Jersey Unreported Judgments

[2010]JRC077

ROYAL COURT

(Samedi Division)

20^th April 2010

The Attorney General

-v-

James Joseph O'Brien

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

Age:  48.

Plea: Guilty.

Details of Offence:

The defendant and the victim had been in a relationship for 10 months.  They lived separate and apart but met on a regular basis.  On the night in question both parties set out separately but met in the same public house.  The victim made it clear that she did not welcome the defendant's attention and that she was going home on her own. 

The defendant followed the victim out of the pub and the victim made it clear again that she was going home alone.  She was followed by the defendant who was angry and abusive.  On two separate occasions she pushed him away from her.  Walking up Bath Street the defendant suddenly grabbed the victim with both hands by the shoulder and forcibly threw her to the ground.  She was lying face down.  He took two steps and delivered a full bodied kick at her head.  It connected with the rear of her head.  The defendant then walked away (Count 1). 

The victim returned home and she then received, over an eight hour period, some fifteen menacing texts.  The texts were abusive and made a variety of threats to kill her, slit her throat, kill her when she was on her own, kill her in front of her son, et cetera.  The defendant admitted sending the texts and admitted sending them with the intention of putting the victim in fear so she did not report the assault to the police.  He admitted throwing her to the ground but denied kicking her.  The incident caught on CCTV and denials, therefore, unrealistic.  Entered guilty plea on Indictment.  Crown carried out assessment as to the seriousness of the grave and criminal assault having regard to the factors identified in Harrison-v-AG [2004] JLR 111 This was a deliberate assault, a blow was aimed.  The offence committed due to loss of control/temper.  Kick was a full bodied one.  Physical injuries were relatively minor although psychological impact upon the victim.  A shod foot was used.  No provocation was offered by the victim.  The victim had given a retraction statement but identified a variety of psychological affects suffered by her in consequence of the offence.  Defendant had a history of violent offending.  Had a not guilty plea been entered the Crown would have considered the proper sentence to be one of 3 years' imprisonment. 

The Crown contended only appropriate sentence was that of a custodial sentence and that the telecommunications offences were akin to attempting to pervert the course of justice and, therefore, warranted a consecutive sentence. 

Details of Mitigation:

The Crown

Guilty plea entered on indictment.  Not overly co-operative in interview with the police.  Denied the grave and criminal assault.  Denials unrealistic.  He did not have the benefit of youth or good character albeit last court appearance was some nine years previous.  Regard had to be given to the content of the various reports.  At moderate risk of re-offending.  Query as to whether expressions of remorse genuine. 

The Defence

The offence was not premeditated.  Minor injuries sustained.  Kick not aimed at head.  Previous convictions were historical.  No history of domestic violence.  Early guilty plea on Indictment.  Not in breach of bail.  He had difficulty trying to understand how he could have committed these offences.  Reports' individual had outstanding issues following death of wife.  Relationship with victim was tempestuous one.  They had been in contact since the offence and are friends.  Had support of family.  Lost employment but had offers of employment.  Suffering depression.  Suggested Community Service Order.  Sentenced moved for was too high. 

Previous Convictions:

9 convictions for a total of 31 offences including offences of assault, affray, larceny, malicious damage, assault on police, public order and motoring. 

Conclusions:

Starting point 3 years' imprisonment.

Total:  22 months' imprisonment.

Sentence and Observations of Court:

