Jersey Unreported Judgments

2002/223

ROYAL COURT

(Samedi Division)

22^nd November, 2002

The Attorney General

-v-

Paul Michael Gardner

Age:  38

Plea:    Guilty.

Details of Offence:

All three offences occurred on separate occasions within a two week period. 

Count 1: Gardner walked out of a sports shop with two vest tops valued at £29.98 without paying for them.  He maintained upon arrest that they were his and only pleaded guilty when indicted.

Count 2: Gardner committed an unprovoked assault by striking the licensee of a bar on the head with a vodka bottle with such force that it shattered.  The blow was struck whilst the licensee was helping Gardner, who was heavily intoxicated, up the stairs from the basement premises to street level.  The licensee was behaving sympathetically towards the victim and did nothing to provoke the attack.  Fortunately, the licensee did not suffer serious permanent injury but was cut and badly bruised around the right eye.  Gardner expressed no remorse.  The Crown contended that the offence was aggravated by his extreme drunkenness and the unprovoked nature of the attack.

Count 3: When arrested for being drunk and disorderly, Gardner had been reported as annoying members of the public in the area of Bath Street and Queen Street.  At the time of his drunken behaviour, the area was busy with a number of members of the public including young children. 

Details of Mitigation:

The accused had an unfortunate past and suffered from mental health problems that were complex and not susceptible to proper treatment in the Island.  He had pleaded guilty.  Although he had prior convictions for shoplifting, offences of common assault and public order offences, there were gaps in his criminal record.  The value of the goods stolen was nominal.  The assault was not premeditated and it was not a deliberate "glassing" in the sense of breaking a bottle in order to attack the victim with it.  There was no serious injury or scarring.  The offence of being drunk and disorderly did not involve any violence or threatened violence to members of the public.    

Conclusions:

Sentence and Observations of Court:

Conclusions granted. 

The Court remarked that the assault was wholly unprovoked, the attack being on a licensee doing his job in a sympathetic manner which could have caused him serious injury.  The Court did express the hope that Gardner would be transferred to a UK prison for treatment but accepted defence counsel's submission (in light of the Warder case) that Gardner has to be sentenced for the offence itself and not given a longer sentence to afford treatment.

A.D. Robinson, Esq., Crown Advocate.

Advocate J. Bell for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This was a wholly unprovoked assault on a licensee who was merely doing his job in a sympathetic manner.  To smash a bottle into someone's face can potentially have very serious consequences.  Fortunately, it did not do so on this occasion, but that is a matter of luck.

2.        The Court has had the benefit, in this case, of very thorough and helpful reports, from Dr. Sharkey and Dr. Fee as well as the usual Probation Report.  It is clear from their psychiatric reports that you suffer from intermittent paranoid schizophrenia.  It is also clear to the Court that the Island's mental health legislation does not provide the appropriate framework for treatment in this case.

3.        Mr Bell has urged in mitigation your guilty plea and the fact that this was an unpremeditated attack.  We accept that.  It was not a case where you broke the bottle before you used it.  You do, on the other hand, have previous convictions for assault, albeit not for grave and criminal assault.  We have also, of course, taken into account your background, generally, as set out in the Reports.  We are quite satisfied there is no alternative to prison in this case, and we express the hope that you will be transferred to the United Kingdom at the earliest opportunity, so that you can receive treatment in a secure unit in England under the English mental health legislation.

4.        However, Mr Bell has rightly reminded us that we must, of course, only impose the correct length of sentence for these offences.  The length cannot be affected by any suggestion as to the period needed for treatment.

5.        Mr Bell referred us to the case of A.G. -v- Hervé (3^rd March, 2000) Jersey Unreported; [2000/40], and submitted that that was a more serious case; however, it is always difficult and impracticable to compare the facts of one case with another.  Looking at the various cases summarised in Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n) pp.166-168, it is clear that in some cases, even where a non-broken bottle is used, the sentence has exceeded 2 years and sometimes it has been less.

6.        In our judgment the conclusions of the Crown were right in this case and make full allowance for all the available mitigation.  The sentence, therefore, is one of a total of 2 years and 3 months, made up as to: 1 month's imprisonment on count 1; 2 years' imprisonment on count 2; and 2 months' imprisonment on count 3 all of them to be consecutive.

Authorities

A.G. -v- Hervé (3^rd March, 2000) Jersey Unreported; [2000/40].

Warder-v-A.G. (21^st May, 2001) Jersey Unreported;[2001/113].

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n).