Jersey Unreported Judgments

[2008]JRC143

ROYAL COURT

(Samedi Division)

21^st August 2008

The Attorney General

-v-

Adrian Kenneth Burke

Sentencing by the Superior Number of the Royal Court, after conviction at Assize on the 24^th July, 2008, on a charge of:

Age:  43.

Plea: Not Guilty.

Details of Offence:

The offence was committed on 9^th December, 1990.  The defendant was aged 25 years old at the time.  There some background animosity between the defendant and the victim.  Both attended Madison's Nightclub on the night of the offence.  Words were exchanged inside the nightclub but there was no further trouble inside.  The defendant was the first to leave.  He had a large glass in his hand.  He was standing in the area outside the club.  The victim then left.  The defendant glassed the victim in the forehead in a surprise attack.  The glass had been broken beforehand.  The defendant continued to attack the victim, inflicting minor lacerations to the chin and neck.  The defendant fled the scene.  The victim was taken to hospital and treated.  Glass was removed from the eight inch forehead wound.  The defendant was charged in 1990 with Grave and Criminal assault but fled to the USA in 1991 where he remained until early 2008.  There is an arrest warrant outstanding for his arrest in the USA for breach of Probation. 

Details of Mitigation:

Very limited.  Not Guilty plea and resulting trial.  No remorse.  He was the "real victim" as per his sentencing reports.

Previous Convictions:

Defendant had no previous convictions at the time but had been convicted in USA for disorderly conduct (2006) and domestic battery (2007).

Conclusions:

Starting point: 5 years'.

6 months' imprisonment for the absconding.

Total: 4 years' 9 months' imprisonment.

Sentence and Observations of Court:

Grievous injuries.  No remorse. No provocation at the time offence committed whatever the background.  Case of Scobie followed.  Absconding was an aggravating feature that justified increase in sentence.  Six months proper increase in sentence.  Prosecution conclusions granted.

Conclusions granted.

H. Sharp, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This defendant was convicted by the unanimous verdict of the Jury, of a grave and criminal assault upon another man outside a nightclub in 1990.  Burke was charged with the offence in early 1991 and bailed for his appearance before the Magistrate's Court.  Before appearing before the Magistrate he left the jurisdiction and went to live in the USA for some seventeen years until returning to Jersey in 2007. 

2.        The first question which the Court has considered is whether the offence is aggravated by the defendant's decision in 1991 to leave the jurisdiction and to avoid trial.  On the authority of Scobie-v-AG [2003] JCA 009 it is clear that absconding from the jurisdiction prior to trial is an aggravating feature unless there is evidence that the offender has in the meantime reformed himself and led a blameless life.  Although the circumstances of the matter are not entirely clear, it is a question of record that the defendant was convicted in the USA in 2006 of a domestic battery and was placed on probation.  The defendant is in breach of that probation order and a warrant has been issued for his arrest in the USA.  The defendant can not therefore be said to have led a wholly blameless life since absconding from the Island.  The Crown Advocate increased the conclusions for which he had moved by 6 months in respect of this aggravating feature. 

3.        Having considered carefully the judgment of the Court of Appeal in Scobie we agree with the Crown Advocate both that it is in general appropriate to increase a sentence where an offender absconds prior to a trial, and that in the circumstances of this case the appropriate additional sentence is one of 6 months imprisonment. 

4.        The Court has taken carefully into consideration all the relevant factors helpfully listed in the judgment of the Court of Appeal in Harrison-v-AG [2004] JLR 111.  In summary this was a very serious grave and criminal assault involving the use of a broken glass on at least two occasions causing grievous injuries to the victim.  It was an unprovoked attack whatever the background animosity between the victim and the defendant may have been.  In mitigation counsel has pointed out that the defendant was of good character prior to the offence and maintained that good character until 2006.  He is not regarded by the probation service as constituting a danger to the public nor is he in need of any treatment. 

5.        Burke, we have read your letter and indeed the other references submitted to us.  You may regard yourself as a peaceful man but the Jury found that on this occasion you behaved in a very violent and aggressive way, which could easily have had much more serious consequences than in fact was the case.

6.         We think that the Crown Advocate has taken all the factors properly into account, the conclusions are granted and you are sentenced to 4 years' and 9 months' imprisonment.

Authorities

Scobie-v-AG [2003] JCA 009.

Harrison-v-AG [2004] JLR 111.