Jersey Unreported Judgments

[2010]JRC081

ROYAL COURT

(Samedi Division)

23^rd April 2010

Before     :

J. A. Clyde-Smith, Esq., and Jurats Le Cornu and Morgan.

The Attorney General

-v-

Luke Michael McGlone

Robert Thomas Schofield

Thomas Edward O'Donoghue

Matthew James Leatt

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

Luke Michael McGlone

1 count of:	Affray (Count 1).
1 count of:	Obstructing a police officer (Count 3).

Age:  19.

Plea: Guilty.

Details of Offence:

These charges stem from an affray carried out in Mulcaster Street, outside the Drift Bar, in the early hours of 31^st October, 2009, and were captured on CCTV.  All four defendants had been drinking.  McGlone, O'Donoghue and Leatt were in one group, Schofield in another.  MCGlone states in interview that their group had been asked to leave the Royal Yacht, but that he did not know why, and O'Donoghue states that he was initially talking to the door staff of the Drift Bar, which is part of the Royal Yacht, to try to defuse the situation. 

The three friends are talking to the doorman in turns, and alternatively trying to approach him or being held back by the others.  At this point Schofield appears to be asking them to move away.  At one point O'Donoghue pushes Leatt away.  Leatt bumps into a young girl, who was part of Schofiled's party, and knocks her to the ground.  Schofield, believing she had been attacked by Leatt, pushes him into the buildings across the road, where he falls to the floor.  Schofield is then pushed into the same building by McGlone, and he too falls to the floor. 

Members of the public try to separate the two men, and McGlone pushes one of them over and into the road.  He is then seen stamping on Schofield before being ushered away by a passer-by.  Leatt and Schofield then get to their feet.  Schofield then punches McGlone to the head and he falls to the floor.  Schofield crouches over him and punches him four more times.  O'Donoghue kicks Schofield to the body and delivers one more punch to his back.  Two witnesses push him away.  There is then a brief period of wrestling, McGlone and Schofield fall into the road with Schofield ending on top.  Leatt pushes Schofield and then kicks him once in the face. 

A medical examination of Schofield that night found a 1cm cut to his right eyebrow and a swelling to the eyelid, and a 3cm by 2cm abrasion to his left cheek.  Injuries to his back, shoulder and chest were found to be consistent with kicks or stamps, and the imprints of the shoes are visible.  Leatt was also seen by the Police doctor that night but no head or facial injuries were recorded. 

Obstruction

This count relates to McGlone alone.  At 0120 am on Saturday 21^st November, 2009, McGlone was seen by police arguing with door staff at the Royal Hotel as he had been refuses entry.  When an officer intervened McGlone said "I am talking to him not you" referring to the doorman, and had to be ushered away from the area.  After a few minutes McGlone returned to the area and when told again to move away said words to the effect that he would not.  He was then arrested.  

Details of Mitigation:

Guilty pleas, and three defendants had the benefit of youth.  All four had shown remorse, and the incident was out of character.  Good working/education records and reported to have good pro-social activities.

Previous Convictions:

McGlone has convictions for violently resisting arrest and escaping from custody from 2009.

Conclusions:

Count 1:	240 hours' Community Service Order.
Count 3:	40 hours' Community Service Order.

Total:  280 hours' Community Service Order.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order or 12 months' youth detention in default.
Count 3:	£200 fine or 2 weeks' youth detention in default.

Total:  180 hours' Community Service Order or 12 months' youth detention in default, plus £200 fine and 4 days in which to pay.

Exclusion Order from licensed premises with a 1^st, 4^th or 7^th category licence for a period of 6 months.

Robert Thomas Schofield

1 count of:

Affray (Count 1).

Age:  27.

Plea: Guilty.

Details of Offence:

See McGlone above

Details of Mitigation:

See McGlone above.

Previous Convictions:

None.

Conclusions:

Count 1:

240 hours' Community Service Order.

Sentence and Observations of Court:

Count 1:

240 hours' Community Service Order or 18 months' imprisonment in default.

Exclusion Order from licensed premises with a 1^st, 4^th or 7^th category licence for a period of 6 months.

Thomas Edward O'Donoghue

1 count of:

Affray (Count 1).

Age:  20.

Plea: Guilty.

Details of Offence:

See McGlone above.

Details of Mitigation:

See McGlone above.

Previous Convictions:

None.

Conclusions:

Count 1:

240 hours' Community Service Order.

Sentence and Observations of Court:

Count 1:

180 hours' Community Service Order or 12 months' youth detention in default.

Exclusion Order from licensed premises with a 1^st, 4^th or 7^th category licence for a period of 6 months.

Matthew James Leatt

1 count of:

Affray (Count 1).

Age:  18.

Plea: Guilty.

Details of Offence:

See McGlone above.

Details of Mitigation:

See McGlone above.

Previous Convictions:

None.

Conclusions:

Count 1:

180 hours' Community Service Order.

Sentence and Observations of Court:

Count 1:

180 hours' Community Service Order or 12 months' youth detention in default.

Exclusion Order from licensed premises with a 1^st, 4^th or 7^th category licence for a period of 6 months.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. J. Haines for the M.

Advocate M. R. Godden for S.

Advocate C. R. Baglin for D.

Advocate J. W. R. Bell for L.

