Jersey Unreported Judgments

[2009]JRC232

ROYAL COURT

(Samedi Division)

2^nd December 2009

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats King and Fisher.

The Attorney General

-v-

Gary Paul Evans

Joseph Samuel Povey

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

Gary Paul Evans

1 count of:

Grave and criminal assault (Count 1).

Age:  30.

Plea: Guilty.

Details of Offence:

On 17^th July, 2009, CCTV cameras in Burrard Street captured a fight taking place outside "Bean around the World".  It involved six men, including the two defendants.  There were no eye witnesses other than the film.  When the police arrived at the scene, none of the six men involved wished to make a complaint.  The two defendants were identified from the CCTV due to their distinct clothing and actions. 

Evans was initially seen pulling other men away from the fighting.  However, towards the end he punched a man to the floor and forcefully kicked him twice to the head (Count 1).  Povey was seen grappling with the other men, and was punched several times and thrown against a stationary car. However, it was once the fighting had died down, and when there was no reason to do so, that Povey was seen punching a man twice in the face (Count 2).  There were no apparent injuries caused. 

Evans and Povey were both arrested.  During interview Evans admitted kicking his victim, accepting that there was no justification for his actions.  Povey declined to comment about his actions, but later told probation officers that he had been defending his son, who had also been involved in the fighting.  For the purpose of sentencing, the Crown accepted that the fighting had been started by the other men, and that had it not been for Evans' actions, Povey could have been dealt with in the lower Court.

Details of Mitigation:

Guilty plea at an early stage, co-operation, remorse, out of character, low risk of re-offending, good work record, young family.

Previous Convictions:

None relevant.

Conclusions:

Count 1:

12 months' imprisonment.

Sentence and Observations of Court:

The Court accepted that there had been a degree of provocation, and that ultimately there had been no injuries sustained.  In the particular circumstances of the case the Court felt able to order a sentence of community service.

Count 1:

180 hours' Community Service Order, the equivalent of 12 months' imprisonment.

Joseph Samuel Povey

1 count of:

Assault (Count 2).

Age:  47.

Plea: Guilty.

Details of Offence:

See Evans above.

Details of Mitigation:

Guilty plea, clean record, remorse, low risk of re-offending.

Previous Convictions:

One for violence in 1988.

Conclusions:

Count 2:

£500 fine or 2 months' imprisonment in default.

Sentence and Observations of Court:

The Court accepted that there had been a degree of provocation, and that ultimately there had been no injuries sustained.  In the particular circumstances of the case the Court felt able to order a sentence of community service.

Count 2:

70 hours' Community Service Order, the equivalent of 2 months' imprisonment.

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

Advocate S. A. Pearmain for Evans.

Advocate C. M. Fogarty for Povey.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Court has said on many occasions that violence at night on the streets of St Helier is treated very seriously.  On this occasion the Court is faced with a fracas taking place shortly before midnight in July this year involving these two accused and a further four other men.  That fracas was captured on CCTV which is, in effect, the only independent evidence.  There are no complainants, the victims not having made any statements to the police.

2.        The charge against Mr Evans is of grave and criminal assault.  The circumstances are that although at one stage in the fracas you acted responsibly in keeping a man out of the fight, you later punched the same man and threw him to the ground after that man had managed to join the fight.  You then kicked your victim twice in the face as he lay on the ground.  As there is no victim statement it is impossible to say what injuries were sustained and the Court has proceeded on the basis that they were not at all serious despite the kicks to the head.

3.        The charge in respect of you, Mr Povey, for which you fall to be sentenced today is common assault.  In the course of the fracas you delivered two punches to the head of one of those involved in the fight.  Again there is no evidence of any serious injury.

4.        It is clear that the whole incident took place over a short time period during which you both reacted in the wrong way to the circumstances which faced you.

5.        We have taken into account everything that your Counsel has said, very ably, on your behalf.  We have taken into account your guilty plea Mr Evans, your admission and the obvious remorse which you have shown and also the behaviour early on in restraining the male, known as male one in the papers before us. 

6.        As for you Mr Povey, your involvement in the fracas was longer but the Court has proceeded on the basis that you were severely provoked and we have taken into account the references which have been put forward.  When I describe the severe provocation, the Court is proceeding on the basis in the absence of any other evidence that you intervened to prevent, as you saw it, an assault on your son. 

7.        The Court treats violence at night on the streets of St Helier very seriously.  There is no doubt at all that the normal sentence would be a custodial one, 12 months' imprisonment, which the Crown has moved for in relation to you Mr Evans and 2 months' imprisonment which is the alternative to the fine for you Mr Povey and the Court would have been prepared to impose those sentences.  However we are going to impose the alternative to a custodial sentence.  

8.        Mr Evans, you are sentenced to 180 hours' Community Service or 12 months' imprisonment in default. 

9.        Mr Povey, in the light of the agreement that you have shown today that you will perform community service, you are sentenced to 70 hours' Community Service or 2 months' imprisonment in default. 

10.      I would like to say to you in particular Mr Evans, you are very lucky.  You have let yourself and your family down.  Grave and criminal assaults nearly always leave the accused facing a prison sentence, kicking a person on the ground is a cowardly thing to do, it could have caused very serious injury.  It is only because, exceptionally, there is not a victim who has made a complaint and there is no evidence of injury and the Court is satisfied that this was wholly out of character, that custody is avoided.  But if you breach the terms of the Community Service Order in any way it is very likely you will be brought back before this Court and very probable that a prison sentence would then be imposed, I would like to make that absolutely clear to you.

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Harrison-v-AG [2004] JLR 111.