Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2011]JRC223

Royal Court

(Samedi)

22 November 2011

The Attorney General

-v-

Gary Hogg

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 9^th September, 2011, after conviction at Assize trial on 30^th August 2011 on a charge of:

Age:  26.

Plea: Guilty.

Details of Offence:

Donachie did not appear at the sentencing hearing on the 23^rd November, 2011, having left the island without the Court's permission.  His arrest was ordered.  Sentencing proceeded only in respect of Hogg.

The defendants met whilst serving prisoners at La Moye.  Both were released on licence.  On New Year's Eve both consumed substantial quantities of alcohol at Donachie's home address which he shared with his mother and mother's boyfriend.  The defendants were aggressive towards the mother's boyfriend and threatened him.  They thought the victim was calling the police but in fact was calling his brother.  Both defendants in breach of curfew licence.  The defendants assaulted the victim by punching him to the head and face - the first blow by Donachie.  Donachie then hit the victim over the head with an empty wine bottle which shattered.  This caused a 4cm laceration requiring six stitches plus other minor cuts. 

The victim's brother arrived at the property to assist and remove his brother whom he noted was covered in blood and was being punched and kicked by both defendants.  The offence was fuelled by excess alcohol and was unprovoked.  The case was presented as a joint enterprise.  Aggravated by breach of curfew licences.  The Crown suggested a starting point of 5 years' imprisonment. 

Details of Mitigation:

The Crown.

Given not guilty pleas and finding of guilt by unanimous verdict of the Jury, the Crown's view was that Hogg had no mitigation available to him.  Youth and good character were not available to him.  No other mitigation of substance. 

The Defence

Following the raising of the point by the Court, the Defence submitted that 5 years was too high as a starting point.  Distinguished Hogg's conduct from that of co-accused who threw the first punch, used the bottle and who was the main protagonist.  Suggested a starting point of between 4 and 3 years.  There was a recommendation for non-custodial in background reports.  No remorse as was appealing against conviction.  Was sympathetic to the victim and regretted distress caused to his own family and friends.  Stable background and employment and had used time previously in custody constructively.  Was of moderate risk of re-offending when drunk.  Unlike co-accused had kept to bail terms and appeared for sentencing.  Played a supporting role in the offence. 

Previous Convictions:

Thirteen convictions for a total of 44 offences including larceny, motoring including drink driving, vandalism, theft of motor vehicle and grave and criminal assault. 

Conclusions:

Starting point 5 years' imprisonment.

Sentence and Observations of Court:

The Court read the social enquiry report and other reports and references for which it appeared that he was a pleasant young man who worked hard and was well thought of when sober.  Sadly he appeared to have a problem with drink.  Court found it impossible to deal with offence other than by immediate custodial sentence.  The Court had regard to the aggravating factors and noted that he had been on licence for a very similar offence.  The Court considered the Crown's starting point much too high.  This was very frightening violence for the victim who was a mild, slightly built man.  The Court felt that Hogg had been egged on by Donachie who appeared to have a grudge against the victim and the offence was clearly fuelled by alcohol and everyone in the flat had consumed substantial amount of alcohol.  Whilst it was Donachie who had used the bottle, this was a joint enterprise in which they acted together and, therefore, both were responsible for the consequences.  It was a very nasty attack aggravated by the fact that Hogg was on licence for a similar offence.  In the Court's view the correct starting point was one of 3 years' imprisonment. 

There was some mitigation in terms of the good references but this was outweighed by the seriousness of the offence and the aggravating features. 

Starting point 3 years' imprisonment. 

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

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        We have read the pre-sentence report and we have read your references and the picture that those documents paint of you is of a pleasant young man, well able to work hard and well, and well thought of by those who know you sober, and we suspect it is that last word that is the key to this because sober you are capable of being a good citizen and behaving well.  Sadly you also have a problem with drink and that has led you into trouble again and the factors, quite apart from the seriousness of the offence which make it impossible for us to deal with this case in any way other than by a custodial sentence, are the gravely aggravating factor that you committed this offence very shortly after coming out on licence for a very similar offence indeed. 

2.        That said, we regard the starting point proposed by the Attorney General as much too high.  I will indicate in due course the figure that we have come to but that, in our judgment even taking account of the aggravating features of your committing the offence whilst on licence for a similar offence, sets the starting point as too high.  This was very frightening violence for the victim who was, as I indicated to your advocate in the course of argument, a mild mannered, slightly-built man who, quite plainly, was not on the lookout for trouble.  We think it likely that you were egged on by Donachie, who's real grudge, in so far as there was any grudge, it was rather than yours.  Quite clearly everybody was fuelled by drink because the evidence was clear in the trial that everybody in that house had been drinking substantially.  It was also clear that it was Donachie who used the bottle on the victim, though this was a joint enterprise, that is to say you were both acting together and you are both responsible for the consequences.  Happily the injuries were not very serious though this was a very nasty attack on the victim.  We have indicated the seriously aggravating factor that this was committed whilst you were on licence firstly, and secondly that that was on licence for a very similar sort of offence of violence in a broadly similar context.  In our judgment the appropriate starting point, having taken account of the aggravating features of the offence, is one of 3 years' imprisonment. 

3.        Although there are mitigating circumstances in the sense that you have good references, those are outweighed by the other matters in the case and in our judgment the appropriate sentence is the starting point suggested absent any plea of guilty which is one of 3 years' imprisonment and that is the sentence that we impose today. 

Authorities

AG-v-Hogg [2009] JRC 031.

Harrison-v-AG [2004] JLR 111.