year old
son. In July 2014 he had been
arrested for an offence of affray.
In September 2014 he was placed on probation and it was a specific
condition that he had no contact with his ex-partner. In breach of that condition he did have
contact and stayed at the victim’s home address. He became suspicious that she was having
a relationship with another male and was jealous. When the victim received a text on her
mobile the defendant tried to see who it was from. The victim bit the defendant’s
thumb so as to prevent him from taking her phone. The defendant picked up a large kitchen
knife, pointed it towards his own neck and threatened to harm himself. He accepted that he was engaging in
manipulative behaviour. When the
victim had left the flat he had followed her for a short period to see if she
was going to meet another man.
Later in the evening on the same day the victim and the defendant were
at the victim’s flat. He
started crying and became agitated.
He threatened to kill the victim and himself. The victim called the Police and when
the Police arrived the defendant ran away.
He was arrested 2 days later.
Second Indictment: Count 1
At 00.27 hours on 27th
November, 2015, police officers who had attended the Havana Nightclub in Bath
Street advised the door staff that they were having difficulty with a man at
the door. The officers spoke to the
defendant and asked him to leave the area.
It was noted that the defendant could hardly open his eyes. His eyes were glazed. He was staggering and off balance. He was drunk. He declined to move away and argued with
the officer. He was asked leave the
area. He refused to do so. He was given a lawful order and refused
and he was then arrested. This
offence was committed whilst he was on bail and was also in breach of a curfew
condition imposed on 3rd July, 2015.
Third Indictment
The victim had been out celebrating
his work’s Christmas lunch and he was walking home at approximately 22.00
hours. He described himself as
being drunk. He saw two Portuguese
males standing on a street corner.
He thought they were arguing.
As he walked past them he said words to the effect “Cheer up guys its Christmas”. He continued to walk towards his home
address and he recalls somebody approaching from behind but thereafter had
little recollection of what occurred.
His next recollection was being in hospital with a police officer
present.
CCTV footage showed the victim
walking past the defendant and another male. It then showed the defendant reacting in
an aggressive manner. The defendant
attempted to get at or pursue the victim.
Two other males were present who endeavoured to prevent the defendant
from getting at or pursuing the victim.
Despite the efforts of these other two men, the defendant was intent
upon pursuing the victim. He was
seen to break free and to follow the victim up the street out of view of the
camera. The defendant via his
counsel subsequently claimed that the victim made an offensive remark although
he could not remember precisely what was said. He claimed that he pursued the man to
remonstrate with him. There was no
independent evidence as to precisely what had been said but it was clear from
the CCTV footage that the defendant took great exception to what was said as he
pursued the victim with persistence and vigour.
The defendant’s position was
that having pursued and caught up with the victim it was the victim who
initiated the violence by punching him to the face causing him a fractured jaw.
The Crown accepted that the defendant
had sustained an injury to his jaw.
The Defence accepted that it was the defendant who approached the victim
and therefore it was entirely conceivable that the victim had interpreted the defendant’s
approach as threatening and had punched the defendant in self-defence.
Thereafter the combination of the
painful jaw, loss of temper and the disinhibiting effects of alcohol caused the
defendant to lose control and he pursued and attacked the victim as he
continued to walk up the street.
Eye witnesses then saw the defendant grab hold of the victim and push
him onto the bonnet of a Mercedes car.
The defendant persistently punched, kicked and kneed the victim as he lay
on the bonnet. The defendant was
wearing trainers. The victim was
thrown to the ground and was then kicked to the body and he was also punched to
the face a number of times. None of
the kicks landed on the victim’s head or face. The victim was then picked up by the defendant
and another male. The defendant
persisted in pursuing the victim. He punched him from behind to the head
and the body and then jumped on his back to pull him to the ground and wrapped
his arm around the victim’s neck.
The Police had been called and upon
hearing the approach of the Police vehicles the defendant let go of the victim
and left the area. He was subsequently
located and arrested (Count 1).
The owner of the Mercedes Benz the
following day noticed that a dent had been caused to the bonnet of her vehicle
which she subsequently had repaired at a cost of £75 (Count 2).
The defendant was taken to Police
Headquarters. Because somebody else
was being booked in to custody he was held in the cell of the police van. During this time he was aggressive and
agitated and he spat blood over the inside of the cell. He consistently kicked the cell door
damaging it to a total cost of £62.19 (Count 3).
