Jersey Unreported Judgments

2000/87

10 pages

ROYAL COURT

(Samedi Division)

 

24^th May, 2000

 

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

Jurats du Veulle, Myles, Le Ruez, Rumfitt,

Quérée, Le Breton and Georgelin

 

 

The Attorney General

 

-v-

 

Jason Robert Mallet

 

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded on 18^th February, 2000, by the Inferior Number, following a guilty plea to the following counts:

 

First Indictment:

 

1 count of larceny (count 1);

1 count of resisting police officers in the execution of their duty (count 2);

1 count of breaking and entry and larceny (count 3).

 

Second Indictment:

 

2 counts of grave and criminal assault (counts 1 & 2).

 

Age:   30.

 

Details of Offences:

 

Larceny: stole a wallet in a nightclub and then resisted arrest; days later, while on bail, committed 'smash and grab' and took £130 worth of clothing.  That same night the accused attacked a stranger who happened to be sleeping at the flat which the accused shared with others.  The accused punched the victim repeatedly, hit him with a hairdryer and threw him naked from the flat.  After a brief delay the accused went outside and stabbed the victim repeatedly with a kitchen knife causing ten puncture wounds.  The injuries did not require stitching and the victim was discharged from hospital after two days.

 

Details of Mitigation:

 

As to the assaults, the accused said that he reacted in uncontrolled rage in response to a homosexual advance made by the victim while the accused had been asleep in bed.  He had awoken to find the advance being made.  There was a counter allegation of the same kind by the victim, but he subsequently withdrew his formal complaint of indecent assault.  Accused sentenced on his version.

 

Previous Convictions:   Many for dishonesty; some for violence.

 

Conclusions:

 

First Indictment:

 

Count 1: 1 month's imprisonment:

Count 2: 2 months' imprisonment, consecutive;

Count 3: 10 months' imprisonment, consecutive;

TOTAL:  13 months' imprisonment.

 

Second Indictment:

 

Count 1: 15 months' imprisonment, concurrent, with sentences passed on first indictment;

Count 2: 2 years 9 months' imprisonment, concurrent with count 1, but consecutive to sentences passed on first indictment.

 

TOTAL SENTENCE: 3 years 10 months' imprisonment.

 

Sentence and Observations of the Court:

 

First Indictment:

 

Count 1: 1 month's imprisonment;

Count 2: 2 months' imprisonment, concurrent;

Count 3: 6 months' imprisonment, concurrent.

TOTAL: 6 months' imprisonment.

 

Second Indictment:

 

Count 1: 15 months' imprisonment;

Count 2: 4 years' imprisonment, concurrent with count 1, but consecutive to sentences passed on first indictment.

 

TOTAL SENTENCE: 4½ years' imprisonment.

 

Sentencing for grave and criminal assault based on starting points within a 3-5 year band was an inappropriate practice which had developed per incuriam.  There should be a return to the gradations identified in the 2^nd  edition of Principles of Sentencing pp.93-99; it was particularly to be recalled that the sentences identified there were "finishing points" after mitigation, and not 'starting points'.

 

C.E. Whelan, Esq., Crown Advocate;

Advocate C.R.G. Deacon for the accused.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.             This matter came before the Inferior Number of the Royal Court for sentencing on 4th May.  As we have heard, it arises out of an incident where the defendant stabbed the victim with a kitchen knife some ten times, although fortunately, the injuries were not too serious.  The Crown moved for a sentence of two years and nine months on that offence with consecutive sentences for some unrelated offences of dishonesty.  The case came before the Court a matter of days after the case of A.G. -v- Leitch (28th April 2000) Jersey Unreported where a man who had been ejected from a public house went home to get two knives and then returned to the public house.  When asked to leave once again, he took out a knife and raised his arm as if to stab the licensee.  The licensee managed to grab the defendant's arm so as to prevent the blow from falling and others then restrained him.  No contact was made by the knife and there were no injuries.  On that occasion, the Crown moved for 4 years' imprisonment although the Court reduced this to 3½ years.

