Jersey Unreported Judgments

[2010]JRC097

ROYAL COURT

(Samedi Division)

25^th May 2010

The Attorney General

-v-

Andrew Muir

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

Age:  44.

Plea: Guilty.

Details of Offence:

This was an extraordinary case involving extreme provocation. 

Andrew Muir, Christophe Debieuvre and Paulo Freitas lived together at a property in Trinity.  On the night of the incident, Debieuvre went into the kitchen where Freitas was cooking dinner.  Debieuvre picked up a kitchen knife and placed it in his back pocket saying "I'm going to kill the Scottish" (Muir).  Debieuvre then went back into the lounge where there was an exchange of angry words with Muir.  Debieuvre returned to the kitchen and picked up a saucepan containing hot chip oil.  Debieuvre entered the lounge once again and proceeded to pour the hot chip oil over Muir, who was sitting on the sofa. 

Debieuvre threatened Muir and Freitas again and reached for his back pocket, where Freitas knew he had a kitchen knife.  In an accepted act of self-defence, Freitas punched Debieuvre to the ground.  Following the extreme provocation from Debieuvre, Muir approached Debieuvre and kicked him a couple of times.  It is not clear whether the kicks were administered to Debieuvre's head.  Freitas pulled Muir away from Debieuvre and went back into the kitchen to call the police.  Muir proceeded to kick Debieuvre.  Upon returning to the lounge, Freitas witnessed Muir kick Debieuvre three times to his head. 

Debieuvre's injuries were severe and he was also burnt by the hot oil as it dripped from Muir, who was standing over him.  In addition to these burns, Debieuvre had two front teeth knocked loose and a conjunctival haemorrhage. 

Muir was scalded extensively.  He had first degree burns. 

When interviewed under caution two days after the event, Muir said that he could not remember anything beyond the point in which the hot oil had been poured over him.  He initially reserved his plea and then pleaded not guilty.  Muir later pleaded guilty to grave and criminal assault. 

Debieuvre also pleaded guilty to grave and criminal assault however as a result of conflicting facts a Newton Hearing was scheduled. 

Details of Mitigation:

Eventual guilty plea entered; delay in sentencing, direct result of Debieuvre's insistence on a Newton Hearing; extreme provocation leading to exceptional circumstances; psychological damage suffered by Muir; previous convictions are spent, having occurred over ten years ago; 10 year old daughter to whom he provides maintenance; co-operative with police and good references and continuous employment record.  

Previous Convictions:

7 convictions for 9 offences including offences against the person, offences relating to police/courts/prisons, and offence against property, a public order offence and a miscellaneous offence. 

Conclusions:

Sentence and Observations of Court:

The Court made reference to the unusual nature of the offence as it was preceded by angry words and extreme provocation. 

This provocation led to what the Court described as extreme circumstances. 

Conclusions granted, suspended for a period of 2 years.

S. M. Baker, Esq., Crown Advocate.

Advocate J. M. P. Gleeson for the Defendant.

JUDGMENT

THE commissioner:

1.        Muir is to be sentenced for an offence of grave and criminal assault committed when he kicked a Frenchman, lying semi-conscious on the floor, to the head on several occasions.  The Frenchman lost two teeth and suffered bruising but otherwise was fortunately not injured to any greater extent.  The offence is unusual in the sense that the attack by Muir was preceded by a violent assault upon him of almost unbelievable ferocity.  There had been angry words exchanged between Muir and the Frenchman following which the Frenchman went into the kitchen of the flat returning with a saucepan of boiling oil.  The oil was poured over Muir's head and shoulders causing severe burns and excruciating pain.  It was as extreme an example of provocation as it is possible to imagine.  Muir has suffered psychological damage and received medical treatment for his burns over an extended period.  The Frenchman was hospitalised for three days but appears to have made a full recovery. 

2.        The Court has been referred by the Crown Advocate to the case of Harrison-v-AG [2004] JCA046 and has considered carefully each of the relevant Harrison factors.  There are however two other factors which are material to our decision.  The first is that the defendant Muir is in a position of responsibility with his employer for whom the Frenchman has also worked.  After the Frenchman had been properly dismissed the defendant later procured that the Frenchman's job was returned to him and he offered him accommodation and a loan to enable him to get back on his feet.  The second factor is that during the long procedural history to this case, there was a stage when the Frenchman and Muir appeared before the Superior Number and an indication was given that the Court was minded to pass a suspended sentence upon Muir.  This is, as defence counsel has rightly submitted, a wholly exceptional case.  Having given very careful consideration to all the submissions made to us we are going to grant the conclusions and impose a sentence of 2 years' imprisonment but exercise our power under the Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2003 to suspend that sentence for a period of 2 years. 

3.        Muir, as you have heard we are sentencing you to 2 years' imprisonment but we will suspend that sentence and what that means is that if you do not commit any other offence punishable with imprisonment over the next 2 years, then the matter will be at an end.  If on the other hand you do come back before the Court and are convicted of an offence punishable with imprisonment, it will be open to the Court to activate this sentence of 2 years' imprisonment.  We hope the Court will not see you again. 

Authorities

Harrison-v-AG [2004] JCA046.

Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2003.

R-v-Hussain and Hussain [2010] EWCA Crim 94.

R-v-Taberer [2009] EWCA Crim 1539.

Rehabilitation of Offenders (Jersey) Law 2001.

Extract from the Sentencing Guidelines:- Assault and other offences against the person.

Archbold 2010:- Criminal Pleading, Evidence and Practice.

Extract from Criminal Appeal Reports 1982.