Jersey Unreported Judgments

[2003]JRC219

ROYAL COURT

(Samedi Division)

 

28^th November 2003.

 

 

The Attorney General

-v-

Joao Vasco Castro Ascencao;

José Miguel Castro Ascencao;

Karl Steven Harben;

Rebekah Marie Andrews.

 

Joao Vasco Castro Ascencao

 

1 count of:

Affray (count 1).

 

Age:     28.

 

Plea:    Guilty.

 

Details of Offence:

On the evening of 18^th July, 2003, Harben and Andrews had been out drinking with two friends in the Victoria Hotel.  Joao and José Ascencao (two brothers) had been drinking with their brother, Abel, in Porto above Alfonso's shop.  Just after 11p.m. the Harben and Andrews group walked past the three Ascencao brothers who were standing on the corner between Burrard Street and Cattle Street.  Words were exchanged between the two groups which culminated in Andrews throwing the contents of the glass she was carrying over José Ascencao.  The Harben and Andrews group walked off.  However, a short time later, the two groups encountered one another again in Halkett Place and CCTV footage shows that a fight broke out outside BHS (count 1).

The footage shows all parties exchanging blows and a member of the public becoming involved, apparently to protect Andrews.  The CCTV further shows Joao Ascencao being knocked to the ground by a blow from Harben.  Whilst he is lying unconscious on the ground, Andrews walks over to him and kicks him once to the upper body (count 3).  Harben also approaches him and punches him three times to the head (count 2).

 

Details of Mitigation:

Guilty plea, co-operation with police, limited involvement, no premeditation, accepted responsibility for his actions, no previous convictions, good employment record, long term partner and baby daughter (impact on family), remorse.

 

Previous Convictions:

No previous.

 

Conclusions:

 

Count 1:

6 months' imprisonment.

 

Sentence and Observations of Court:

 

Count 1:

120 hours Community Service Order.  (Crown's conclusions absolutely right.  Would normally received 6 months' imprisonment but circumstances deemed "sufficiently unusual" to keep him out of prison).

Affray likely to incur prison sentence.  Present case towards bottom of scale but must have been frightening for bystanders.  Court endorses Burrell - measure of responsibility for the actions of others.  Not always possible to identify who did what.  If a man joins in, he is contributing to the public terror which is at the heart of the offence of affray and which shall be punished accordingly.

In addition, all four defendants to be excluded from all licensed premises (except sixth category off licences) for six months.

 

José Miguel Castro Ascencao

 

1 count of:

Affray (count 1).

 

Age:     27

 

Plea:    Guilty.

 

Details of Offence:

See Joao Miguel Castro Ascencao above.

 

Details of Mitigation:

Guilty plea, no premeditation, action motivated in part by what had happened to his brother, no previous convictions for violence, stable relationship (had recently lost baby son), good employment record, remorse.

 

Previous Convictions:

One conviction for obstructing/refusing to obey police, one for causing a breach of the peace and one minor motoring offence.

 

Conclusions:

 

Count 1:

6 months' imprisonment.

 

Sentence and Observations of Court:

 

Count 1:

120 hours Community Service (Crown's conclusions absolutely right.  Again, circumstances deemed "sufficiently unusual" to keep him out of prison).

 

Karl Steven Harben

 

1 count of:	Affray (count 1);
1 count of:	Grave and criminal assault (count 2).

 

Age:     23.

 

Plea:    Guilty.

 

Details of Offence:

See Joao Migel Castro Ascencao above.

 

Details of Mitigation:

Guilty pleas, regret and remorse, provocation, apology to Court, no serious injury, police officer had formed good impression of him during interview, no previous Royal Court appearances or custody, youth, consistently in employment until threes proceedings, voluntary attendance at Alcoholics Anonymous counselling, good references (including one confirming Harben's crucial role in saving a life at sea).

 

Previous Convictions:

Previous convictions for, inter alia, common assault, breach of the peace, being drunk and disorderly, malicious damage and several minor motoring offences.