 

2.             The Inferior Number had some difficulty in reconciling the sentences moved for in the two cases.  In addition, it became clear that a number of issues arose as to the correct application of the leading case of A.G. -v- Norris (3^rd June, 1992) Jersey Unreported.  Accordingly, the Inferior Number remitted the matter to the Superior Number for its consideration. 

 

3.             We have today heard detailed submissions from Crown Advocate Whelan which set out the development of the sentencing policy of the Court in relation to grave and criminal assault.   The Court is much indebted to Mr. Whelan.  Two issues of principle have arisen before we can turn to the facts of this case.  The first issue is whether the guideline figures in Norris are starting points or finishing points.  The second is whether the figures have been interpreted in too restrictive a manner. 

 

4.             In Norris, the Court said this:-

 

"In cases of this nature, the principles of sentencing practice in England are not so far removed from our own that we should not have proper regard to them.  The offence of inflicting grievous bodily harm is not all that different from that of a grave and criminal assault. 

 

Accordingly, we are prepared to say that in cases of this gravity a proper benchmark is between 3 and 5 years, depending on the circumstances".

 

5.             That approach was confirmed by the Court of Appeal, (28th September 1992) Jersey Unreported.  The Court of Appeal also endorsed a quotation from Thomas: Principles of Sentencing (2nd Edition) when he said at p 95:-

 

"Within the bracket of 3 to 5 years' imprisonment, sentence will vary according to such factors as the nature of the weapon used, the degree of the injury intended, the actual injury inflicted and the degree of provocation, if any."

 

6.             It is quite clear that both Courts in Norris fixed the benchmark by reference to pages 93-99 of Thomas: Principles of Sentencing (2nd Edition), which was cited to them.  It is equally clear that, in that section, Professor Thomas is referring to sentences actually passed by the Courts, rather than to notional starting points.  The section is dealing with sentences imposed for offences of wounding or causing grievous bodily harm with intent.  He begins by saying, at page 93:-

 

"The scale of fixed-term sentences of imprisonment extends from about 3 years to an upper limit of about 12 years' imprisonment."

 

7.             He then goes on to deal with four broad categories of sentencing levels.  In relation to the first category, he says at p.93:-

 

"Sentences shorter than 3 years will normally be found only where unusually strong mitigating factors are present, or where the facts of the offence, while satisfying the formal requirements of the definition, do not fall within the usual pattern."

 

He then goes on to refer to examples which support this suggestion and he does this by reference to the sentences actually passed in the various cases. 

 

8.             He then moves on to the second category at p.94, when he says:-

 

"Cases such as these (by which he means the first category) can probably be regarded as exceptional, and more commonly, an impulsive act of violence involving the use of a weapon or the intent to inflict serious injury will attract a sentence within the bracket of 3 to 5 years."

 

The wording clearly relates to the actual sentence imposed and that is confirmed by the examples which he gives to support his proposition.

 

9.             He then turns to the third category by saying:-

 

"The next range of sentences, from 5 up to 8 years' imprisonment, is reserved for cases exhibiting a combination of aggravating features".

 

Again, reference to the narrative which follows shows that he is considering the sentence actually passed.

 

10.         Finally, he turns to the fourth category, when he says:-

 

"Sentences above the level of 8 years' imprisonment are upheld in relatively few cases, usually where grave injuries are deliberately inflicted in the course of some otherwise criminal purpose, such as robbery or blackmail."

 

Again, he then refers to the sentences actually passed in various cases. 

 

11.         The Court is quite satisfied that, throughout this section, Professor Thomas is speaking of the final sentence passed by the court, i.e. the finishing point and not the notional starting point before mitigation. 

