Jersey Unreported Judgments

2000/86

6 pages

ROYAL COURT

(Samedi Division)

 

23^rd May, 2000

 

Before:    M. C. St.J Birt, Esq., Deputy Bailiff,

                 and Jurats Rumfitt, Tibbo.

 

 

The Attorney General

 

-v-

 

Mohammed Nafkha

 

1 count of grave and criminal assault.

Breach of a 3 year probation order with 100 hours community service made by the Royal Court on 16^th November, 1998.

                  (see Jersey Unreported Judgement of that date) following guilty plea to:

 

1 count of  supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978:

                  count 1: amphetamine sulphate.

1 count of  being concerned in an offer to supply a controlled drug contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978:

                  count 2: cannabis; and

2 counts of possession of a controlled drug contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law 1978:

                  count 3: cannabis resin.

                  count 4: amphetamine sulphate.

 

 

 

Age:    30.

 

Plea:   Guilty.  Breach of probation order admitted.

 

Details of Offence:

 

Defendant was at Dolphin Hotel on 18^th July, 1999, drinking with friends.  The victim, Stephen McEwan, happened by chance to enter the pub.  As he passed the defendant there was some kind of exchange but unclear whether verbal or physical.  As the victim walked away, the defendant struck him with a pint beer glass causing serious injury to his face, the deepest laceration required 28 stitches.  His ear lobe was almost entirely severed and an attempt was made to reattach it but it was not viable and resulted in the loss of part of the ear lobe.  There appeared to be some sort of "history" between the defendant and the victim but no direct evidence upon it.  The defendant accused the victim of attempting to punch him first:  the victim claimed he was only pointing at the defendant and perhaps this was mis-interpreted . Defendant indicted on 10^th December, 1999, and remanded for Assize trial commencing 10^th April, 2000.  Less than 10 days before the trial he changed his plea to guilty.  Defendant was in breach of 3 year probation order imposed in November 1998, in respect of drug trafficking offences.

 

Details of Mitigation:

 

Defendant claimed an element of provocation.  Guilty plea.  Lack of pre-meditation.  Remorse.  Spur of the moment assault and out of character.  Defendant had completed 75 hours out of the 100 hours community service.   However he re-offended only 8 months into a 3 year probation order.  Defence counsel urged the Court to depart from the authority of Graham -v- Attorney General (1^st October, 1996) Jersey Unreported, and asked the Court to apply a more mathematical calculation when exercising its discretion to set time spent on remand, and partially completed community service order, against custodial sentence moved for by the Crown in respect of breach of probation.

 

 

Previous Convictions:

 

8 previous Court appearances, mainly minor public order, nuisance and motoring offences but on  16^th November, 1998, was convicted of 4 counts relating to drug trafficking and placed on three years probation with 100 hours community service.  Defendant in breach of that order.

 

Conclusions:               2 ½ years' imprisonment.

 

                      Breach of probation order:

                      Count 1:   1 year's imprisonment.

                      Count 2:   10 months' imprisonment.

                      Count 3:   1 month's imprisonment.

                      Count 4:   1 month's imprisonment.

 

                      The sentences relating to the breach of the probation order to run concurrently with one another, but to follow      

                      consecutively the sentence on the present count.

                     

                      TOTAL:  3 ½ years' imprisonment.

                      Exclusion for 6 months' from licensed premises subsequent to his release.

 

                      The Crown informed the Court that consideration had been given by the Chief Immigration Officer to recommend deportation but taking into account that the defendant had two young sons aged 6 and 7, and the detrimental effect his deportation would have on their upbringing, the Chief Immigration Officer reluctantly felt obliged to give the defendant one last chance.

                     

Sentence & Observations of Court:

 

                      2 ½ years' imprisonment.

                     

                      Breach of probation order.

                      Count 1:   3 months' imprisonment.

                      Count 2:   3 months' imprisonment.

                      Count 3:   1 month's imprisonment.

                      Count 4:   1 months' imprisonment.

 

                     

                      The sentences relating to the breach of the probation order to run concurrently with one another, but to follow      

                      consecutively the sentence on the present count.

                     

                      TOTAL:  2 years' 9 months' imprisonment.

 

                      Exclusion Order of 6 months' from date of release in respect of 1^st and 7^th  category licensed premises.

