Jersey Unreported Judgments

[2004]JRC183

ROYAL COURT

(Samedi Division)

 

22^nd October 2004

 

 

The Attorney General

-v-

Michael  Somerville;

Liam John David Hardman.

 

Michael Somerville

 

First Indictment

 

1 count of:

Grave and criminal assault (Count 1).

 

Second Indictment

 

1 count of:

Possession of a controlled drug contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978 (Count 2).

 

Age:     24.

 

Plea:    Guilty.

 

Details of Offence:

Both accused had been drinking heavily as had the victim.  The victim was Polish and was wearing a Polish national football shirt.

Words were exchanged inside a club during the early hours.  The defence claimed that the victim behaved aggressively towards the accused such that he had to be asked to leave the club.  It was further claimed that the victim and his two friends waited outside the club for the accused to leave at closing time.  The Crown did not dispute these matters on the basis that they could in no way excuse what subsequently occurred.  CCTV footage was played to the sentencing court which clearly showed both accused chasing the victim who ran towards Halkett Place.  There he was forced to the ground and whilst held down on the road he was repeatedly punched.  Each assailant taking it in turn to do so.  Having both delivered many punches to the head and upper body of the victim, Somerville walked a few paces away turned and then kicked the prone victim to the head although it appeared to have been a glancing blow to the top of the head.  The victim remained on the ground for many minutes after the attack obviously dazed.  Somerville ran from the scene and had to be apprehended by a police officer.  Hardman remained and was co-operative when arrested.  The victim's injuries consisted of bruising and abrasions but nothing particularly serious or requiring treatment beyond that given initially by the Accident and emergency Department.

At Police Headquarters during the search and detention procedure, Somerville dropped a lump of cannabis resin which had been in his pocket.  The cannabis weighed 24.33 grams and had a street value of £137.

The Crown regarded the following as aggravating features:

1.             The drunkenness of the accused;

2.             The fact that the assault occurred in a public place.

3.             The deliberate and cold-blooded nature of the assault delivered to a victim whilst he was held down and at no stage retaliating.

 

Details of Mitigation:

Provocation by the victim.  Lack of serious injury to the victim.  Somerville was able to produce a number of good references showing that he was in a stable relationship, had a good work record and that this offence was out of character.  He had no relevant prior convictions.  Residual youth was claimed as a mitigating feature.  He had pleaded guilty to both offences.  The Probation Report recommended a Probation Order allied to a Community Service Order to punish the accused.  Somerville was already voluntarily undergoing anger management treatment and this would continue.

 

 

Conclusions:

 

First Indictment:

 

Count 1:

2 years, 3 months' imprisonment.

 

Second Indictment

 

Count 1:

2 months' imprisonment, consecutive.

 

Sentence and Observations of Court:

Whilst noting the cold blooded nature of the assault, in view of the mitigation available to the accused the Court was able to avoid custodial sentences but stated that they had escaped imprisonment "by the skin of their teeth".  Fortuitously, the victim did not suffer serious injury for which reason the Court was able to avoid imposing custodial sentences.  Had the Court decided to imprison the accused, the Crown's Conclusions were stated to be correct.  The following sentences were imposed:

18 months' probation with conditions that he attend the Aggression Control Training programme run by the Probation Department and continue to see the clinical psychiatrist.  240 hours community service.  A compensation order of £500 in favour of the victim. In default, one month's imprisonment.  a 12 month exclusion order from 1^st to 7^th category licensed premises.  A fine of £500 or one month's imprisonment in respect of the drugs offence.  Forfeiture and destruction of the drugs.  Two weeks to pay the compensation order and fine.

 

 

Liam John David Hardman

 

1 count of:

Grave and criminal assault (Count 1).

 

Age:     22

 

Plea:    Guilty

 

Details of Offence:

See Somerville, above.

 

Details of Mitigation:

Provocation by the victim.  Lack of serious injury to the victim.  He had no record of prior convictions at all.  He had pleaded guilty to the offence at an early stage.  Remorse.  Many references were put before the Court demonstrating that the offence was out of character.  Hardman was a family man with a young son.  Residual youth.  He was assessed as being at very low risk of re-offending.  Good work record.  The Probation Report did to consider that a Probation Order was needed in his case.  A recommendation was made for community service.

 

Conclusions:

Adopting a somewhat lower starting point of three years' imprisonment (in view of the fact that unlike Somerville, Hardman did not kick the victim), the Crown sought the imposition of 18 months' imprisonment.

