Jersey Unreported Judgments

[2010]JRC194

ROYAL COURT

(Samedi Division)

22^nd October 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, and Jurats Le Cornu and Nicolle.

The Attorney General

-v-

Andrius Baltrusaitis

Ionut Tecuceanu

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

Andrius Baltrusaitis

1 count of:

Affray (Count 1).

Age:  23.

Plea: Guilty.

Details of Offence:

Baltrusaitis was in a local night club and became involved in an altercation with a group of other people.  Within that group there was a male Reece Roberts who was subsequently to become the victim of the grave and criminal assault committed by Tecuceanu.  Roberts originally also charged with affray but the Crown had accepted his not guilty plea on grounds of self defence. 

Baltrusaitis had left the night club and had met Tecuceanu.  They had not known each other prior to this.  They had then encountered Mr Roberts' group and the incident was caught on CCTV.  One of Mr Roberts' group squared up to Baltrusaitis and bumps him with his stomach.  Baltrusaitis then takes a step back and head butts the male to the face who then takes no further part in matters.  Mr Roberts punches Baltrusaitis in the face and a fight ensures in which both defendants throw punches resulting in Mr Roberts falling to the ground.  As Mr Roberts gets to his feet Baltrusaitis swings his leg back so as to kick him but he loses his balance and the kick does not make contact.  Mr Roberts is backed against a window and is confronted by both Baltrusaitis and Tecuceanu.  Mr Roberts then punches Tecuceanu and lunges at Baltrusaitis.  Tecuceanu throws punches which results in Mr Roberts being knocked to the ground and then kicks him twice to the head with the first kick landing hard on Mr Roberts' jaw.  He loses consciousness.  Both defendants subsequently arrested and interviewed and made admissions.  Tecuceanu when shown the CCTV of the incident was shocked at his behaviour.  Both apologised. 

Mr Roberts sustained a fracture of his right mandible (lower jaw).  Left with scars from surgery and stated felt anxious when out on the street. 

The Crown contended on the authorities that those who join affrays have a measure of responsibility for the actions of the others involved in that affray.  In relation to the grave and criminal assault the Crown considered the relevant factors of Harrison-v-AG [2004] JLR 111. 

Details of Mitigation:

The Crown

Guilty plea; co-operative, benefit of residual youth and previous good character.  Assessed at being of low risk of re-offending. 

Defence

The defendant had been in Jersey for some six months and had been in the Island for some six weeks at the time of the offence.  Guilty plea; good character; remorse and regret.  Recommended that Mr Roberts gave as good as he got.  Just turned 23.  Low risk of re-offending.  Strong work ethic.  Suggested sentence of Community Service Order.  In relation to the recommendation for deportation which was sought, stated this was disproportionate. 

Previous Convictions:

None. 

Conclusions:

Count 1:

12 months' imprisonment.

Recommendation for deportation order sought.

Sentence and Observations of Court:

The Court had found it a very difficult case.  The Court had often stated that where there had been alcohol fuelled violence on the streets of the Island such behaviour was completely unacceptable and would lead to custodial sentences.  Such offences were even more serious when the violence degenerated to the kick of a man in the head whilst on the ground.  At the same time the Court had to do justice to the broader sense of sentencing.  The Court was uncomfortable that whilst these two defendants were before the Court whilst on the facts two other males appear to have been equally guilty of affray.  The fact that Mr Roberts was injured was not a reason for not prosecuting.  However, it is not for the Court to speculate as to the reasons why the Prosecution made the decision it did.  The Court regarded this imbalance as exceptional justifying a departure from the usual policy but it was not to be seen as any form of precedent.  Baltrusaitis had behaved stupidly and aggressively.  He should have walked away.  Partly responsible for the fight spreading and putting others in fear.  However, he was not going to achieve a custodial.  The Court had taken into account his good character, his guilty plea and the other mitigation put forward. 

Count 1:

120 hours' Community Service Order or 6 months' imprisonment in default.

Turning to the question of deportation the Court accepted that both men had acted out of character.  No basis to consider that their continuing presence would be detrimental.  On the contrary both of them, provided they did not get involved in such matters again, had a lot to offer the Island. 

No recommendation for deportation made.

Ionut Tecuceanu

1 count of:	Affray (Count 1).
1 count of:	Grave and criminal assault (Count 2).

Age:  22.

Plea: Guilty.

Details of Offence:

See Baltrusaitis above.

Details of Mitigation:

The Crown

Guilty plea; co-operation; residual youth; previous good character and assessed at low risk of re-offending. 