 

12.         In Norris, the Royal Court adopted the second of these categories (namely 3 to 5 years) as the benchmark for cases of the gravity of Norris.  We have no doubt that the Royal Court and the Court of Appeal intended the bracket to be interpreted in the same way as it was used by Professor Thomas.  If they had meant it to bear some other meaning, we have no doubt that they would have said so.

 

13.         The first suggestion that the 3 to 5 year figure might be a starting point, rather than a finishing point, was in Whelan: Aspects of Sentencing in the Superior Courts of Jersey, published in 1994.  Having considered the cases which had followed Norris, he said at p.93 of that work:-

 

                  "It is possible to argue for the following interpretation of Norris and of the subsequent cases in which it has been applied:  that the Superior Number's use of the expression 'benchmarks' in that case is synonymous with the expression 'starting point, so that Norris identifies a 3 to 5 year band at a point within which it will be possible to fix a starting point depending upon the circumstances, e.g. use of/nature of weapon, the severity of the attack, (e.g. kicking), the nature of the injuries inflicted, the degree of deliberation.  From that point, mitigation under the standard heads (including provocation) is considered and, if available, applied to effect a reduction from the starting point."

 

14.        By 1996, the author had had second thoughts.  In his Noter Up May 1995 - May 1996, after a thorough review of the cases of grave and criminal assault which had come before the Court during that period, he said this:-

 

                  "It is to be recalled that Norris and its underlying English sources are, most closely, concerned with cases in which a weapon (including e.g. a shod foot) have (sic) been used.  The band of 3 - 5 years applicable in such cases refers to sentences actually to be imposed, i.e. sentences resulting after mitigation has been allowed (see the original references in Thomas, 2nd Edition, pp 93-99).  It should not, therefore, be usual to see a case involving use of a weapon taken down to less than three years as a result of mitigation."

 

15.        In our judgment, that was a correct interpretation of Norris and of Professor Thomas' work. 

 

16.        In 1997, the case of Evans and Phillips -v- A.G. (1997) JLR 94 came before the Court of Appeal.  Having quoted the 1994 extract from Whelan referred to above, the Court of Appeal said this at p.111:-

 

                  "Lest there be any doubt, we agree with this interpretation of the expression "benchmark".  It follows that in this case, the starting point for sentence was between 3 and 5 years".

 

17.        The Court then allowed for mitigation and refused leave to appeal against a sentence of 12 months for a grave and criminal assault by Phillips. 

 

18.        The judgment of the Court of Appeal gives no indication that the matter had been the subject of argument.  The commentary in the 1996 Noter Up (which was at variance with the 1994 commentary) was not cited to the Court of Appeal;  nor were the relevant chapters from Thomas.

 

19.        The effect of the Court of Appeal's decision is startling.  It means that sentences for assaults of the same severity are likely to be considerably more leniently dealt with in Jersey than in England, because the 3 to 5 year figure is the actual sentence in England, whereas it is only a starting point in Jersey from which deduction has to be made for mitigation.  Assuming a guilty plea and other matters, this may in some cases be as much as 50%.  We do not believe that it was the intention of the Royal Court or the Court of Appeal in Norris that sentences in Jersey should be at a lower level than in England.  Furthermore, we find it inconceivable that the Royal Court and the Court of Appeal intended anything other than to adopt the bracket described by Professor Thomas on the same basis that he had used, (i.e, the finishing point).  It would be extraordinary for the Court to adopt a figure from Professor Thomas' work, but intend that it should mean something different (i.e. a starting point) without explaining this. 

 

20.        We have come to the respectful but clear conclusion that the decision of the Court of Appeal in Phillips and Evans was reached per incuriam.  It was reached without argument and without having the relevant texts cited to it.  On the contrary, the only relevant text cited to it was the erroneous passage in the 1994 edition of Whelan.  We are confident that, had the relevant extracts from Thomas been cited to the Court of Appeal, it would not have held that the 3 to 5 year figures referred to in Norris were starting points rather than finishing points.  We hold that the 3 to 5 year bracket referred to in Norris is to be regarded as a guideline for sentences actually to be passed, not as a notional starting point.

