Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal - assault - affray - motoring.

[2012]JRC102B

Royal Court

(Samedi)

18 May 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Liston.

The Attorney General

-v-

Luke John Edmundson

Laurie Ian Murphy

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

Luke John Edmundson

First Indictment

2 counts of:

Grave and criminal assault (Counts 1 and 2).

Second Indictment

1 count of:

Affray (Count 1).

Third Indictment

1 count of:

Assault (Count 1).

Fourth Indictment

1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 1).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948 (Count 2).

Age:  19.

Plea: Guilty.

Details of Offence:

First Indictment

Two brothers were walking home in the early hours of the morning.  They were approached by three men including Edmundson.  Edmundson asked for a cigarette from one of the brothers who said he did not smoke.  As the two brothers walk away Edmundson punched one of the brothers from behind to the left side of the face.  He suffered a fractured left cheek bone, broken dentures and bleeding from the nose.  As the other brother ran away he slipped and fell and was kicked approximately six times by Edmundson to the face and body.  Sustained various abrasions.  The Victim's Personal Statements are before the Court at sentencing.  Edmundson made no admissions at interview: answered either "no comment" or claimed that he could not remember anything because he was so drunk.  Not guilty pleas entered in the Magistrate's Court but guilty pleas entered on indictment. 

Second Indictment

A large number of people were in the area of the Waterfront and adjacent beach on the evening of the 22^nd April, 2011, into the early hours of the 23^rd April, 2011.  Edmundson and Murphy were identified as being present.  Both were under the influence of alcohol.  Both were waving bottles around and threatening people generally.  Both defendants pleaded guilty to affray (Count 1). 

The victim was present with a group of friends.  He became involved in an incident with the defendants when one of them removed the victim's sunglasses and would not return them.  The victim was telling Edmundson to calm down who was shouting threats and waving a bottle around.  The victim then saw Murphy approaching from his left hand side swinging a broken bottle which he had seen smashed against the wall.  Murphy jumped and swung the bottle towards the victim.  He blocked the blow with his left forearm resulting in some cuts to his arms.  The largest cut was 4cm which required five stitches and which in the Doctor's opinion would leave a permanent scar.  The police arrived and Murphy was identified and arrested.  He admitted to being "pretty drunk" but denied any involvement in any violence. 

He entered not guilty pleas and trial dates were fixed.  A guilty plea on a factual basis acceptable to the Crown was entered prior to trial. 

Third Indictment

At approximately an hour after the affray incident referred to above Edmundson committed a separate assault upon a male.  The assault was unprovoked.  The Crown accepted a guilty plea to this offence based upon the three punches from Edmundson to the victim.  The victim suffered bruises and abrasions to the face and the Police Surgeon was concerned whether he had suffered a fractured jaw but no follow up medical evidence was available due to lack of cooperation from the victim.  When interviewed Edmundson claimed either not to remember or not to have been involved in any violence.  He pleaded guilty to the alternative offence of common assault on indictment. 

Fourth Indictment

Edmundson was stopped when driving a vehicle and it was ascertained he had not passed a driving test and did not have a provisional driving licence.  No insurance, guilty pleas entered on Indictment.

The offences of violence were serious offences of unprovoked violence on innocent people going about their business committed by the defendants when they were under the influence of alcohol.  The Crown contended that there was no alternative to a custodial sentence for both defendants, despite Edmundons's age and Murphy to be treated from a "starting point" basis falling under the provisions of the Young Offenders Law as aged 20 when committed he the offence/indicted.  Aged 21 at date of sentencing. 

Details of Mitigation:

The Crown

Youth: 18 at time of offending.  Guilty pleas albeit some only entered on Indictment.  Not cooperative with the police.  Not a first offender albeit previously only dealt with by way of fines or Binding-Over Orders.  Assessed at being of medium risk of reoffending.  The Crown made allowance in conclusions for a period of delay of some 5 months when matter was under review by legal advisers in relation to Second Indictment. 

The Defence

Contended all acts of violence were spontaneous despite serious nature of offences.  Alternative sentence of Probation/Community Service Order available.  Credit for guilty pleas, some entered at early stage.

Youth and lack of serious record.  Had been on bail throughout and had kept out of trouble and was in full time employment.  Delay was a mitigating factor.  Genuinely expressed remorse and regret and had made efforts to turn life around since his spree of offending.  References to support. 

Previous Convictions:

Six convictions for a total of fourteen offences including motoring, indecent assault, breaking and entry, assaults and drunk and disorderly. 

Conclusions:

First Indictment

Count 1:	18 months' youth detention.
Count 2:	18 months' youth detention, concurrent.

Second Indictment

Count 1:

12 months' youth detention, consecutive to the First Indictment.

