Jersey Unreported Judgments

Inferior Number Sentencing - assault - grave and criminal assault - harassment.

[2012]JRC145A

Royal Court

(Samedi)

30 July 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Crill.

The Attorney General

-v-

David Nimmo

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

2 counts of:	Assault (Counts 1 and 2).
1 count of:	Grave and criminal assault (Count 4).

Age:  54.

Plea: Guilty.

Details of Offence:

On the 10^th September, 2011, an ambulance crew attended the home address of the defendant after a call from his mother, Mrs Nimmo, saying that he had complained of having no feeling in his legs, and she feared he might be having a stroke. 

On arrival the ambulance crew went to his bedroom and recorded that the defendant was aggressive towards his mother, shouting "I'll fucking kill you" at her, and had been drinking.  The defendant picked up the piece of wood close to his bed and lifting it above his head, shouting, "I'm going to fucking kill you" at one of the ambulance crew (Count 1). 

He continued to shout and they decided to leave the house because of his aggressive behaviour.  He left the bedroom saying "I'm going to get a gun".  He returned empty handed but squared up to a member of the ambulance crew saying "Get out of my house, I'll kill you." (Count 2).  The ambulance crew slowly made their way to the door, encouraging Mrs Nimmo to leave with them, but she would not go.  Both ambulance crew members feared for their safety. 

On Wednesday 28^th September, at 08:30 Mrs Nimmo was in her bedroom when the defendant entered the room demanding to know to whom she had been talking on the telephone.  Mrs Nimmo said it was her friend Maggie, to which the defendant replied "Maggie, Maggie, fuckin' Maggie."  He then left the room taking Mrs Nimmo's phone.  Mrs Nimmo noted that he had already consumed alcohol and was "half cut". 

Mrs Nimmo then went to the kitchen to make a cup of tea and then went to the living room where she sat on the couch.  The defendant asked that Mrs Nimmo fetch him a can of beer in return for her telephone.  Mrs Nimmo did as instructed and then sat back down. The defendant then got up, crossed over to where Mrs Nimmo was sitting and punched her to the left side of her face with his right fist. 

Shortly after, the defendant smashed Mrs Nimmo's telephone with a claw hammer while shouting "There's your fuckin' phone".  The defendant then deliberately stamped on her bare feet with his sbare feet several times (Count 4).  Mrs Nimmo, being unable to contact the police, went to her neighbours who then telephoned the police on her behalf. 

Mrs Nimmo was examined by the Force Medical Examiner who noted numerous bruises and expressed the opinion that the bruising to Mrs Nimmo's feet was consistent with being hit with hard object, the facial bruising was consistent with having been punched. 

The defendant was arrested later that day and found to be extremely intoxicated.  In interview he denied assaulting his mother and said she had assaulted him. 

Mr Nimmo was also in breach of a Magistrate's Court Order issued on 24^th August, 2011, for committing an assault on his mother and was placed on probation for 12 months, resulting in his release from HPM La Moye, where he had been detained in custody for approximately six weeks. 

Aggravating factors:-

Two of the assaults were against ambulance staff trying to help him (Counts 1 and 2).

All the offences took place whilst he was intoxicated.

He was on probation from a previous assault against his mother (Count 4).

He has a history of convictions for assaulting his mother (Count 4)

His mother was 72, frail and had a number of health problems, including diabetes, hypertension and osteoporosis (Count 4).

Details of Mitigation:

Mr Nimmo is a chronic alcoholic; the state of his mental health - he was reported by prison and probation officers as having bizarre behaviour, hearing voices and severe mood changes whilst he was in prison.  Guilty pleas; he has sent letters of remorse to the Court. 

Previous Convictions:

The defendant has sixteen previous convictions including four assaults on his mother, two of them grave and criminal, between 1995 and 2011, and a further grave and criminal assault on a girlfriend.  All of these were dealt with in the lower court and there are no written judgments.  He also has convictions for conduct likely to cause a breach of the peace, resisting arrest, drunk and disorderly, drink and incapable, refusing to leave licensed premises and obstruction.  He has breached probation orders and a binding over order.  Aside from the obstruction charge there was a long gap in his offending between 1997 and 2011, although he has four Parish Hall cautions during that period for drink and public order matters. 

Conclusions:

Count 1:	3 months' imprisonment.
Count 2:	3 months' imprisonment, concurrent.
Count 4:	2 years' imprisonment, consecutive.

Breach of Probation Order: 3 months' imprisonment, consecutive to Count 4.

Total: 2 years and 6 months' imprisonment. 

Exclusion Order sought for a period of 12 months from all licensed premises save for shops selling food and the Multiplex Cinema, Jersey Arts Centre, Jersey Airport, Elizabeth Ferry Terminal and the Opera House. 