 

 

                                                                             

 

 

                                                Mrs. S. Sharpe, Crown Advocate

                                         Advocate R. Tremoceiro for the Accused.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.         In this case whilst in a public house the defendant struck the victim on the side of the head whilst holding a pint glass in his hand.   It was a single blow but it caused a deep laceration to the left side of the victim's head and almost entirely severed his ear lobe.   Part of his ear lobe has been lost as a result.

 

2.         The Court accepts that there may have been some provocation.   The parties were known to each other and there had been a history of minor previous trouble.   On the day, there was a verbal altercation between them and there is some suggestion that the victim took a swing at the defendant immediately before the incident.   We are therefore prepared to sentence the defendant on the basis that there was an element of provocation.   However, whatever provocation there was,  was no justification for the attack which he carried out.

 

3.         In addition to provocation Mr. Tremoceiro relies on a number of other matters.   He refers to the guilty plea, although it must be pointed out that this came very late in the day - only ten days before the date fixed for the Assize trial.   The accused cannot therefore expect to receive the same credit for his guilty plea as he would have if he had pleaded guilty from the outset.   Nevertheless, he is entitled to credit for that plea.

 

4.         Secondly, it is said he has no record of violence, and that is correct. This offence was therefore out of character.

 

5.         Mr. Tremoceiro has emphasised that there was only one blow and that this was not a premeditated incident.   It occurred on the spur of the moment and there was no intention on the part of the defendant to cause the injuries which he did to the victim.   He did not realise that he had the beer mug in his hand as he struck the blow.  He is very remorseful for the injuries which have been caused and for the difficulties which he has caused for his family.  

 

6.         We have also been handed a number of references and letters of support.   We have read these carefully and they show that this defendant has much to offer, if he chooses.

 

7.         Mr. Tremoceiro has raised two other matters.  These relate to the fact that on 16^th November, 1998, the defendant was placed on probation for some offences of supplying and possession of drugs.   He was placed on probation for 3 years with an order that he perform 100 hours community service.   He has completed 75 of those hours, in other words some three quarters of the required community service.   The Crown has moved for an additional consecutive sentence of 12 months' imprisonment for the breach of the probation order,  having originally moved for a sentence of 16 months imprisonment at the time of the hearing in November, 1998.

 

8.         Mr. Tremoceiro has referred us to two English cases in connection with the amount of credit which should be given for community service which has been performed.   The first is R -v- Anderson (1982) Cr. App. R. (S) 252, where the accused had performed approximately two thirds of the community service in respect of earlier offences but was then appearing before the Court, and had been sentenced to a substantial term of imprisonment, for a subsequent offence.   The English Court of Appeal considered what, if any, consecutive order it should make in respect of the breach of community service, and the Court said this:

 

"The court which sentenced the appellant for those offences did not think it right to impose a custodial sentence and imposed a period of 180 hours' community service.   Of those, 126 hours had been worked, with some acceleration towards the end in view of the anticipated appearance in court on this particular occasion when the accused pleaded guilty to the offences of burglary and inflicting grievous bodily harm.   But the fact remains that over two-thirds of that community service order had been worked.  In all the circumstances and bearing in mind the substantial sentence of imprisonment which had been imposed in respect of the burglary and inflicting grievous bodily harm, the view of the Court is that it would not be right to impose any further sentence in respect of the breach of the community service order."

 

9.         In R -v- Cook (1985) Cr. App. R (S) 249, the English Court of Appeal followed the example set in R -v- Anderson. There the accused had completed some three-quarters of the community service and the Court said this:

 

"This must be a question of fact and degree in every case.   The point taken in the appeal of Martin Cook is that the facts there are somewhat parallel to those in Anderson (supra) and that it would be unfair to order the appellant to serve a further consecutive sentence of three months' imprisonment to that which was imposed for the handling of the jewellery.

We think there is force in that submission.   According to the social enquiry report, this appellant worked three quarters of the number of hours ordered, and apparently worked them well.   The Assistant Recorder in the Crown Court at Barnstable revoked the community service order, so it has gone.   We do not quash the sentence of three months' imprisonment imposed in lieu.  That may well be a reflection of the unworked part of the community service order.   But we think it would be right to order that that be served concurrently with whatever sentence of imprisonment is right."

 

In other words the Court there made the sentence concurrent with the subsequent sentence.