Third Indictment

Count 1:

6 months' youth detention, concurrent.

Fourth Indictment

Count 1:	3 months' youth detention, consecutive to the First Indictment.
Count 2:	3 months' youth detention, concurrent to Count 1 on this Indictment.

Total: 2 years and 9 months' youth detention. 

Sentence and Observations of Court:

These two defendants are to be sentenced for serious offences of grave and criminal assault and affray, common assault and Edmundson for motoring offences.  These were serious offences.  One of the victims sustained a broken jaw, whilst the other one was kicked while on the ground.  The offences were aggravated by the fact that Edmundson was drunk and the offences were committed in public and were unprovoked offences.  Report suggests that Edmundson lacked witness empathy and the Court encouraged him to read the victim personal statements in the hope that he would have some insight or understanding of the effect such offences had upon the victims.  The Court required by the 1994 law to consider whether there was any other way of dealing with the defendants other than the imposition of an immediate custodial sentence.  The Court was encouraged by steps taken by Edmundson over the last 10 months.  Court concluded that there was an alternative sentence available to it.  Sentence would be a challenge as it would require him to give up a substantial period of his time to complete.  The Court was going to impose Orders of Community Service and a Probation Order.  The Court indicated the sentence that it had been minded to impose but confirmed that having regard to totality and the proposed sentence of 260 hours community service was too much. Therefore it felt able to slightly reduce its sentence as follows:

First Indictment

Count 1:	180 hours' Community Service Order, equivalent to 12 months' youth detention together with a 12 month Probation Order.
Count 2:	180 hours' Community Service Order, equivalent to 12 months' youth detention, concurrent to Count 1.

Second Indictment

Count 1:

120 hours' Community Service Order, equivalent to 6 months' youth detention, consecutive to the First Indictment.

Third Indictment

Count 1:

120 hours' Community Service Order, equivalent to 6 months' youth detention, concurrent to the Second Indictment.

Fourth Indictment

Count 1:	90 hours' Community Service Order, equivalent to 3 months' youth detention, concurrent.
Count 2:	90 hours' Community Service Order, equivalent to 3 months' youth detention, concurrent.

Total: 300 hours' Community Service Order, equivalent to 23 months' youth detention, to be completed over a period of 2 years, together with a 12 month Probation Order.

Laurie Ian Murphy

Second Indictment

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

Age:  21.

Plea: Guilty.

Details of Offence:

Second Indictment: See Edmundson above.

Details of Mitigation:

The Crown

Not cooperative with the police.  Initially not guilty plea entered.  Guilty pleas only entered as trial dates approached.  Aged 20 at the time of offending/Indictment.  Exceedingly poor record with numerous for violence.  Very troubled upbringing but no excuse or justification for continuing anti-social behaviour.  The Crown had made allowance for the issue of delay in relation to the offences on the Second indictment.  Custodial sentence warranted given seriousness of offence involving use of weapon. 

The Defence

Submissions on delay adopted by counsel.  Guilty plea.  Letter provided to Court expressing remorse and regret.  Very difficult upbringing and a very poor record.  Not a lost cause and was using time constructively whilst on remand and with the support of probation he could change.  Submitted non-custodial options would be the most appropriate sentence both in short and long term for this defendant. 

Previous Convictions:

Thirty convictions for 108 offences including breaking and entry, larceny, 8 for assault/grave and criminal assault, criminal hoax, motoring, escaping from lawful custody, malicious damage, breach of the peace, possession of offensive weapon and breach of terms of youth licence. 

Conclusions:

Second Indictment

Count 1:	12 months' imprisonment.
Count 2:	2½ years' imprisonment, concurrent.

Total: 2½ years imprisonment. 

Sentence and Observations of Court:

See Edmundson above.

The Court was treating Murphy as falling within the provisions of the 1994 Law as he was 20 at the time of offending.  His position was different because he had a history of not responding to non-custodial sentences and he had used a broken bottle in the grave and criminal assault.  the offence was so serious that only a custodial sentence would be appropriate.  He had youth as a mitigating factor.  The Court knew that he had faced challenges in his upbringing and he had a choice as to whether to use the Court's sentence as something positive or negative.  If he turned away from alcohol and takes advantage of the courses available to him then he could turn his life around.  If, however, he is resentful of the sentence, then it is likely that he would be back before the Court.  The Court encouraged him to take the first option and to treat the sentence as a constructive one. 

Second Indictment

Count 1:	6 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total: 2 years' imprisonment. 

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

Advocate W. R. Bell for Edmundson.