 

21.        Quite apart from the question of the correct interpretation of Norris, this Court has considerable reservations about the desirability of using defined starting points in cases of grave and criminal assault.  The procedure is useful in drug cases where the variables in relation to the offence are quite limited, e.g. the quantity of the drug and the nature of the activity undertaken.  In cases of grave and criminal assault, the circumstances can vary almost infinitely and no two cases are exactly alike.   The Court does not use the fixed starting point mechanism for any category of offence other than drug trafficking and, since Phillips and Evans, grave and criminal assault.  We are not convinced that offences of grave and criminal assault should be dealt with any differently in this respect to offences such as rape, breaking and entering and other offences of dishonesty.  Furthermore, looking at the reports of English cases, we do not believe that the English courts use the procedure of defining a starting point for any category of offence. 

 

22.        In our judgment, the better solution is to try and fix on the right final figure for sentence, taking account of all the circumstances of the case, including any aggravating and mitigating factors, both in relation to the offence and the offender.  It will sometimes be useful on a guilty plea for the court to ask itself what it would have given after a contested trial in order to ensure that sufficient credit has been given for a guilty plea, and we have noted that in some, (albeit few) cases in England, this comparative figure is referred to in the judgment.

 

23.        We turn now to the second issue.  It is the Court's impression that Norris has been taken as a guideline for any offence of grave and criminal assault and that all such cases must be dealt with accordingly.  In our judgment, that is an incorrect interpretation of Norris.  The extracts which we have quoted from Thomas show that, even in relation to the offence of wounding or causing grievous bodily harm with intent, sentences varied from below 3 years up to 12 years.  Thomas notionally divided that into four bands, but in reality they are but one continuum of increasing severity. 

 

24.        In the United Kingdom, there are a number of different offences in relation to violence starting with assault and moving through a number of different categories to wounding or causing grievous bodily harm with intent.  In Jersey, we have but two offences, namely assault and grave and criminal assault.  Grave and criminal assault therefore covers a very wide spectrum of offence, ranging from something which is only just above common assault to something which is just short of attempted murder.  It follows that the sentencing levels will vary to reflect this.  The sentencing levels must cover all the bands referred to by Professor Thomas and more, because the offence of grave and criminal assault covers a wider spectrum than the offence which was being considered by Professor Thomas.   One can therefore expect to find sentences of less than three years in cases of the least gravity.  Similarly, one can expect to find sentences in excess of 5 years for cases of greater gravity. 

 

25.        One must remind oneself of what was actually said by the Royal Court in Norris.  It said this:-

 

                  "In cases of this gravity a proper benchmark is between 3 and 5 years." (emphasis added). 

 

26.        The Court must have been aware of the various bands described by Professor Thomas and was selecting one of these for the particular case with which it was dealing.  In our judgment, the Court was saying no more than that, in cases of the gravity of the facts of the offence in Norris, a proper benchmark was between 3 and 5 years.  In other words, the Court should look at the facts of the case before it.  If it is a case of broadly similar seriousness to the facts of Norris, one would expect to end up with a sentence in the 3 to 5 year bracket.  If it is a more serious case, one would expect to end up with a higher figure;  if less serious, with a lower figure. 

 

27.        The Court must always bear in mind that these are only guidelines.  They are not to be treated as a straitjacket.  The circumstances surrounding a grave and criminal assault can vary considerably.  The available mitigation also varies enormously.  Ultimately, the Court is sentencing for a particular offence of grave and criminal assault, taking into account the aggravating and mitigating features of the case and the circumstances of the offender.  Other cases, whilst useful as a check for ensuring that the Court is in roughly the right area of sentencing, are not precedents and sentencing is not to proceed by a detailed comparison with the facts of other cases.  The Court must decide where, in the spectrum from the least to the most serious, the various factors place the particular case before it.