 

Conclusions:

 

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

 

Sentence and Observations of Court:

 

Count 1:	120 hours' Community Service.
Count 2:	180 hours' Community Service, concurrent. 12 months' probation - attendance at Aggression Control Training and Alcohol Study Group.  (12 months' imprisonment would not have been a day too long.  However, on the mitigation, Court satisfied of another side to Harben.  Also impressed by his efforts since the incident.  In circumstances felt able to keep him out of prison).

 

Rebekah Marie Andrews

 

1 count of:	Affray (count 1);
1 count of:	Grave and criminal assault (count 3).

 

Age:     23.

 

Plea:    Guilty.

 

Details of Offence:

See Joao Vasco Castro Ascencao above.

 

Details of Mitigation:

Guilty pleas, youth, "ineffectual" kick with "flip-flop" type shoes, very low level of grave and criminal assault, unaware victim unconscious, apology to Court, two year old child (no other financial support), good work record, no previous convictions, remorse.

 

Previous Convictions:

Two convictions for minor motoring offences.

 

Conclusions:

 

Count 1:	6 months' imprisonment.
Count 3:	9 months' imprisonment, concurrent.

 

Sentence and Observations of Court:

 

Count 1:	120 hours' Community Service.
Count 3:	150 hours' Community Service, concurrent. The kicking of Joao Ascencao was a despicable act.  Saving factor is that it was a feeble kick to the shoulder in "flip-flop" type shoes.  Nevertheless, serious because kick to unconscious man.  Crown's conclusions correct but, in circumstances, felt able to pass non-custodial sentence.

 

 

 

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

Advocate M.L. Preston for J.V.C. Ascencao;

Advocate Mrs. S.A. Pearmain for J.M.C Ascencao;

Advocate J. Bell for K.S. Harben;

Advocate C.M. Fogarty for R.M. Andrews.

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        The Court has said on several occasions that those who commit affrays by fighting in the streets of St. Helier are likely to go to prison.  We accept that on this occasion the affray can be described as being towards the bottom end of the scale, but it must have been a frightening experience for any bystanders.

2.        We endorse what was said in the case of AG -v- Burrell and others [2003]JRC209, which is that:

..."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 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."

3.        In this case each of the two sides have sought to say that it was the other that started it.  We are unable to allocate fault, and we are treating each side as equally to blame.  Counsel for each accused has urged the Court that this is a case where we can proceed by non-custodial sentences.  As can be seen from the time we have taken to consider this matter we have found these difficult submissions. 

4.        Dealing first with Joao Ascencao.  You have no previous convictions, you have a good work record, you have a stable relationship and a young child.  The Probation Service says that you are at low risk of re-offending with no alcohol or drug difficulty.  You have pleaded guilty at an early stage and it is clear from the Reports that you are remorseful.  We accept that the offence was wholly out of character.  Your involvement was that you punched Harben, you pushed and jostled Andrews, and then you were knocked unconscious by Harben. 

5.        We consider that the circumstances in your case are sufficiently unusual to say that you do not have to go to prison on this occasion.  Having said that, we would say that the Crown's conclusions were absolutely right as to the correct length of sentence.  Nevertheless, we can proceed in an alternative way and are therefore going to impose a Community Service Order of 120 hours; 6 months' imprisonment is the sentence we would have had in mind.

6.        José Ascencao, you have been in Jersey for seven years.  You too have a good employment record, stable relationship, and sadly you lost a child last year.  Unlike your brother you have some minor previous convictions but there are none for violence.  You too have pleaded guilty and have been co-operative.  You are assessed as being at low risk of re-offending.  You do not have a problem with drink or drugs and you are remorseful.

7.        We accept that in your case too, this offence was wholly out of character.  Accordingly for the same reasons as in your brother's case, we have decided that we can proceed by a non-custodial sentence.  The sentence is 120 hours Community Service and we say that 6 months' imprisonment would have been the sentence we had in mind.

