Jersey Unreported Judgments

[2010]JRC201

ROYAL COURT

(Samedi Division)

5^th November 2010

Before     :

W. J. Bailhache, QC., Deputy Bailiff, and Jurats Le Cornu and Kerley.

The Attorney General

-v-

Russell John Barton

Gerald Anthony Kelly

Sean Gary McGahey (aka Sean Gary McGinley)

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

Russell John Barton

First Indictment

1 count of:	Breach of the peace by fighting (Count 2).
1 count of:	Obstructing a police officer (Count 3).

Second Indictment

1 count of:

Breach of the peace by fighting (Count 1).

Age:  39.

Plea: Guilty.

Details of Offence:

Affray/breach of the peace by fighting

In the early hours of 25^th June, 2010, a fight took place in St James' Street between the three defendants.  It was seen by a number of independent witnesses, several of whom told the police that they had been put in fear by the violence witnessed.  The altercation started when Barton violently kicked the front door of Kelly and McGahey's flat.  Kelly and McGahey came down into the street, Kelly brandishing a knife and McGahey an electric iron.  McGahey was seen to throw something towards Barton's face which smashed, but no glass was found at the scene.  Barton then punched Kelly and the two men began to fight, before being joined by McGahey. 

After a short fight Barton grabbed Kelly's arms and the knife he was carrying fell to the ground.  One witness described the fight as "vicious" and said that the men were punching violently but that the knife was used as a deterrent.  Another stated that he did not see McGahey use the iron as a weapon.  A further witness suggested that kicks may have been inflicted.  One of the witnesses heard Kelly and McGahey say to each other "come on, come on, we need to get to the flat, the police are coming".

Kelly and McGahey were spoken to at the scene.  Both were drunk and McGahey's shirt had blood on it.  Barton was located later the same morning at the General Hospital where he was being treated for a four inch laceration on his face.  He stated that he did not want police involvement. 

Possession of cannabis

On 21^st September, 2009, a drugs warrant was executed at Kelly's address.  A lump of cannabis weighing 8.91 grams was seized. 

Breach of the peace and obstruction

On 29^th April, 2010, police attended at a disturbance outside St James' Wine Bar.  As they approached they saw Barton push a man in the chest before walking away.  He was stopped, found to be grossly intoxicated and arrested. 

On 1st May, 2010, police officers were dealing with an unrelated incident at the Esplanade.  Barton began to interfere and was told to leave, which he eventually did.  A short time later he was seen outside Platinum Nightclub.  He had been denied entry and was refusing to leave the doorstep.  The police ordered him to leave, which he refused to do.  He refused several more times and was arrested for refusing to obey lawful orders. 

Details of Mitigation:

Guilty plea, accepted responsibility for his actions.  Had received a serious facial injury and a broken finger, may have to be amputated and renders him unable to complete community service.  Defence accepted that it was not known how the injury was caused and that it could have been punching.  Support from his partner who is a nurse and trained counsellor.  Acknowledged he had a problem with alcohol and requested an exclusion order as part of his sentence. 

Previous Convictions:

26 convictions for 88 offences, including 21 offences against the person and 15 public order offences. 

Conclusions:

First Indictment

Count 2:	2 weeks' imprisonment.
Count 3:	2 weeks' imprisonment, consecutive.

Second Indictment

Count 1:

3 months' imprisonment, concurrent to the First Indictment.

Total:  3 months and 2 weeks' imprisonment.

Sentence and Observations of Court:

A vicious fight that was clearly alcohol fuelled - precisely the behaviour the Court wishes to tackle by imposing deterrent sentences.  The conclusions for Barton were too low, but the Court impressed by progress and would suspend his sentence. 

First Indictment

Count 2:	2 weeks' imprisonment.
Count 3:	2 weeks' imprisonment, concurrent.

Second Indictment

Count 1:

6 months' imprisonment, consecutive to the First Indictment

Total:  6 months' and 2 weeks' imprisonment, suspended for 2 years.

Gerald Anthony Kelly

First Indictment

1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Affray (Count 4).

Age:  27.

Plea: Guilty.

Details of Offence:

See Barton above.

Details of Mitigation:

Guilty plea, accepts responsibility for his actions.  Risk of re-offending assessed as moderate but lower if he has employment and accommodation - offer of work before the Court.  The fight was spontaneous and happened after a degree of provocation.  Did not use the knife as a weapon. 

Previous Convictions:

1 for drunk and disorderly.

Conclusions:

First Indictment

Count 1:	2 weeks' imprisonment.
Count 4:	18 months' imprisonment, concurrent.

Total:  18 months' imprisonment.

Forfeiture and destruction of drugs and knife sought.

Sentence and Observations of Court:

A vicious fight that was clearly alcohol-fuelled - precisely the behaviour the Court wishes to tackle by imposing deterrent sentences. 

First Indictment

Conclusions granted.

Sean Gary McGahey

First Indictment

1 count of:

Affray (Count 4).

Age:  23.

Plea: Guilty.

Details of Offence:

See Barton above.