 

28.        We should add that the decision in A.G. -v- Douglas (21^st December, 1999) Jersey Unreported, that the bracket should henceforth be 3 - 7 years rather than 3 - 5 years, was made in the context of the decision in Evans and Phillips that the figures were starting points.  If the views which we have expressed above, namely that the figures are finishing points and that the 3 - 5 year bracket is not to be regarded as too rigid or all-embracing are accepted, a case such as Douglas can be dealt with by a simple finding that it is more serious and therefore requires a greater sentence.

 

29.    Finally, therefore, we turn to the facts of this case.  The Court proceeds on the basis that there was provocation as the defendant describes in that he woke up to find the victim trying to kiss him in his bed in his own home.  The Court emphasizes that this is denied by the victim, but all parties are agreed that we should sentence on the defendant's version of events and we do so.

 

30.    However, after the first assault, which occurred immediately after the provocation, the defendant ejected the victim from the building.  He then went back to his bed.  He heard the victim shouting outside and got up again.  He got dressed, took a large knife from the kitchen and went outside where he attacked the naked victim with a knife.  We accept that this occurred within minutes of the original provocation, but the Court is satisfied that there had been an opportunity after the first assault for the defendant to cool down.  It was not acceptable for him to pursue the victim outside.  The defendant caused ten incision injuries, suggesting ten blows with the knife.  There were injuries to the front and back of the victim's chest and others on his arms and thighs.  It is indeed fortunate that the victim was not more seriously injured.  It must have been a terrifying incident. 

 

31.    We have considered carefully the mitigation put forward by Miss Deacon and that contained in the social enquiry report.  We accept that the defendant is very remorseful for what he did and we have read his letter to us.  He has pleaded guilty.  We note that, although he has a poor record, he seemed to have turned the corner and he kept out of trouble from 1993 until these offences, save for one appearance for assault and breach of the peace in 1998 for which he was sentenced to four months' imprisonment.  We accept that the assault was not premeditated in that it arose as a result of the indecent approach by the victim.  We do, however, distinguish between count 1 and count 2 in this respect.  Count 1 was clearly an immediate reaction to what had occurred.  There was, however, an element of deliberation in count 2 in that the defendant went back to bed, got up, got dressed, found a knife and went outside to attack the victim who was naked.  We accept that it all took place over a matter of some two minutes or so, but there was no excuse for the defendant to have pursued the victim outside with such a dangerous weapon.

 

32.    The list of cases produced by Mr. Whelan confirms the impression of this Court that the use of weapons is becoming more prevalent in Jersey.  We wish to endorse strongly the comments of the Court of Appeal in Gill -v- A.G. (29^th September, 1999) Jersey Unreported CofA when the Court said:

 

"Before leaving this case we add these general observations.  In cases of violence, whether of assault or robbery or rape or other forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence, not to deter the offender because it is too late to do that, but

 

(1)     to deter others who may be tempted to engage in similar violence, and to remind them that if they do so they will similarly face long sentences of imprisonment; and

 

(2)     to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey."

 

33.    We also note the comments of the Superior Number in A.G. -v- de Freitas, MacGregor & Stearn (4^th August, 1994) Jersey Unreported when it said this:

 

"I am going to issue a warning on behalf of the full Court that, in view of the increasing number of grave and criminal assaults and other assaults of that nature occurring in this Island, we shall give serious consideration to increasing the bench-mark against which to judge assaults."

 

         Of course at that time the bench-mark was the Norris guideline.

 

34.    Sentencing guidelines whether contained in Norris or in other cases, are not set in stone.  They can be adjusted where necessary to take account of changing circumstances.  This Court is determined to play its part in ensuring that those who resort to violence with weapons do so in the knowledge that they will face substantial prison sentences as indicated by Gill.