8.        We will deal next with Rebekah Andrews.  You too have no previous convictions.  You live with your parents and you have a two year old son.  You also have a good work record.  All of these matters stand you in good stead.  In your case you pushed José, you also punched him several times and then you kicked Joao when he was unconscious on the ground.  That was a despicable act.  What saves you is that it was a feeble kick to his shoulder at a time when you were wearing flip-flop type shoes.  As your counsel said it may have been the case that you were more likely to injure your toes than the victim.  Nevertheless, any kick to anyone who is unconscious on the ground is a serious matter; and it means the sentence is going to be greater than for the other two defendants so far sentenced.

9.        Nevertheless we accept that in your case too, this is wholly out of character.  You are assessed as being at low risk of re-offending, you are remorseful, you pleaded guilty and we accept that you are unlikely to re-offend in this way.  In your case too we have been persuaded, notwithstanding the grave and criminal assault, to proceed by way of a non-custodial sentence.  In your case, therefore, on the affray count it is 120 hours community service but on the grave and criminal assault 150 hours community service.  We have heard your counsel's submissions that you have a child to look after but you must pay the penalty for what you did.  We say the total equivalent sentence we had in mind would have been 9 months.

10.      Finally we come to Harben.  Your case has caused us the greatest difficulty.  You have a problem with drink.  Furthermore, you have previous convictions including a conviction for assault, so we cannot say, in your case, that it is wholly out of character, as we have found in relation to the other three defendants.  What you did on this occasion was more serious than any of the others.  There was the scuffling and so forth and punches as the others had done but your three punches to Joao's head when he was lying unconscious on the ground was an extremely serious act.  Ironically, although one tends to think of a kick as being more serious than a punch, we have no doubt that your punches, on the facts of this case, having seen the video, were more serious than the kick administered by Andrews.  It is fortuitous that your forceful punches to his head did not cause serious injuries.

11.      We do not think that 12 months is a day too long for what you did.  But it is clear that there is another side to you.  We have seen the references, in particular, we note that you probably saved the life of a surfer at one stage and you are to be congratulated for that.  You have the support of your family.  You pleaded guilty and have been co-operative, and we are quite satisfied that you are remorseful for what you did.  In particular, we were impressed by the comments of the police officer who interviewed you the very next day, and it is clear from what he said that he did not find the sort of man he expected to see and that you were indeed very shocked by what had happened and remorseful for your part in it.

12.      There is a strong recommendation in the Social Enquiry Report that you should attend probation in order to deal with your drink, and with your tendency to anger.  What also stands you in very good stead are the efforts you yourself have made over the last few months to deal with your attitude to drink.  In all the circumstances we think, not without hesitation, that we can just go along with the recommendations put forward by your counsel and by the Probation Service.

13.      The sentence, therefore, is that you will be placed on probation for 12 months on both counts, you will also serve 120 hours community service on count 1; and 180 hours on count 2 to be concurrent.  We say that we would have imposed a sentence of 12 months' imprisonment had we sent you to prison.  During the probation we note and are pleased to see that you will be attending aggression control training and the alcohol study group.  We hope that this has the desired effect because there is much good in you, but you are heading the wrong way at the moment unless you pull yourself out of it.

14.      In all four cases I wish to make it clear, of course, that if any of you do not turn up for the community service, or if you commit further offences, you will be brought back here and because you have all escaped prison by the skin of your teeth, it is likely, therefore, that you will go to prison if you do not behave properly in every respect during the course of these sentences.

15.      One other matter that we are going to order, not asked for by the Crown, in that we think that as an added punishment we should make an exclusion order.  It is quite clear that drink played a part in this violent offence.  We are, therefore, going to make an exclusion order for all four of you, which means that you may not go into any licensed premises except 6^th Category in other words "off-licenses".  So you can go and buy alcohol in off-licenses but you may not go into any pubs or restaurants which have a licence, for 6 months.

Authorities

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

Thomas: Principles of Sentencing (2^nd Edition): pp.110-2.

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

A.G. -v- Burrell and 4 ors [2003]JRC209.

A.G. -v- Seaward (10^th November, 2000) Jersey Unreported; [2000/222].

Mallet -v- A.G. [2002]JLR256.

A.G. -v- Lovegrove, McShane (16th August, 2002) Jersey Unreported; [2002/154].