Jersey Unreported Judgments

 [2003]JRC209

ROYAL COURT

(Samedi Division)

 

14^th November, 2003

 

 

The Attorney General

-v-

Carl Michael Burrell

Mark James Brown

Adrian Alexander MacKinnon

Benjamin Allan Murray

and

Michael Roy Pankhurst

 

 

Carl Michael Burrell

 

1 count of:	affray (count 1).
1 count of:	assault (count 2).

 

 

Age:     27.

 

Plea:    Guilty.

 

Details of Offence:

The defendants were involved in fighting between 20 to 30 people in the early hours of the morning on La Route de la Liberation.  The fighting was filmed by a CCTV camera.  All of the defendants save for Murray were drunk at the time.  Burrell was involved in the violence from the outset and had punched an innocent bystander, hence the separate assault charge.  Brown had at first been chased and had then retaliated by head-butting a man and then kicking him to the head whilst he was on the ground.  His actions perpetuated the fighting.  He pleaded not guilty and was convicted by a jury.  During the fighting MacKinnon had forcibly thrown Murray into the road, and had then thrown punches at other men.  Pankhurst had wrestled with Brown on several occasions, and Murray had thrown one punch at Burrell that had not connected.  When the Police arrived, Brown tried to run away on two occasions.

 

Details of Mitigation:

Guilty pleas, remorse, excellent employment record, case had been hanging over his head.

 

Previous Convictions:

18 offences, 3 of which were for offences of violence.

 

Conclusions:

 

Count 1:	12 months' imprisonment.
Count 2:	6 months' concurrent.

 

Sentence and Observations of Court:

 

Count 1:	6 months' imprisonment.
Count 2:	2 months' concurrent.

 

Having viewed CCTV, the Court was satisfied that the affray was not premeditated and the level of violence not grave.  However, it would have frightened passers by and was at the bottom end of the scale.  Court has made it clear that it will not tolerate violence of this sort in St Helier.

 

 

Mark James Brown

 

1 count of:	affray (count 1).
	[The defendant pleaded not guilty to count 3, which plea was accepted by the Crown].

 

 

Age:     28.

 

Plea:    Convicted at criminal assize on 14^th October, 2003 on a not guilty plea.

 

Details of Offence:

See Burrell above.

 

Details of Mitigation:

Remorse, certain degree of provocation, family obligations.

 

Previous Convictions:

9 offences, including various public order.

 

Conclusions:

15 months' imprisonment.

 

 

Sentence and Observations of Court:

9 months' imprisonment.

See Burrell: General Observations of the Court.

 

 

Adrian Alexander MacKinnon

 

1 count of:

affray (count 1).

 

 

Age:     24.

 

Plea:    Guilty.

 

Details of Offence:

See Burrell above.

 

Details of Mitigation:

Guilty plea, good character, lesser involvement, remorse.

 

Previous Convictions:

1 drink driving.

 

Conclusions:

6 months' imprisonment.

 

 

Sentence and Observations of Court:

£2,000 fine or 2 months' imprisonment, in default of payment.

See Burrell: General Observations of the Court.

 

 

Benjamin Allan Murray

 

1 count of:

affray (count 1).

 

 

Age:     19.

 

Plea:    Guilty.

 

Details of Offence:

See Burrell above.

 

Details of Mitigation:

Guilty plea, good character, fringe involvement, youth, remorse, excellent references.

 

Previous Convictions:

None.

 

Conclusions:

£750 fine or 1 month Youth Detention, in default of payment.

 

 

Sentence and Observations of Court:

£500 fine or 1 month Youth Detention, in default of payment (2 weeks to pay).

See Burrell: General Observations of the Court.

 

 

Michael Roy Pankhurst

 

1 count of:

affray (count 1).

 

 

Age:     26.

 

Plea:    Guilty.

 

Details of Offence:

See Burrell above.

 

Details of Mitigation:

Guilty plea, good character, lesser involvement, remorse, good references.

 

Previous Convictions:

None.

 

Conclusions:

6 months' imprisonment.

 

 

Sentence and Observations of Court:

£2,000 fine or 2 months' Youth Detention, in default of payment (3 months to pay at minimum of £250 per month).

 

 

C.M.M. Yates, Esq., Crown Advocate.

Advocate J. Bell for C.M. Burrell;

Advocate Mrs S.A. Pearmain for M.J. Brown;

Advocate D. Hopwood for A.A. MacKinnon;

Advocate J.C. Gollop for B.A. Murray;

Advocate F.B. Roberton for M.R. Pankhurst.

 

 

 

JUDGMENT

 

 

 

THE BAILIFF:

1.        The Court wishes to say, first of all, two things about the offence of affray for which all these defendants are to be sentenced and which involves putting members of the public in fear by fighting. 