Defendant was a 48 year old man who had been in an intimate relationship with the victim for some 10 months.  They did not live together.  The victim had left Fridays pub making it clear that she was going home alone.  The defendant followed her and pestered her.  He became angry and abusive.  Victim pushed him away on two occasions.  He suddenly grabbed her two handed by the shoulders and threw her forcibly to the ground and then when she was lying face down, took two steps and delivered a full bodied kick.  The victim saw the kick coming and covered her head with her hands.  It is unclear from CCTV where kick landed.  Fortunately she did not sustain serious injury.  Defendant walked off.  Over a period of 8 hours thereafter sent 15 threatening text messages which included threats to slit her throat, to kill her when she did not expect it, get her on the way to work et cetera.  He made her scared.  She was still receiving the texts when she attended Police Headquarters to report the offences.  Psychological impact was clear from her statement.  The defendant was 48 years and had a bad record albeit apart from one minor matter had stayed out of trouble for 23 years.  Alcohol not the cause of the offence but a contributory factor.  Been a care worker for 16 years but had lost his job in consequence of offence.  Not overly co-operative but had pleaded guilty.  Court agreed with the Crown that it was bad enough that the Court had to deal with teenagers misbehaving let alone mature middle aged men.  Offence was aggravated by alcohol and by kicking a defenceless female whilst on the floor.  The Court has given very careful consideration to the reports and the various letters et cetera put before it.  Offence surprising given his employment background et cetera.  The case was too serious for a non-custodial.  Violence in the streets of St Helier would not be tolerated.  It did not consider the Crown's approach or conclusions incorrect.  However, the Court had heard a plea for mercy which it had accepted and, therefore, felt able to reduce the conclusions slightly. 

Total:  12 months' imprisonment.

J. C. Gollop, Esq., Crown Advocate.

Advocate L. K. A. Richardson for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant, who is 48, and the victim had been in an intimate relationship for 10 months although they did not live together.  On the night of the 12^th December, 2009, the victim left Fridays, making it clear to the defendant that she wanted to go home alone.  The defendant followed her, pestering her to allow him to come back with her, and becoming angry and abusive.  She had to push him off on two occasions.  In Bath Street the defendant suddenly grabbed the victim around the shoulders with both hands and threw her forcefully to the ground.  She was lying faced down on the ground when he took a short run forward giving her a full bodied kick.  The victim, seeing the kick coming, covered her head with her hands and her recollection was that the blow landed on the back of her head, although this is not clear from the CCTV and there was no apparent injury to the back of her head.  Indeed the victim, fortunately, did not suffer serious injury from the assault.  The defendant then walked off. 

2.        Subsequently over a period of some 8 hours the defendant sent the victim numerous threatening text messages directly aimed at preventing her from reporting the assault to the police.  The messages included threats to slit her throat if she called the police, to kill her when she did not expect it, to get her on her way to work et cetera.  The messages made the victim very scared and she was still receiving them, having been awake all night, when she attended the police station at 0745 in the morning.  The psychological impact of these events on the victim is clear from her statement. 

3.        The defendant is 48 and has a bad record, although apart from one relatively minor incident, he has steered clear of trouble for the last 23 years.  Alcohol was not a cause of the assault but may have been a contributing factor.  He has been a care worker in the psychiatric services, supporting adults with specials needs for some 16 years, but has been dismissed as a result of the current offences.  He was not overly co-operative with the police in interview but he has pleaded guilty.  He is assessed as being at a moderate risk of re-offending. 

4.        As the Crown has put it, it is bad enough to have drunken teenagers committing acts of violence on the streets, without middle aged and purportedly mature males acting in such a way.  The offence is aggravated by the consumption of alcohol and by the kicking of a defenceless female with a shod foot. 

5.        We have given very careful consideration to the reports and to the mitigation ably put forward by Advocate Richardson.  We have paid regard to the letters that have been written to us, in particular those from the defendant, and from his daughter.  We find the defendant's conduct inexplicable, particularly in the context of his work caring for adults with special needs, but at the end of the day these offences are just too serious to permit a non-custodial outcome.  Violent assaults on the streets of St Helier will not be tolerated.

6.        We do not criticise the conclusions and approach of the Crown but having read the victim's plea for us to exercise mercy, we have decided in our discretion to do so, and therefore to reduce the conclusions for that reason. 

7.        On Count 1 you are sentenced to 12 months' imprisonment, on Count 2 you are sentenced to 4 months' imprisonment, concurrent, which gives rise to a total sentence of 12 months' imprisonment. 

Authorities

Harrison-v-AG [2004] JLR 111.

Telecommunications (Jersey) Law 2002.