 

Sentence and Observations of Court:

Whilst noting the cold blooded nature of the assault, in view of the mitigation available to the accused the Court was able to avoid custodial sentences but stated that they had escaped imprisonment "by the skin of their teeth".  Fortuitously, the victim did not suffer serious injury for which reason the Court was able to avoid imposing custodial sentences.  Had the Court decided to imprison the accused, the Crown's Conclusions were stated to be correct.  The following sentences were imposed:

240 hours community service.  Compensation order in favour of the victim of £500 (one month's imprisonment in default).  A 12 month's exclusion order from 1^st to 7^th category licensed premises.  Two weeks to pay the compensation order.

 

 

 

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

Advocate M.J. Haines for M. Somerville.

Advocate J.Bell for L.J.D.Hardman.

 

 

 

JUDGMENT

 

 

THE COMMISSIONER:

1.        This case is concerned with excessive drinking and, of course, violence.  Both Somerville and Hardman are charged with, and have pleaded guilty to, grave and criminal assault.

2.        We have seen the CCTV recording of the violence, but as we have said before the CCTV is silent and of course one does not know the details which led to the assault taking place.  Both men to their credit have pleaded guilty.

3.        The Crown is able to accept that there may have been a punch delivered to Hardman's face by the complainant at some stage early in the proceedings.  Nevertheless, we have to note that Hardman's face apparently showed no sign of injury.  It was the complainant who was asked to leave the licensed premises, and it is perhaps unfortunate, because of the licensing hours, that both parties met up outside.

4.        Let us look for a moment at what the Court of Appeal said in its judgment Harrison -v- A.G. [2004]JCA046.  We will not look at all the matters that have been referred to by that Court, but those which are appropriate to this particular matter,

5.        Firstly, the nature of the deliberation with which the assault was carried out.  This was clearly a deliberate attack, though it might have been in some way provoked.

6.        Secondly, whether the blow was aimed or at random, These were not random blows in any sense.

7.        Thirdly, whether the incident arose as a result of a loss of temper or was committed in cold blood.  There may have been temper involved, but this was a cold blooded assault as far as we are concerned.

8.         What was the degree of force with which the blow must have been struck? We have read the medical reports and we have seen the CCTV now on three occasions.

9.        The nature, extent, gravity and permanence of the injury occasioned.  It is perhaps fortunate that there is no permanent injury to the complainant. 

10.      If a weapon was used the nature of such a weapon.  We will repeat again for those who wish to listen, that a shod foot is, in our view, a weapon, but we agree that there was no knife or other implement carried by either of the two accused.

11.      How many were concerned in the assault and the circumstances which gave rise to their involvement.  There were only two in this case but we are still concerned as to who were the other people running down Halkett Street at the time of the first assault.

12.      The nature and extent of any provocation offered by the victim. Again, we do not know what that was.  Neither of the accused has a record of committing the same or similar offences, and neither is assessed as being a danger to himself or to the public.

13.      We have spent considerable time reading the references and the detailed reports.  I have to say that violence in the streets of St Helier is not decreasing, and your personal family problems are of little concern in this particular matter.  The background reports are extremely detailed.  It is perhaps fortunate that the kick from Somerville did not have a more serious result and if it had we would have had no hesitation in following the conclusions of the Crown. 

14.      These are your first offences and you do have, as both your counsel have reminded me, the benefit of youth.

15.      You have escaped prison, but you have escaped prison by the skin of your teeth.  We will not tolerate this sort of violence in St Helier and you may think the sentence we are going to pass on you is a lenient one, but I want you to think about it because it is not.  We would have sentenced you, Somerville, to 2 years and 5 months, and you Hardman to 18 months' imprisonment.  As it is we are going to pass this sentence upon you:

16.      Somerville, you will serve probation for 18 months with an attendance at the Aggression Control Training Centre, and you will also see the clinical psychiatric on a one-to-one basis.  Those terms of course will be set out by your Probation Officer, but you must also serve a Community Service Order - which reflects the serious nature of this offence - of 240 hours.  You will also pay a fine of £500 for the cannabis offence.

17.      Harman, you will serve, as a punishment, a 240 hours Community Service Order.

18.      Each of you must also pay compensation of £500 to the victim and each of you are excluded from 1^st, 5^th and 7^th category premises for 12 months.  We order the forfeiture and destruction of the drugs.

Authorities

Harrison -v- A.G. [2004]JCA046.

A.G. -v- Ross (27^th July, 2001) Jersey Unreported [2001/165].

A.G. -v- Foy (11^th September 2001) Jersey Unreported [2001/194].

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

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp. 260-6.