2.        First the important criteria in determining the gravity of the offence are the level of violence used, the scale of the affray, that is to say how many people are involved in it, and the extent to which it is premeditated or spontaneous.  The Court has had the advantage of seeing the CCTV footage of part of the incident.  We are satisfied that the fighting was not premeditated and that the level of violence with some exceptions was not particularly grave.  It must, indeed, have been a frightening occasion for any passer by, but in the context of affrays, this incident was at the bottom end of the scale.

3.        Secondly those who take part in an affray must accept that they have a measure of responsibility for the actions of others with whom they are acting jointly.  It is in the nature of an affray that it is not always possible to identify exactly who did what.  If a man joins in the fighting he is contributing to the public terror which is at the heart of the offence and must expect to be punished accordingly.

4.        We turn now to the individuals.  Burrell was one of those most deeply involved in the fighting.  Without any provocation he attacked an innocent bystander, Mr McGrath, who was trying to stop the fighting causing him to twist his ankle badly.  He has a very bad record including two previous convictions for grave and criminal assault and one for assault.  He admits having consumed eight pints of lager and to being quite drunk.  In mitigation he has pleaded guilty to the indictment and we accept that he has an excellent employment record.  We also accept, as put to us by his counsel, that this case has been hanging over his head for some months.  Having said all that the Court must make it clear that this kind of large scale public disorder will not be tolerated and is very likely to be punished with a custodial sentence.  Burrell, we have felt able to reduce the conclusions having regard to all the circumstances of the case but we cannot avoid a prison sentence.  On count 1 you are sentenced to six months' imprisonment, on count 2 to two months' imprisonment concurrent, making a total of six months' imprisonment.

5.        We turn to Brown who was initially a victim of the violence in that he was chased by a group of men and set upon having fallen into a hedge.  Having stood up, however, he did not, as he should have done, walk away but joined in the fighting, head butting another man and subsequently kicking at him whilst he was on the ground.  These actions by Brown reignited the fighting.  Brown has three previous convictions including public order offences, all of which appear to be alcohol related.  He denied his involvement and was convicted by a jury.  No mitigation is available to him for a guilty plea.  He too was very drunk having consumed, on his estimate, ten pints and five or six measures of spirits during the evening.  In mitigation he has been in employment as a carpenter and his employer speaks very highly of him.  He has family obligations to his girlfriend and her son and to one child of his.  Brown, as with your co-accused Burrell, we have to mark the gravity of the offence of which you were convicted by the jury.  We take into account everything urged on us by your counsel but we cannot avoid imposing a prison sentence.   The sentence of the Court is that on count 1 you will go to prison for nine months.

6.        We turn now to MacKinnon who was involved in the fighting at different stages.  He has one previous conviction but only for a road traffic offence and for these purposes is to be treated as a first offender.  He is an illegal immigrant who is likely, if he does not leave the Island voluntarily, to be deported.  He was not as intoxicated as Burrell or Brown but he had consumed three pints of lager and two brandies.  We accept the submissions of his counsel, that he was involved in the affray to a lesser extent than either Burrell or Brown.  That factor together with his previous good character enable us to deal with his case on balance by avoiding a custodial sentence.  MacKinnon, you accepted responsibility for what you did and you are entitled to credit for that.  Nonetheless you took part in a disgraceful exhibition of street violence and we have to punish you for that and we propose to do so by imposing a fine.  You will accordingly be fined the sum of £2,000 on count 1 or in the alternative, two months' imprisonment.

7.        We turn to Pankhurst who also admitted that he was drunk having consumed six pints and four sambucas and champagne.  He suffered a bite to his ear during the fighting.  Pankhurst has no previous convictions.  We accept the submissions of his counsel that he too was involved to a lesser extent than Burrell or Brown and for those two reasons we are able to avoid a custodial sentence in his case also.  Pankhurst, we have read all your references and noted in particular your charitable activities in the London marathon and you are entitled to credit for that.  We propose to deal with you in the same way as MacKinnon and on count 1 you will be fined £2,000 or, in default of payment, you will go to prison for two months.

8.        Finally we turn to Murray who at nineteen is the youngest of the accused and is said by the Crown to have played only a minor role in the affray.  He is of previous good character and has produced a number of impressive references.  Murray, we are taking account of your age and the fact that you were on the fringe of this ugly display.  We hope that you will never again become involved in anything of this kind.  On count 1 you will be fined £500 or in default of payment you will serve one month's youth detention.

Authorities

A.G. -v- Shewan (4^th February, 1999) Jersey Unreported; [1999/22].

A.G. -v- Skinner [2003]093A.

Thomas: Principles of Sentencing (2^nd Edition): Riot and Affray: p.p. 110-112.

Current Sentencing Practice: B3 - 1.3A. Affray - spontaneous or unpremeditated.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edition): p.p. 285 - 6.