JUDGMENT

THE commissioner:

1.        The defendants have pleaded guilty to an affray which took place in Mulcaster Street on 31^st October, 2009.  The defendants became involved in a fight in a busy street, lasting 3 to 4 minutes, and witnessed by many members of the public.  Fortunately no serious injuries were caused.  Three of the defendants are under 21 years of age and therefore the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994 apply to them, preventing the Court from imposing a sentence of youth detention unless there is no other method of dealing with them. 

2.        The case is perhaps unusual in that in the main, the defendants are all of good character, are all gainfully employed and studying, they are all involved in pro-social activities and are clearly, deeply ashamed of their conduct.  They are all assessed at a low or very low risk of re-offending. 

3.        As the Court said in AG-v-Burrell [2003] JRC 209.when determining the gravity of the offence of affray for sentencing purposes it is appropriate to consider:-

(i)        "The level of violence used;

(ii)       The scale of the affray;

(iii)      How many people were involved; and

(iv)      The extent to which it is pre-meditated or spontaneous.

Moreover, every participant has some responsibility for the actions of those with whom he is acting jointly and although it may not be possible to identify the actions of each person individually, they are all contributing to the public fear, which is at the heart of the offence, and must expect to be punished accordingly."

4.        We are satisfied that this affray was spontaneous and was not of the most serious type.  However, having regard to the CCTV footage which we have been shown, we do regard Schofield as having a greater involvement than the other three defendants in that in our view, he bears greater responsibility for the two bouts of violence that erupted between him and the other three defendants.  He is also considerably older and should have known better than to react in the way that he did. 

5.        Turning to the individual defendants:- McGlone is a keen sportsman playing football at club level.  He also enjoys training at a gym and has an Active Card.  He is in his second year of an apprenticeship as an electrician and has good prospects.  He does have a previous conviction in 2009 for which he was fined and he faces a further minor charge of obstruction which took place subsequently.  He comes from a stable family who are supportive of him.  He, as I have said, is assessed at a low risk of re-offending.

6.        Schofield is the oldest of the defendants and, noting the observations of the Deputy Bailiff in AG-v-O'Shea [2010] JRC 040, he does not benefit from the mitigation of youth but he has no previous convictions.  He has worked for the last five years as a supervisor in a mail order horticultural company.  He comes from a stable family background with a pro-social lifestyle and he, as I have already said, is assessed at a low risk of re-offending. 

7.        O'Donoghue is also a keen footballer, playing for a local team, and comes from a stable background.  He also scuba dives with his father.  He has no previous convictions.  He is currently employed as a labourer but was part way through an application for an air traffic role with the Royal Air Force, having passed the first interview.  That has now, as a result of these proceedings, had to be postponed for some two years.  He is also attending evening classes in order to complete the certificate of offshore administration and has passed his first module.  He is assessed at a very low risk of re-offending. 

8.        Leatt is also a keen footballer playing for a local senior team and comes from a stable background and he has no previous convictions.  He left school with 8 GCES's and is serving an apprenticeship as an electrical engineer.  He attends college on a weekly basis and expects to pass his City and Guilds exams and to be fully qualified in 2011.  He too is assessed at a low risk of re-offending. 

9.        All of the defendants have shown real remorse and we accept that their conduct was out of character.  None would appear to have a general problem with alcohol consumption but accept that on this occasion alcohol was a contributory factor and all had consumed unusually large amounts; they say they would not have behaved in this way if sober. 

10.      In general terms we accept the conclusions of the Crown that we can avoid a custodial sentence.  It is an inescapable fact however, that alcohol and the culture of binge drinking nearly always plays a part in the violence seen on our streets; the Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998 was passed in recognition of this problem and we have determined therefore to impose exclusion orders.  An exclusion order strikes at the culture of excessive drinking which affects so many young people today and which leads to the violent offending we so often see on our streets.  In our view, the Court should do whatever it can to strike at that culture and an exclusion order is one weapon at its disposal. 

11.      Finally before turning to the individual sentences, we accept Advocate Haines' submission that the obstruction charge in relation to his client would not ordinarily attract a custodial sentence and should therefore be dealt with by way of a fine. 

12.      You are therefore sentenced as follows:- McGlone, you will serve 180 hours' community service in relation to the affray charge, which is the equivalent of 12 months' youth detention.  In relation to the obstruction charge, you will be fined £200 with 4 days in which to pay, or 2 weeks' in default.  That makes a total of 180 hours' community service in your case. 

13.      Schofield, you will serve 240 hours' community service, which is the equivalent of 18 months' imprisonment. 

14.      O'Donoghue, you will serve 180 hours' community service, which is the equivalent of 12 months' youth detention.

15.      Leatt, you will serve 180 hours' community service, which is the equivalent of 12 months' youth detention.

16.      In relation to the Exclusion Order, all four defendants, and this is in relation to the affray charge, will be prohibited for a period of 6 months' from this day, from entering all licensed premises holding a 1^st, 4^th and 7^th category licence, or any combination thereof as indicated, with the following exemptions:-

(i)        we exempt the multiplex cinema;

(ii)       the Jersey Arts Centre;

(iii)      the Jersey Airport;

(iv)      the ferry terminal at Elizabeth Harbour;

(v)       the Opera House;

(vi)      any premises which any of the defendants may attend for the purpose of playing football; and

(vii)     any premises which the defendants may need to attend for the purpose of their employment or study. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Burrell [2003] JRC 209.

AG-v-O'Shea [2010] JRC 040.

Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998.

AG-v-Carteret [2009] JRC 242.

AG-v-Gallery [2009] JRC 190.