The victim sustained a variety of
injuries particularly to his eyebrow, forehead and ear. He provided a Victim Personal Statement
for the Court at sentencing. The
assault had exacerbated a pre-existing anxiety condition and it had a detrimental
effect on his psychological wellbeing.
The offence was committed by the defendant
whilst on bail albeit he was not in breach of any specific bail condition.
The Crown applied the guidelines
provided by Harrison v AG and took a starting point of 3 years’
imprisonment.
Details of Mitigation:
The Crown
The defendant had little by way
of mitigation. He did not have the
advantage of either youth or good character. He had committed offences of a similar
nature. He expressed no remorse or
regret. Not guilty pleas had
initially been entered and guilty pleas only offered some 2 weeks before the
trial date. The defendant was
therefore not entitled to the full one third deduction: the Crown had made an
allowance of 25% for guilty pleas.
He was assessed at being high risk of violence and of general re-offending
together with alcohol and drug misuse.
The Defence
The Defence contended that age
was a relevant factor as he had only been 21/22 when the offences were
committed. Reliance placed upon the
reports before the Court in relation to his learning difficulties and low
intellect. Length of time earlier
serious offences hanging over his head which ultimately were not proceeded with
by the Crown caused him stress.
Previous issues with drugs and alcohol. Accepted by the Defence that alcohol was
involved in the grave and criminal assault etc.
Previous Convictions:
6 convictions for a total of 10
offences including common assault x 2, affray x 2, larceny, malicious damage
and breach of Probation Orders.
Conclusions:
First Indictment
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Count 3:
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2 months’ imprisonment.
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Second Indictment
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Count 1:
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1 month’s imprisonment, consecutive.
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Third Indictment
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Count 1:
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2 years’ imprisonment, consecutive.
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Count 2:
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1 month’s imprisonment, concurrent.
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Count 3:
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1 month’s imprisonment, concurrent.
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Total: 2 years and 3 months’
imprisonment.
Recommendation for deportation sought.
Sentence and Observations of Court:
The Court summarised
the offences. The grave and
criminal assault was the most serious offence. It was an unprovoked vicious assault on
the streets of St Helier pursued with purpose and vigour. The defendant had previous convictions
– he was at high risk of re-offending. The Court had listened carefully to the
mitigation. Noted his guilty plea
albeit late, stress of the proceedings and relative youth. The Court also noted his troubled
upbringing and low intellect.
However this was a very serious assault. It was unprovoked, pursued with real
purpose and vigour causing injuries to the victim and psychological impact. The Court repeated the observations
previously made in AG v Cummings.
The Court’s view
was that the starting point was too low and increased it to 3 years’ 6
months. The Court also considered
the final sentence of 2 years to be too low. It also viewed the obstruction of police
officers as a more serious offence than the breach of the peace. Due to totality, the Court agreed that
those offences should be concurrent with each other.
The recommendation for
deportation was adjourned for a date to be fixed as the Court requested further
information to be obtained before considering the application.
First Indictment
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Count 3:
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1 month’s imprisonment.
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Second Indictment
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Count 1:
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2 months’ imprisonment, concurrent.
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Third Indictment
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Count 1:
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2 years’ and 3 months’
imprisonment, consecutive.
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Count 2:
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1 month’s imprisonment, concurrent.
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Count 3:
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1 month’s imprisonment, concurrent.
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Total: 2 years and 5
months’ imprisonment.
The recommendation for
deportation was adjourned for a date to be
fixed as the Court requested further information to be obtained
before considering the application.
J. C. Gollop, Esq.,
Crown Advocate.
Advocate NP. S. Landick
for the Defendant.
JUDGMENT
THE commissioner:
1.
The
defendant stands to be sentenced under the First Indictment for a breach of the
peace, committed in the house of his former partner on 27th October,
2014, committed in breach of the terms of an earlier Probation Order; under the
Second Indictment for obstructing the police outside the Havana Nightclub on 23rd
November, 2015, committed whilst on bail and in breach of a bail condition; and
under the Third Indictment for grave and criminal assault and malicious damage,
also committed whilst on bail.
2.
