Jersey Unreported Judgments

[2011]JRC086

ROYAL COURT

(Samedi Division)

19^th April 2011

Before     :

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

The Attorney General

-v-

Christopher Hervé

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

1 count of:

Grave and criminal assault (Count 1).

Age:  22.

Plea: Guilty.

Details of Offence:

On an evening in November 2010, the accused was in town celebrating his 22^nd birthday. 

During the early hours of the following morning the accused (now in the company of three other men, Males 1, 3 and 4) and two females, were refused entry to La Cala. 

The victim had been at home that night and had consumed a small bottle of vodka.  He had decided to go for a walk and had encountered a friend. 

The exact sequence of immediate events hereafter was unclear, however, a short while later Male 1 was recorded on CCTV outside Burtons in Halkett Place with the victim and his female friend, walking in the direction of the precinct.  The trio were engaged in an animated discussion.  There was pushing and a scuffle broke out between the victim and Male 1 resulting in the victim being thrown against the window of Burtons in King Street.  The victim's female friend attempted to separate the fighting men.  The victim was thrown to the ground by Male 1 who delivered a forceful kick to the area of his upper body/head. 

Following a further animated discussion the victim and his female friend walked away down King Street in the direction of New Street.  They were followed by Male 1 who was on his mobile.  Male 1 caught up with them outside HSBC.  More animated discussion, pushing and prodding followed. 

Male 1 ran down King Street towards New Street chased by the victim's female friend.  The victim followed at a distance.  Male 1 turned left into New Cut and continued in the direction of Conway Street.  He was followed by the victim and his female friend. 

At about this time the accused was recorded on CCTV at the Weighbridge.  He appeared to be using his mobile and began to run in the direction of the Town Church. 

Shortly afterwards the victim ran through the paved area at Broad Street, past the Blue Note Bar towards King Street.  He was pursued at speed by Male 1, the accused and his female friend (the victim's). 

The victim continued running, turning left in the direction of Charing Cross.  He stumbled and fell in the precinct.  As he attempted to get up Male 1 delivered a very hard kick to the area of his upper body causing his head to jerk backwards, followed by a further very hard kick to the area of his upper body/head. 

By now the victim's female friend had caught up.  She went to the ground in an attempt to shield the victim from further attack.  The accused arrived.  He delivered a running kick to the area of the victim's upper body/head.  He then took a step back and delivered a hard aimed kick to the same area causing both the victim and his friend's heads to jerk backwards.  As the victim and his female friend lay on the ground Male 1 delivered two light to medium prod-like kicks to the victim's body. 

An occupant of a flat opposite heard Male 1 shouting at the victim about damage to his top.  The accused approached the victim - who was lying prone with his female friend on the floor - and delivered a light kick to the area of his upper body/back of the head.  This was followed by a medium strength kick and a further hard kick to the victim's body by Male 1.  The accused delivered a further light kick to the area of the victim's upper body/back of the head. 

The occupant of a nearby flat called the police.  The two females previously refused entry to La Cala and Males 3 and 4 arrived.  Shortly afterwards the two females left.  After a short break Males 1 and 4 delivered further punches to the victim. 

The victim and his female friend got up and walked towards the cider press and sat down.  Shortly afterwards the accused and Males 1, 3 and 4 began to walk away.  As they did so Male 1 delivered two further hard punches to the victim.  Those involved were subsequently seen on CCTV running from the scene.  The police arrived but nobody involved in the attack was located. 

The victim attended Accident and Emergency where he was treated by fixation for a fractured jaw, bruises to his chest and abrasions to his right knee.  The following day he was examined by the police doctor who noted bruising to his inner lower lip and three small abrasions on his neck. 

Following further enquiries the accused was arrested some time later at work.  He claimed not to have done anything and invited police to look at the CCTV.  Later at Police Headquarters he suggested that there was no evidence against him but admitted to being at the scene. 

During interview the accused admitted being present at the scene but repeated he was innocent of any wrongdoing. 

He initially said he had been in Chambers and had met some men from Manchester.  He had then gone alone to La Cala but had been refused entry.  He had carried on walking and had bumped into the men from Manchester.  They had returned to Chambers where they had a few drinks.  He then lost them.  Later he had bumped into one of them near the Weighbridge.  The man had received a call saying his mate was in trouble.  The accused and the man had ended up running through the streets.  He had encountered a man who ran off and a screaming lady who he had tried to calm down.  He had left when he had heard the police.  The accused said he had never met the men from Manchester before. 

He then changed his story and said he had gone to La Cala with the men from Manchester and two girls he had met in Chambers.  He said he had seen Male 4 outside the Burger Palace and had run with him to the area of Broad Street attempting to find Male 1 who was being robbed by two other men.  He and Male 4 had come upon Male 1 in Broad Street.  His jumper was ripped.  Male 1 had identified the man who had attempted to rob him and had started running after him.  The accused said he had followed with Male 4.  The attacker had fallen to the floor and the woman he was with had jumped on top of him to stop him getting hurt.  She was screaming and the accused had tried to placate her.  The accused said he did not know why he had run after the man with Males 1 and 4. 