 

10.     Mr. Tremoceiro has urged that we should follow one of those two courses here in respect of the breach of probation.   We have carefully considered those cases but we have to say that we are not minded to follow them in this jurisdiction.   No reasons are given to support the conclusion of either court in those cases.   We think that each case must turn on its own facts but, in general, if an offender has not completed community service and is then sentenced to imprisonment for a new offence, we see no reason why the defendant should not receive a consecutive prison sentence to reflect the community service that he has not done.   Otherwise by re-offending he serves a lesser sentence than the Court originally thought he should for the original offence.   In addition, in this case, the defendant is, of course, in breach of a probation order intended to last three years.

 

11.     The second issue in relation to the breach of probation raised by Mr. Tremoceiro concerns the time spent on remand.   Before the sentence was imposed in November, 1998, the defendant served the equivalent of 6 months in custody.   Mr. Tremoceiro says that we should make an allowance for that and that the Crown has not made sufficient allowance.   In that connection the Court has had to consider the position and it gave a ruling in the case of Graham -v- A.G. (1^st October, 1996) Jersey Unreported, C.of A., where it reviewed the two different schools of thought to which Mr. Tremoceiro has referred us in relation to English authority.   The first school of thought says that a mathematical deduction should be made for the months spent on remand, whereas the second school of thought suggests there should be scope for more flexibility.   The Superior Number of the Royal Court resolved that conflict, so far as Jersey is concerned, in favour of the second principle when it said this:

 

"In the judgment of this Court the reasoning of the English Court of Appeal in MacKenzie is to be preferred.   It appears to us wrong effectively to overrule the provisions of the Criminal Proceedings (Computation of Sentences) Rules  by deciding that in the generality of cases a period equivalent to the period spent in custody on remand should be deducted.   The period spent on remand is a relevant consideration, but the extent to which  allowance should be made is a matter for the Court's discretion given the individual circumstances of the case in question."

 

12.     Taking into account both the amount of community service undertaken and the time spent on remand, we have come to the conclusion that there should be a deduction from the sentence moved for by the Crown in respect of the breach of probation.

 

13.     In relation to the count of grave and criminal assault we think that the conclusions are correct, even allowing for all the mitigation, and we therefore impose a sentence of 2 ½ years.

 

14.     In relation to the indictment for which you are in breach of probation we are going to reduce the conclusions and we sentence you to 3 months' imprisonment  on each of count 1 and count 2; 1 month's imprisonment on each of count 3 and count 4; all of those to be concurrent, but consecutive to the grave and criminal assault, in other words the total is 2 years' 9 months'. 

 

15.     We should mention two other matters.   First, we make an exclusion order for 6 months' to take effect from the date of release in respect of 1^st and 7^th category premises.

 

16.     Finally we refer to the question of deportation.   The Crown has shown us the correspondence and does not ask us to recommend deportation in this case.   However, we note that you were warned previously that should you re-offend you were at risk of being deported.   You have escaped deportation on this occasion but we wish to make it absolutely clear that should you re-offend in future it is then extremely likely that the Court will recommend deportation despite the fact that your children are here.   The onus lies on you:  you are at serious risk of deportation should you re-offend.

 

Authorities

 

A.G. -v- O'Sullivan & Bellamy (5^th September, 1997) Jersey Unreported.

A.G. -v- Parry & Parry (6^th February), 1998) Jersey Unreported.

A.G. -v- Swanston (19^th October, 1998) Jersey Unreported.

R -v- Mackenzie (1988) Cr. App. R. 299.

Graham -v- A.G. (1^st October, 1996) Jersey Unreported C.of A.

R -v- Anderson (1982) Cr. App. R (S) 252.

R -v- Cook (1985) Cr. App. R (S) 249.

A.G. -v- Norris (3^rd June 1992) Jersey Unreported.

A.G. -v- Little (17^th April, 1998) Jersey Unreported.

A.G. -v- McCaw (2^nd October, 1998) Jersey Unreported.

A.G. -v- Murphy (3^rd October, 1994) Jersey Unreported.

A.G. -v- Taylor (29^th July, 1994) Jersey Unreported.

A.G. -v- Jones (22^nd October, 1999) Jersey Unreported.

A.G. -v- Nafkha and others (16^th November, 1998) Jersey Unreported.