Defence

Guilty plea; remorse; regret; good character; only 21 at the time of the offence.  Good work record and supporting references.  Wished to apologise to victim in person.  Prepared to pay compensation.  Admitted to over reacting and whilst had the least involvement, his involvement had the most serious consequences.  Moment of madness.  A suggested sentence of Community Service Order.  Recommendation for deportation opposed.  Contended could not be shown his presence detrimental to the Island.  The indication was that he would not re-offend, had remorse, good work record, family and suitable background.  No ongoing detriment to the Island. 

Previous Convictions:

No previous convictions. 

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total:  2 years' imprisonment. 

Recommendation for deportation order sought.

Sentence and Observations of Court:

The Court had hesitated in the case of Tecuceanu but could deal with him in a similar way.  He behaved disgracefully.  Nothing excuses kicking a man on the ground.  Because of unusual background and the available mitigation i.e. early guilty plea, previous good character, remorse etc, the Court felt able to impose a non-custodial sentence. 

Count 1:	312 hours' Community Service Order.
Count 2:	312 hours' Community Service Order, concurrent (to be completed within a period of 2 years) or 2 years' imprisonment in default.  .

Total:  312 hours' Community Service Order, to be completed within a period of 2 years. 

Turning to the question of deportation the Court accepted that both men had acted out of character.  No basis to consider that their continuing presence would be detrimental.  On the contrary both of them, provided they did not get involved in such matters again, had a lot to offer the Island. 

No recommendation for deportation made. 

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

Advocate D. P. Le Maistre for the Baltrusaitis.

Advocate S. E. Fitz for Tecuceanu.

JUDGMENT

THE commissioner:

1.        The Court has found this to be a very difficult case.  The Court has often stated that alcohol-fuelled violence on the streets of this Island is completely unacceptable and will lead to custodial sentences.  It is even more serious when that violence degenerates to kicking a man in the head when he is on the ground.  At the same time the Court has to try to do justice in the broadest sense and we are uncomfortable that these defendants are before the Court while on the facts as presented to us two others appear to have been equally guilty of affray.  The fact that they were injured in the mêlée is not a reason for not prosecuting. 

2.        The affray began because Brookes squared up to Baltrusaitis and aggressively bumped him.  It continued because Roberts then punched Baltrusaitis after he had responded in self defence to Brookes' attack.  But for the grave and criminal assault later committed by Tecuceanu, we would have regarded these defendants as being no more guilty of drunken aggression than were the other two men involved.  It is not for us to speculate on the reasons for decisions taken by the Prosecution and there may be other factors of which we are unaware.  However, we regard this imbalance as being sufficiently exceptional to require us to depart from the Court's usual sentencing policy in cases of this kind; it should not be taken as a precedent for sentencing purposes. 

3.        Baltrusaitis, you behaved stupidly and aggressively.  You should have walked away and you were in part responsible for a frightening spectacle which must have put others in great fear.  We will not impose a custodial sentence for the reasons that we have given but we must punish you nonetheless.  We take note of your previous good character, your guilty plea and all the other important mitigation to which your Advocate has made reference. 

4.        The sentence of the Court is that you will perform 120 hours of community service to the satisfaction of the community service organiser and if you fail to do that you will serve 6 months' imprisonment. 

5.        Tecuceanu, we have hesitated a great deal before concluding that we can deal with your case in a similar way.  You behaved disgracefully.  Even if there was provocation nothing excuses, as you know, the kicking of a man on the ground.  It is only because of the unusual background to this case and of all the things that your counsel has rightly said about your previous good character, your work ethic and your remorse that we are not going to send you to prison. 

6.        The sentence of the Court is that you will perform 312 hours of community service to the satisfaction of the community service organiser and that will be completed within 24 months and the alternative, if you do not perform that, is that you will go to prison for 2 years. 

7.        Now we turn to the question of deportation.  It follows from what we have said that we do not think that this isolated event, which we accept was out of character for both these young men, is a reason for concluding that their continued presence in the Island is not in the public interest.  On the contrary, we think that both of them, so long as they do not ever get involved in offences of this kind, have much to offer the Island.  We will make no recommendation for deportation. 

Authorities

Archbold Criminal Pleading Evidence & Practice 2010.

AG-v-Burrell [2003] JLR N 53.

AG-v-Burrell [2003] JRC 209.

AG-v-Aubin [2007] JLR N 42.

AG-v-Aubin [2007] JRC 119.

Harrison-v-AG [2004] JLR 111.

AG-v-Richomme [2006] JRC 068.

Camacho-v-AG [2007] JLR 462.

R-v-Compassi (1987) 9 Cr App R (S) 270.

R-v-Maftonian [2006] 1 Cr App R (S) 14.

R-v-Tshuma (1981) 3 Cr App R (S) 97.

AG-v-Abreu [2007] JRC 081.