Advocate S. M. Le Cocq for Murphy.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Edmundson, you are here to be sentenced for a series of grave and criminal assaults and for affray, common assault and some driving offences.  These were serious offences.  The injury caused to one of the victims was a broken jaw; the injuries caused to the other victim were less severe but involved kicks, including kicks when he was on the ground.  The offences were aggravated by your being drunk at the time; they took place in public and they were unprovoked offences.  It is said in one of the background papers that you may not have victim empathy but the Court really would urge you to read the victim personal statements which have been made, if you have not read them already, and perhaps you will have some understanding of the effect of assaults of this kind on victims. 

2.        Nonetheless we are charged by the Criminal Justice (Young offenders)(Jersey) Law 1994 to consider whether or not there is any other way of dealing with you because in normal circumstances it would be a custodial sentence for offences of this kind.  As it happens, the Court considers that there is another way of dealing with you and we are therefore not going to send you to prison.  The Court has been encouraged by what you have achieved in the last ten months.  You have shown that you can make something of yourself and although the sentences which are going to be imposed on you are going to cause you to give up considerable amounts of time, and therefore will be a challenge, the Court thinks that if you put yourself to it you can achieve what is necessary and what is required. 

3.        The sentences that we would have imposed would be on Count 1 on the First Indictment; 240 hours' community service and 12 months probation, the community service to be performed over the next 2 years, the alternative would be 18 months' youth detention.  On the Second Indictment, the count of affray; 120 hours' community service to be served consecutively with an alternative of 6 months' youth detention, on Count 1 on the Third Indictment; 120 hours' community service and the alternative again is 6 months' youth detention, and on the Fourth Indictment, the two driving offences; 90 hours' community service, alternatively 3 months' youth detention, concurrently in both cases.  But we then looked at the overall totality of that recognising that that was 360 hours and we thought that was too much, and we are therefore going to reduce the community service to a total of 300 hours and we are achieving that by reducing the sentence on the first two assaults on the First Indictment to 180 hours community service on those two with an alternative of 12 months' youth detention, to be served concurrently.  So on that First Indictment; 180 hours, and 180 hours' community service on the Second Indictment, 120 hours consecutively on the Third Indictment, 120 hours concurrently with the Second and consecutive to the First and 90 hours concurrently on the Fourth Indictment, but the total is 300 hours community service. And you are to perform that over the next 2 years, with a 12 month Probation Order. 

4.        I should warn you that if there is any breach of the terms of the Probation Order or if you do not perform your community service, you will be brought back before this Court and you are liable to be sentenced, in particular, liable to get youth custody orders that have been stipulated as the alternatives and you should be aware of that.  You are being given the opportunity, because of your youth, to put your life in order and the Court urges you to take it. 

5.        Mr Murphy, we also treat you under the 1994 Law, although you are now 21 but you were 20 at the time of the offences being committed.  Your position is slightly different because you have a history of not responding to non-custodial penalties from your record and furthermore, the use of a broken bottle in the way that you did on this occasion is an offence which is, in the Court's view, so serious that only a custodial sentence would be appropriate.  So the Court is going to impose a custodial sentence in your case.  The violent use of a weapon like a broken bottle, it is like a knife, or anything like that, in a public place causing injuries as you did is always treated by the Court very seriously.  Your youth though counts as an extra mitigating factor apart from all those which your counsel has mentioned in her very full and complete speech on your behalf and we have taken all those matters into account. 

6.        The sentence we are going to impose is 2 years' imprisonment on the count of grave and criminal assault, the use of the bottle, and there will be on the affray charge, 6 months' imprisonment which is to be served concurrently, and so the total is 2 years' imprisonment. 

7.        Now I want to say something to you about that.  The Court knows that you have had numbers of challenges and that bad things have happened to you in your life.  We do understand that.  But this is an opportunity for you to take something positively from this sentence.  Your counsel says you can turn your life around.  The Court believes you can turn it around, and one of the reasons that you are being given this custodial sentence is to give you time, away from alcohol, away from drugs, and with all the benefits of the courses which you can take in prison, and we are very pleased to see you are taking those courses, to get some advantage, some mileage from those courses.  And so you have got two choices.  You can either be resentful about the imprisonment sentence that is being imposed, or you can treat it positively and constructively, and see that actually you can use it to your advantage and we urge you to take that latter course, to use it to your advantage, because that is part of why we consider it is rightly imposed. 

Authorities

Criminal Justice (Young offenders)(Jersey) Law 1994.

Archbold: Criminal Pleading, Evidence and Practice 2011 5-77(a) - (b).

Harrison-v-AG [2004] JLR 111.

AG-v-Hébert and Rainbow [2001] JLR N 14 (unreported 2001/59).

AG-v-Cameron [2008] JRC 182.

AG-v-Bouhaire [2000] JLR N 63c.