The accused repeatedly denied being involved in the attack.  He said he remembered Male 1 punching the fallen man but did not remember Male 1 kicking him. 

Having been shown CCTV evidence the accused identified Male 1 kicking the victim.  He said he could not remember kicking the victim and honestly thought he had done nothing.  He later described his first kick as a "little tap" and claimed his second kick had not been delivered with very much force.  He denied the second kick had been delivered anywhere near to the area of the victim's head. 

As the interview continued the accused admitted consuming between ten and fifteen pints of Carling at The Farmers Inn before coming into town.  On arriving in town he had consumed a couple of vodkas with coke.  He had been "steaming".  The accused said he was sorry for everything. 

For the purposes of sentencing the Crown accepted that:-

(i)             Male 1 played by far the dominant/lead role in the attack; and

(ii)            On the basis of CCTV evidence it was unable to prove beyond reasonable doubt that any of the accused's kicks in fact made contact with the victim's head (although the accused was clearly reckless in this regard). 

The accused was sentenced on the basis of his part in a joint criminal enterprise. 

Details of Mitigation:

Guilty plea; remorse; residual youth; close family unit providing support. 

Previous Convictions:

Record containing minor motoring offences.  The accused had also been dealt with on two occasions at the Parish Hall for causing a breach of the peace by fighting (for which he received written cautions). 

Conclusions:

Count 1:

18 months' imprisonment.

Exclusion Order sought for 12 months upon release from custody, save for off-licences selling food.

Sentence and Observations of Court:

The accused had pleaded guilty to a grave and criminal assault in concert with others who were not before the Court.  The victim had sustained injuries including a fractured jaw.  The Prosecution accepted that the principal perpetrator was another man.  Nevertheless, the accused and Male 1 had chased the victim.  Male 1 had delivered vicious kicks.  For his part the accused had delivered four kicks to the upper body - two of which might properly be described as pokes. 

This was a joint enterprise and the accused had to accept that he was responsible for the whole of the injuries caused.  The attack had been unprovoked. The episode was disgraceful.  It was not possible to say whose kicks had fractured the victim's jaw. 

The accused admitted that he had been intoxicated and claimed he could not remember details of the incident. 

In mitigation he had his guilty plea and had expressed remorse (albeit late). 

The incident had happened because he had been out celebrating his 22^nd birthday.  He came from a stable family and had a good work record. 

The Court had found this a very difficult decision.  Nonetheless, the accused had acted disgracefully and had left a bleeding man on the ground.  He had received two previous warnings for violence related matters. 

By a majority the Court considered a custodial sentence could not be avoided.  It was determined to send out a message that it would not tolerate behaviour of this sort. 

Count 1:

12 months' imprisonment.

No Exclusion Order made.

A. J. Belhomme, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant, Christopher Hervé, has pleaded guilty to a grave and criminal assault which was committed in concert with others, who are not before the Court, upon a young man who suffered serious injuries.  Those injuries included a fractured jaw, bruises to the chest and to the face and abrasions to the right knee. 

2.        The Prosecution accepts that the principal perpetrator of the violence was another man who has not yet been identified.  However, it was the accused and this man who chased the victim through the town centre until the victim fell and the attack began.  The other man viciously punched and kicked the victim about the head and upper body on a number of occasions, while he was on the ground.  The defendant Hervé participated to the extent of four kicks to the upper body, two of which could more aptly be described as pokes with the foot.  This was however a joint enterprise and the defendant carries responsibility for the whole of this disgraceful, and so far as he was concerned, entirely unprovoked attack on the streets of St Helier.  It is not possible to say whether a kick from this defendant or from the other man was the cause of the fractured jaw.  The defendant admits that he was intoxicated to such an extent, he claims, that he could remember little of what took place. 

3.        In mitigation the defendant has pleaded guilty to the Indictment and has expressed remorse even if that was late in the day.  He was celebrating his 22^nd birthday; he comes from a stable family and has a good work record, and what happened that evening was probably out of character.  The Court has found this a very difficult decision. 

4.        You behaved disgracefully on that evening; you kicked this man who had done nothing to you and you left him bleeding on the ground with a fractured jaw.  You had been warned twice before at the Parish Hall for fighting in public.  By a majority, the decision of the Court, with some reluctance, is that a custodial sentence must be imposed in order to make it clear to others that drunken violence on the streets of the town will not be tolerated. 

5.        The sentence of the Court is that you will go to prison for 12 months; there will be no Exclusion Order. 

Authorities

Harrison-v-AG [2004] JLR 111.

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

AG-v-Q R and Baptista [2010] JRC 227.

AG-v-Porteus 2001/138.

AG-v-Smitton 1993/101.

AG-v-Bennett 1996/13.

AG-v-de Carteret [2009] JRC 242.