Jersey Unreported Judgments

[2008]JRC018

ROYAL COURT

(Samedi Division)

8^th February 2008

The Attorney General

-v-

Mark Leonard Tresidder

Sentencing by the Inferior Number of the Royal Court following a guilty plea to:

Age:  27.

Plea: Guilty.

Details of Offence:

Tresidder, in the company of his former partner and their child, had sat in a pub for the large part of the day consuming alcohol.  He had consumed between 5 and 6 pints of lager and in his opinion he was very drunk.  He parted company from his former partner but had taken the child with him who was in a pushchair.  He passed the victim who was aged 71 and who was sitting on a wall minding his own business.  The victim did not speak English.  The defendant, who seemed to think that the victim had said something to him about the defendant's son, approached the victim swearing and then, without provocation or warning, attempted to kick the victim in the head.  The kick did not connect but it was then followed by a punch which did connect knocking the victim from the wall.  The victim sustained a fracture to his cheek bone and a number of minor cuts and bruises.  He was now in fear for the future.  The defendant had simply walked away taking his son with him and he had been arrested at his home address a short while later.  When interviewed under caution he had little recollection of the events and offered the explanation that he victim must have said something for him to have struck him. When he was advised that the victim did not speak English the only explanation was that he was very drunk.  He apologised for his behaviour.  A letter of apology was sent through Counsel to the victim.

Despite the Court of Appeal case of Harrison -v- Attorney General the Crown did not seek to adopt a "starting point" for the purposes of sentencing but approached sentencing in the round.  It viewed as an aggravating factor the fact that the defendant was intoxicated.  An unpleasant assault had been committed on an elderly man who was unable to offer any resistance or to defend himself.  The defendant had been the aggressor and the offence totally unprovoked.  It had been a deliberate assault.

Details of Mitigation:

In the Crown's view the defendant had been co-operative in interview and had entered a guilty plea at an early opportunity before the Magistrate's Court.  He had expressed remorse in interview and provided a letter of apology to the victim.  His criminal record was minor and did not contain any offences for violence.  He had limited residual credit for youth.

The Defence emphasised the difficult upbringing that the defendant had suffered from.  He had been co-operative and pleaded guilty.  He had already been punished as he had had no contact with his son since the incident.  He was not dependant on alcohol and had not drunk since the incident.  He had also stopped using cannabis.  He was remorseful and the offence was out of character.  There were a number of personal issues which needed to be addressed and these could be best addressed through probation etc.

Previous Convictions:

Two previous convictions; one for possession of a controlled drug and one offence of being disorderly on licensed premises.

Conclusions:

Sentence and Observations of Court:

The defendant had committed an unprovoked assault on a 71 year old man.  The defendant had been drinking heavily and had been in the company of his two year old son.  The victim had thought that the defendant had been speaking to his son.  The defendant then spoke to the victim but the victim had not responded as he spoke no English.  The defendant then suddenly kicked the victim to the face who had moved back but this had then been followed by a punch to the fact knocking him off the wall.  The punch caused a fractured cheek bone and a black eye.  The victim now lives in fear.  The defendant lived alone and had expressed remorse which the Court accepted was genuine.  He also had written a fulsome letter of apology.  He was not dependant on alcohol but had drunk heavily.  He had also used cannabis and one of its effects was that users misinterpreted other people's intentions.  The Crown's position was that a sentence of 2 years' imprisonment was appropriate on an unprovoked assault where the defendant had got drunk and had committed an assault because of a misconceived slight.  The Social Enquiry Report recommended probation which was supported by the Defence.  This would enable him to address some of the underlying issues.  He was suitable for a Community Service Order.  The Court had been made aware of the Court of Appeal case of Harrison -v- Attorney General and the direction that it would be desirable for a "starting point" to be used for the purposes of sentencing grave and criminal assaults but both the Crown and the Defence had found it an impossible or difficult task.  The Court had been invited to look at matters in the round.  The Court accepted that there was genuine remorse and made a note of the letter of apology.  The defendant had support from his sister and had pleaded guilty and had been fully co-operative.  There were supportive references.  However, whilst the Court was sympathetic to the personal circumstances of the Defendant, his conduct was wholly unacceptable.  Unless there were really exceptional circumstances those who committed gratuitous acts of violence would go to prison.  The Court felt able to reduce the Crown's Conclusions.

J. C. Gollop Esq., Crown Advocate.

Advocate J. S. Dickinson for the Defendant.

JUDGMENT

THE commissioner:

1.        In the late afternoon of 25^th August, 2007, the defendant made an unprovoked assault on a 71 year old man who happened to be sitting on a wall which he was passing.  The defendant had been drinking heavily and was pushing his son aged 2 in a push-chair back towards his flat. 

2.        According to the victim the defendant was talking loudly, he thought, to his son.  The defendant started to speak to the victim but the victim, who speaks no English, made no reply.  Suddenly, without provocation, the defendant attempted to kick the victim in the side of his face.  The victim moved back avoiding the kick.  The defendant then punched him to the face causing the victim to fall back over the wall.  The victim suffered a fracture of his cheek bone, a black right eye and bruising and apparently now lives in fear.

3.        In interview the defendant said he remembered trying to kick the victim.  He thought the victim had said something to his son, but when told the victim spoke no English he could offer no explanation.  The defendant does not have a record of violence and has not previously received a custodial sentence.  He has expressed regret and remorse which the probation officer says appears genuine.  He has written a fulsome letter of apology to the victim, both in English and translated into Portuguese and sent via the police which we have seen.

4.        Whilst there was no indication that he is dependant upon alcohol he appears to drink excessively in social situations and, as is common with cannabis users, we are informed misinterprets other peoples' behaviour as hostile when intoxicated.  He is assessed at the high-end of the low risk bracket of re-offending. 

5.        The Crown says this was a deliberate, unprovoked attack on an elderly man for which a custodial sentence of 2 years' imprisonment is appropriate.  It is wholly unacceptable, the Crown say, for somebody to go and get drunk and then assault an elderly person over a misconceived slight.  Such conduct must result in condign punishment. 

6.        The Probation Service argue, as indeed do the defence, for a community based alternative to custody so that the defendant who is in stable employment can address some of the issues which appear to be influencing his behaviour when intoxicated.  They recommend probation on condition that he attends the Aggression Control Training Programme, which he has agreed to do.  They also considered a referral to the Psychology Department.  They may also address issues of victim awareness and empathy and if appropriate involve the Service's Restorative Justice Worker.  They also recommend a community service order.

7.        The Court was concerned at the position in relation to the Court of Appeal judgment in Harrison -v- AG [2004] JCA 046 and the recommendation of the Court of Appeal that it was desirable that the Royal Court should identify starting points and that the Crown should assist and research the appropriate authorities.  Both the Crown and the defence have tried this exercise, but both have found it impossible or difficult.  Therefore, this Court has been invited to look at the matter in the round.

8.        We have considered the mitigation put forward.  We accept that there is genuine remorse and we have been impressed by the letter of apology to the victim and the trouble taken over that letter.  We note the support of the defendant's sister and of course we take into account all the other mitigation including the guilty plea and indeed the references.  However, sympathetic as the Court may be to his position, this kind of conduct is absolutely unacceptable and unless there are really exceptional circumstances anyone who engages in unprovoked gratuitous violence of this kind will go to prison.  We have as a result of the strong mitigation felt able however to reduce the sentence sought by the Crown. 

9.        On Count 1 you are sentenced to 1 year's imprisonment, and we hope that whilst you are in prison you will be able to address some of these issues and seek some of the help that has been offered to you.

Authorities

Harrison -v- AG [2004] JCA 046.