 

35.    We have considered the cases, both in Jersey and the United Kingdom listed for us by Mr. Whelan.  It is impossible to reconcile them all.  Some would appear to be on the lenient side but it is impossible to be sure without knowing the full facts.  Others would appear to be more consistent with what we believe to be the correct approach and we instance only AG -v- Cummins (16^th January, 1995) Jersey Unreported, AG -v-Harris (4^th December, 1995) Jersey Unreported, AG -v- Mullacky (14^th June, 1996) Jersey Unreported, and AG -v- Leitch (28^th April, 2000) Jersey Unreported as examples.  The Court has also noted the English cases of R. -v- McGrath (1992) 13 Cr.App.R.(S) 83 and A.G.'s Reference (No. 39 of 1994) (R -v- Millard) (1995) 16 Cr.App.R.(S) 763 listed in Current Sentencing Practice as being cases not wholly dissimilar in seriousness to this case.

 

36.    In the Court's judgment the conclusions moved for by the Crown in relation to the main count of grave and criminal assault are too low.  To attack a naked man with a large knife and stab him ten times requires in our judgment a greater sentence, notwithstanding the lack of serious injury and the available mitigation.  An offence can be serious because of the lethal nature of the weapon used and the nature of the assault (in this case repeated blows), even where the injuries caused are fortuitously not too serious.

 

37.    However, we pay full regard to the totality principle and we therefore propose to reduce the sentences for the offences on the first indictment below that which they might otherwise have attracted.  However, we do not think that they can be dealt with concurrently.  They were wholly separate offences of a different nature to those carried out in the cases of counts 1 and 2 of the second indictment and on a different day.

 

38.    Stand up, please Mallet.  The sentence will be as follows: regarding the first indictment, on count 1, you are sentenced to 1 month's imprisonment; on count 2, you are sentenced to 2 months' imprisonment, concurrent; on count 3, you are sentenced to 6 months' imprisonment, concurrent.  On the second indictment, on count 1, you are sentenced to 15 months' imprisonment; on count 2, you are sentenced to 4 years' imprisonment, those to be concurrent with each other, but consecutive to those on the first indictment, making a total of 4½ years' imprisonment.  We also make an exclusion order for 12 months from 1^st and 7^th category premises to take effect from the date of your release.

Authorities

 

 

Thomas: Principles of Sentencing (2^nd Ed'n): The Totality Principle: pp.56-61; 93-99.

 

A.G. -v- Leitch (28^th April, 2000) Jersey Unreported.

 

A.G.'s Reference No. 37 of 1995 (R. -v- Bruin) [1996] 2 Cr.App.R.(S) 38.

 

R. -v- Gordon (1987) 9 Cr.App.R.(S) 343.

 

A.G. -v- Langford (10^th April, 1985) Jersey Unreported.

 

Evans & Phillips -v- AG [1997] JLR 94 CofA.

 

A.G. -v- Douglas (21^st December, 1999) Jersey Unreported.

 

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

 

Norris -v- A.G. (28^th September, 1992) Jersey Unreported.

 

Whelan: Aspects of Sentencing in the Superior Courts of Jersey: Grave and Criminal Assault: pp.84-94.

 

Ibid: May 1994-1995 Noter Up: pp.36-39.

 

Ibid: May 1995-1996 Noter Up: pp.26-34.

 

Ibid: May 1996-1997 Noter Up: pp.35-45.

 

Gill -v- A.G. (29^th September, 1999) Jersey Unreported CofA.

 

A.G. -v- de Freitas, MacGregor & Stearn (4^th August, 1994) Jersey Unreported.

 

A.G. -v- Cummins (16^th January, 1995) Jersey Unreported.

 

A.G. -v- Harris (4^th December, 1995) Jersey Unreported.

 

A.G. -v- Mullacky (14^th June, 1996) Jersey Unreported.

 

R. -v- McGrath (1992) 13 Cr.App.R.(S) 83.

 

A,G.'s Reference (No. 39 of 1994) (R. -v- Millard) (1995) 16 Cr.App.R.(S) 763.

 

Current Sentencing Practice B2-2.