The grave
and criminal assault is the most serious of the offences, being described by
the prosecution as an unprovoked and vicious assault on the streets of St
Helier, which was pursued with real purpose and vigour. The defendant claims that the victim,
who passed him in the street and was wholly unknown to him, said something
offensive but he cannot recall what was said. The victim denies having said anything
offensive or provocative. As the
prosecution say, even if the victim did say something provocative, it would not
have justified the defendant’s subsequent conduct. Although the defendant received a punch
to his jaw in the early part of the incident the evidence shows that at no time
was the victim seen to act in an aggressive or violent manner.
3.
The
defendant has previous convictions for public order offences and is assessed at
a high risk of reoffending. The
prosecution submit that a starting point of 3 years is appropriate for the
grave and criminal assault but only allowing a 25% reduction for the guilty
pleas, which were proffered some short time before the trial in relation to the
grave and criminal assault.
4.
The
prosecution say there is little other mitigation. The defendant is not of good character,
is now age 23 and has shown no remorse or regret. And the prosecution move therefore for a
sentence of 2 years for the grave and criminal assault, 2 months consecutive
for the breach of peace, and 1 month, consecutive for the obstruction, making a
total of 2 years and 3 months’.
5.
In terms
of mitigation we have listened carefully to everything put forward, if we may
say so, very thoroughly, by Advocate Landick on
behalf of the defendant; in particular and in summary, the guilty pleas, albeit
late in relation to the grave and criminal assault, the stress of the
proceedings, his relative youth, he was 21 and 22 when the first two offences
were committed, his troubled early background, and his intellectual
impairment. However, this was a
very serious assault which we agree was unprovoked and which we agree was
pursued with real purpose and vigour, causing the physical injuries, set out in
the doctor’s report and the psychological impact upon the victim made
clear by his statement.
6.
As the
Court has said repeatedly and as was said in AG-v-Cummings [2006] JRC
070:-
“…those who commit
violence in public places in St Helier particularly if they use weapons (but the weapon is not necessarily going to reflect
that policy) will face substantial sentences. There is too much violence in Jersey,
often fuelled by drink and the Court is determined to try and send a message
that such matters will not be accepted.”
7.
In our
view the starting point is too low and we would increase it to 3 years and 6
months. The final sentences sought
are also too low. We also take the
view that the obstruction of the police officer was a more serious offence than
the breach of the peace, although in the light of the totality principle we are
going to make those two sentences concurrent to each other.
8.
On the
First Indictment, Count 3, conduct likely to cause a breach of the peace, you
are sentenced to 1 month’s imprisonment. On the Second Indictment, Count 1, obstructing
a police officer, you are sentenced to 2 months’ imprisonment,
concurrent. Under the Third
Indictment, Count 1, grave and criminal assault, you are sentenced to 2 years
and 3 months’ imprisonment, consecutive to the earlier counts. On Count, malicious damage, you are
sentenced to 1 month’s imprisonment, concurrent to the earlier counts,
and on Count 3, malicious damage, you are sentenced to 1 month’,
imprisonment, concurrent to the earlier counts, making a total sentence of 2
years and 5 months’ imprisonment.
9.
In terms
of the issue of deportation the Court is of the view that we do not have enough
information, in particular to consider the effect of Article 8 of the
Convention on the defendant’s child, his former partner and mother. We are therefore going to adjourn this
part of the case to a date to be fixed by counsel before this Court, as
presently constituted, firstly, for a report to be commissioned by the
prosecution from the Children’s Department in relation to the child and
the effect of deportation on that child and secondly, for the appointment of a
lawyer, payable out of the legal aid vote, to take a statement from the
defendant’s former partner and from his mother on the issue of the
defendant’s possible deportation and their Article 8 Convention
rights. The task of the lawyer will
be limited to obtaining those statements for the Court but not to otherwise
attend at the adjourned hearing. If
either the mother or the former partner wish to be heard at the adjourned
hearing (they must, of course, be informed of its date) they can attend
personally to make that application or they can apply for legal aid to make
that application through a lawyer.
Authorities
AG-v-Cummings
[2006] JRC 070.
Harrison-v-AG
[2004] JLR 111.
Camacho-v-AG
[2007] JLR 462.
Secretary of State
for the Home Department-v-CT (Vietnam) [2016] EWCA Civ
488.