Details of Mitigation:

Guilty plea, residual youth and accepts responsibility for his actions.  Low risk of re-offending.  The fight was not premeditated and he acted out of fear.  Supportive family, pregnant girlfriend. 

Previous Convictions:

2 public order offences, 2 drug offences and 1 offence against property. 

Conclusions:

First Indictment

Count 4:

18 months' imprisonment.

Total:  18 months' imprisonment. 

Sentence and Observations of Court:

A vicious fight that was clearly alcohol-fuelled - precisely the behaviour the Court wishes to tackle by imposing deterrent sentences. 

First Indictment

Conclusions granted. 

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

Advocate C. R. Baglin for Barton.

Advocate J. W. R. Bell for Kelly.

Advocate M. R. Godden for McGahey.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The principal offences for which you are now to be sentenced relate to an incident in the early hours of the 25^th June this year, when a fight took place in St James' Street in which you three were identified.  It appears to have been started by Mr Barton who was violently kicking a front door in the street.  Thereafter, Mr Kelly came out brandishing a knife and Mr McGahey came out brandishing an iron above his head.  One witness described the incident as "a vicious fight" and said that the men were all punching each other in a very violent manner.  This witness said the knife was being used as a weapon and as a deterrent to threaten the other two guys.  The witness went on to say "I had concerns about my own safety and what might happen".  A further witness describes the man with the iron, McGahey, as not actually using it as a weapon.  A different witness said "I felt really bad.  I didn't like what I saw at all".  She estimated the whole episode lasted about thirty minutes.  Another witness saw the fight and he said "The whole incident was disturbing and upsetting due to the amount of violence involved".  It seems quite clear that this incident was alcohol-fuelled; there were a number of people causing disturbances on the streets of St Helier, and they caused innocent people to be in fear for their own safety.  This is the very conduct the Court has been anxious to tackle by the policy of imposing substantial custodial sentences for violent offences at night on the streets of St Helier, and I make that plain at the outset. 

2.        Mr Kelly, in so far as you are concerned, you and Mr McGahey are charged with affray, which is the more serious of the offences, and the Court must therefore distinguish between the conduct for which you come to be sentenced and the conduct of Mr Barton, as indeed the Crown has distinguished in its conclusions.  You took out with you a seven inch knife; the Court has seen the weapon and it is quite clearly one with which serious damage could have been done and it is fortuitous that no-one was badly injured with it.  You could have rung the police; you could have stayed inside and rung the police and ask them to come instead of which, you decided to arm yourself with a knife and sort it out yourself. 

3.        Similar considerations Mr McGahey go for you.  You could have rung the police and for the reasons that we have given we think that there is no alternative for us but to impose the sentences which the Crown has moved for on the charges of affray and in saying that we have taken into account all the factors in mitigation which have been raised by your respective counsel.  We accept that this was relatively spontaneous in the sense that you were faced with a problem but nonetheless, this was not the way to deal with it and the result was, as I have said, a drunken fight on the streets of St Helier. 

4.        Mr Barton, the Court has approached your case slightly differently because it is clear from your previous record, which is truly appalling, that you have had a number of previous convictions which show you to have been coming up to a crisis in June when this offence took place; and it is noteworthy from the offences which you committed in April and May and then again in June.  However since then it is clear that you have not committed further offences.  The Court has been impressed with the letter which your girlfriend has sent to us and is impressed also by your own letter, but most of all, has been impressed by the fact that since June, despite this crescendo of activity up until June, there has been no recurrence of difficulty.  One swallow does not make a summer however.  You still fall to be sentenced for the offences which you have committed.  What we are going to do in the sentence we now impose is to take account of the substantial progress that appears to have been made and we are going to suspend the sentence which is going to be imposed; you should be very aware that if there is any falling off from those standards which are required by that suspended sentence, if you are back in trouble for any reason at all, the sentence will have to be served. 

5.        Turning to the Indictment Mr Barton, on Count 2 of the Indictment you are sentenced to 2 weeks' imprisonment, on Count 3; 2 weeks' imprisonment, concurrent, on Count 1, which was the major offence, we do not consider the Crown's conclusions to be high enough because it was your conduct which actually started the more serious offences committed by your curfews and so we sentence you to 6 months' imprisonment, making a total of 6 months and 2 weeks imprisonment.  However we suspend that for 2 years and it follows therefore that if you commit any further offence during that period that is the sentence that you will have to serve.  We add to that an Exclusion Order for 12 months, in accordance with the present bail conditions, running from today and we also add to that a Supervision Order in accordance with the law.  That requires you to keep in touch with the supervising officer from the Probation Service in accordance with instructions given to you by that officer and requires you to notify the officer of any change of address. 

6.        Mr Kelly you are sentenced on Count 4 to 18 months' imprisonment and on Count 1 to 2 weeks' imprisonment, concurrent, making a total of 18 months' imprisonment. 

7.        Mr McGahey, you are sentenced to 18 months' imprisonment on Count 4 of the Indictment, for which you fall to be sentenced today. 

8.        We order the forfeiture and destruction of the drugs and the knife. 

Authorities

AG-v-Shewan 1999/22.

AG-v-Bree [2005] JRC177.

AG-v-Skinner [2003] 093A.