Sentence and Observations of Court:

The Court feels Mr Nimmo shows a lack of understanding for the seriousness of his offences.  He has shown no compliance with court orders shown by his breach of his 12 month Probation Order.  He is at high risk of reoffending, with a serious risk of harm to his mother.  The Court agrees with the submission that ambulance staff should be protected and so in that respect the sentence for Counts 1 and 2 were increased.  Domestic violence is a crime that the Court will treat severely.

The Court feels that a sentence of 2 years for Count 4 is too high due to the circumstances of the case.  The guilty plea and written letters of remorse were given credit and taken into account. 

Count 1:	6 months' imprisonment.
Count 2:	6 months' imprisonment, concurrent.
Count 4:	1 year and 9 months' imprisonment, consecutive.

Breach of Probation Order: 3 months' imprisonment, concurrent.

Total: 2 years and 3 months' imprisonment. 

Exclusion Order made for a period of 12 months from all licensed premises save for shops selling food and the Multiplex Cinema, Jersey Arts Centre, Jersey Airport, Elizabeth Ferry Terminal and the Opera House.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for two counts of common assault upon members of the ambulance crew who attended upon him at his mother's request, one count of grave and criminal assault on his mother, and for breaching a 12 month Probation Order resulting from an earlier common assault on his mother. 

2.        The social enquiry report in our view encapsulates the position here.  The defendant is a 55 year old man with a serious and chronic alcohol problem.  He has not been fit to work for the last ten years partly due to his drinking and partly due to genuine chronic back pain.  Since settling in Jersey thirty two years ago he has rarely lived independently of his mother and they appear to have an inter-dependant dysfunctional relationship.  He appears to have few contacts outside his home.  Despite twenty years of alcohol-related offending, much of it violent, the defendant has never actively sought to address his alcohol misuse.  During his last period in custody he acknowledged the problem but on his return to the community last August he started drinking heavily again and denied the fact until his arrest for drunkenly assaulting his mother a month later.  Over the years the repeated instances of violent offending while either on bail or under probation supervision indicates either a lack of understanding of the seriousness of his conduct or a disregard for it.  It also indicates an unwillingness to comply with community-based court sanctions. 

3.        Accordingly, in all these circumstances, the Probation Department are not able in the interests of his mother's safety, a person they describe as physically and emotionally fragile, to recommend a community-based sanction for the defendant who they assess at a high risk of re offending and as presenting a serious risk of harm to his mother and indeed to other people attending the home; views endorsed by Doctor Emsley. 

4.        The Crown submit that ambulance staff should expect the same level of protection while carrying out their duties as do the police and prison officers and we have been referred to the case of AG-v-Letchford 2000/173A in that respect.  We agree with that submission.  In this case they had been asked to attend by the defendant's mother who was concerned that he had suffered a stroke.  They were met by a barrage of abuse which escalated into threats to kill with the defendant picking up a piece of wood and threatening to get a gun.  For that reason we are going to increase the sentences sought by the Crown for these offences, which we agree should be served consecutively.  We wish to send out a clear message that the Court will act to protect ambulance staff called out to assist members of the public. 

5.        We also endorse the comments of the Court in the cases of AG-v-Barwise [2009] JRC 182, AG-v-Da Silva [2011] JRC 113 and AG-v-Horn [2010] JRC 104 that domestic violence is a crime which the Court will treat severely and that people who commit these crimes can expect the Court to focus on the victim and not on the hardships and difficulties of a defendant.  In that respect we have taken into account the impact statement of the defendant's mother. However we conclude that the sentence of 2 years sought by the Crown on Count 4 is too high bearing in mind the particular circumstances of this case. 

6.        In terms of mitigation the defendant has pleaded guilty and must receive credit for that and although at odds with what he informed the Probation Department, he has written letters of remorse both to the Court and to his mother which we have taken into account and we have also considered all of the other mitigation ably put forward by Mr Haines on the defendant's behalf. 

7.        The defendant will therefore be sentenced as follows:  taking first the breach of the 12 month Probation Order you are sentenced to 3 months' imprisonment.  Taking next Count 1, the common assault, you are sentenced to 6 months' imprisonment which will be concurrent to the breach of the Probation Order.  In respect of Count 2, the common assault, you will be sentenced to 6 months' imprisonment, which will be concurrent to Count 1 and to the breach of the 12 month Probation Order.  In respect of Count 4 you will be sentenced to 21 months' imprisonment, which will be consecutive to the other sentences so that you will serve a total of 2 years and 3 months' imprisonment. 

8.        Turning to the Exclusion Order, we agree that that should be made so the defendant will be excluded from all licensed premises for a period of 12 months following his release from custody, with the exception of shops selling food, the Multiplex Cinema, Jersey Arts Centre, Jersey Airport, Elizabeth Ferry Terminal and the Opera House. 

Authorities

Licensed Premises (Exclusion of Certain Persons()Jersey) Law 1998.

Harrison-v-AG [2004] JCA 046.

AG-v-Letchford 2000/173A.

AG-v-Barwise [2009] JRC 182.

AG-v-Da Silva [2011] JRC 113.

AG-v-Horn [2010] JRC 104.