Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2012]JRC128

Royal Court

(Samedi)

29 June 2012

The Attorney General

-v-

Romica Gabriel Sofaru

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

Age:  23.

Plea: Guilty.

Details of Offence:

In the early hours of Sunday 28^th August, 2011, the defendant and his friend became involved in an altercation with another group of men, including the victim, in Bath Street.  The group of men set upon the defendant and his friend, both men were assaulted and the defendant was head-butted.  The two men ran off into Vauxhall Street pursued by their attackers.  A further altercation ensued and the victim, who was drunk, ended up on the ground.  The defendant then kicked him in the face.  The victim started to get up, as he was doing so the defendant ran at him and kicked him again in the face with a powerful kick causing his head to be thrown back and he appeared to lose consciousness.  During this assault the victim sustained a broken nose and possible fractured rib. 

Details of Mitigation:

Guilty plea; cooperation with police; previous good character and remorse.

Aggravating factors:- The kick causing injury was deliberate, forceful and aimed directly at the head of the victim who was defenceless on the ground. 

Previous Convictions:

None.

Conclusions:

The Crown had regard to the circumstances of the offending, the mitigating and aggravating factors and moved:-

Compensation Order for the victim sought.

Sentence and Observations of Court:

The Court's policy is clear; kicks to the face to a person on the ground will almost invariably result in imprisonment.  In this case there had been enormous provocation, the defendant had been attacked by the group, head-butted and chased, he was outnumbered and in fear.  However, he had kicked the victim in the face whilst he was on the ground, extremely drunk and helpless.  The defendant could not claim that his actions were in self-defence.  The Court had regard to the defendant's guilty plea, cooperation with the police; previous good character and he had been assessed as being at low risk of reoffending, and sentenced:-

No Compensation Order made.

Mrs S. J. O'Donnell, Crown Advocate.

Advocate R. O. B. Gardner for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Court's policy in cases such as this is clear.  If you kick a man to the face when he is lying on the ground, you will almost certainly go to prison.  The question for us is whether this is one of those exceptional cases where we can impose a non-custodial sentence.   What is certainly true is that there was an enormous amount of provocation.  After a verbal argument you and your friend were attacked by a group which included the victim.  You were head butted by one of the group.  You were then chased by the group and we accept that you found yourself outnumbered.  We also accept that you did not start the violence in the second part of the incident.  But at some stage the victim, who was extremely drunk, ended up on the ground and at that stage you kicked him, and that cannot have been in self- defence.  He suffered a broken nose and a possible cracked rib as well as bruising to his face.  But the Crown has accepted in this case that what was involved here was a loss of control mixed with fear on your part.

2.        As well as the mitigation from the facts of the offence, you have strong personal mitigation.  You pleaded guilty very promptly and were cooperative with the police.  You have no previous convictions in Romania, here, or anywhere else.  You have had an exemplary work record since you came to Jersey and we have read the references.  You are assessed at low risk of reoffending; the probation report says that you are genuinely remorseful and that what happened this night was wholly out of character.  This is one of those cases where others are fortunate not also to be before the Court. 

3.        On the very unusual facts of this case, and given the very powerful mitigation, both personal and in relation to the facts of the case in relation to the extreme provocation, we agree that we do not have to send you to prison.

4.        The sentence of the Court is that you undertake community service for 180 hours, which is the equivalent of the 12 month imprisonment sentence suggested by the Crown.  And you must understand that if you do not undertake this work, or if you reoffend, then you will come back here and you will almost certainly at that stage have to go to prison.  But if you undertake the work conscientiously when told to do so and you do not reoffend, that will be your only punishment.  That is the sentence of the Court. 

5.        There is an application for compensation but we think that it is not appropriate to order it in this case; if the victim wishes to pursue the matter he can do so civilly.    

Authorities

Whelan - Aspects of Sentencing in the Superior Courts of Jersey (3^rd edition) (extract).

AG-v-Mendonca and Moreira [2006] JRC 066.

AG-v-Le Mains (02.10.1996).