Jersey Unreported Judgments

Superior Number Sentencing - malicious damage - affray - grave and criminal assault.

[2012]JRC231

Royal Court

(Samedi)

13 December 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan, Fisher, Kerley, Olsen and Blampied.

The Attorney General

-v-

Robert Kevin Le Masurier Passman

Paul John Le Masurier Passman

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 7^th December, 2012, following guilty pleas to the following charges:

Robert Kevin Le Masurier Passman

First Indictment

1 count of:

Malicious damage (Count 1).

Second Indictment

1 count of:

Affray (Count 2).

Third Indictment

1 count of:

Grave and criminal assault (Count 1).

Age:  23.

Plea: Guilty.

Details of Offence:

First Indictment

Robert Passman smashed a hand basin at the public toilets at Snow Hill.  Cost of damage: £235.  Denied the offence in interview.  Only entered a guilty plea as trial dates approached.  Committed offence when drunk. 

Second Indictment

Incident occurred involving both the Passmans and another group of males/females at the Les Platons car park.  Robert Passman was intoxicated.  He was the aggressor and his language and behaviour was such as to try and provoke members of the other group into a fight.  He was involved in a general scuffle/throwing of punches.  Brother Paul came to his aid.  After a lull in the incident Paul Passman went back to the vehicle and returned with a knife, the size/dimensions of which were unclear. Violence re-started and Paul Passman stabbed two male members of the other group and was seen to chase after one of the males, grab him and stab him a number of times.  Paul Passman then threw the knife away.  The incident continued with Robert Passman encouraging his girlfriend who was driving to chase after the members of the group who were in two other cars.  She was subsequently charged and pleaded guilty to the offence of dangerous driving.  Stab wounds were fortunately relatively minor partly due to that fact that the victims were wearing clothing.  Stab wounds included wounds to the arm and two incisions on the buttocks.  This victim also suffered a laceration to the mouth.  The second victim also suffered a stab wound to the abdomen.  Another person suffered a bleeding nose in consequence of the actions of the defendants.  In interview, Robert Passman claimed that he was acting in self-defence.  He had not seen anybody with a knife.  Paul Passman initially denied using a knife, but eventually made full and frank admissions in relation to the use of the knife.  He was initially involved so as to help his brother.  He was remorseful. 

Third Indictment

Robert Passman had been drinking with others in the afternoon.  It was suggested that the other male in the group had stolen his iphone.  In sight of witnesses he told the other male to strip down to his underwear.  His iphone was in the other male's shoe.  The male was then knocked to the ground and then repeatedly kicked and stamped on by Robert Passman.  This was a savage assault.  A witness described ten to twelve kicks and five to six stamps alternating between the face and stomach of the victim who was rendered defenceless.  The kicks and stamps were delivered with considerable force.  The victim suffered a fracture to the lower jaw and patterned bruising across the right side of the face consistent with the imprint of the shoe, multiple bruising and abrasions and lacerations.  Witnesses described him lying on the ground with his face covered in blood and blood on the floor.  Passman and the two females walked away.  Following this offence, Passman breached the curfew condition of his bail.  When interviewed, he admitted that he had been present but claimed that a third unnamed male was present, and it was this male who had assaulted the victim.  He refused to name this male.  He attempted to mislead the police in terms of the trainers worn by him at the time of the assault.  Forensic analysis of Passman's trainers revealed the DNA/blood of the victim on the trainers and on the soles of the trainers. 

The Crown had regard to the non-exhaustive factors identified in Harrison-v-AG when considering conclusions for the three counts of grave and criminal assault covered by the Indictments. 

The Crown also concluded that there should be a deterrent element to the sentence of Robert Passman due to his repeat offending. 

Details of Mitigation:

The Crown

Guilty pleas to the affray and criminal assault.  Not guilty pleas to the malicious damage; guilty plea entered close to trial dates.  Did not have the benefit of youth or of good character.  Was not cooperative in interview with the police and had falsely claimed that a third man was the assailant for the grave and criminal assault.  Lack of remorse or victim empathy.  High risk of reoffending.  Troubled upbringing.  Did not provide any mitigation of substance. 

The Defence

Extremely difficult and disturbed childhood.  He was the product of that upbringing.  Unable to deal with stressful situations.  Serious issue with alcohol and substance abuse.  Recognise need to address such issues; not a lost cause; had a good work ethic when not in prison.

Previous Convictions:

Six convictions for 28 offences - two grave and criminal assaults, a number of common assaults, malicious damage, resisting police, motoring and public order. 

Conclusions:

First Indictment

Count 1:

3 months' imprisonment.

Second Indictment

Count 2:

12 months' imprisonment, consecutive.

Third Indictment

Count 1:

3 years and 6 months' imprisonment, consecutive.

Total: 4 years and 9 months' imprisonment. 

No separate penalties for breach offences. 

Sentence and Observations of Court:

Robert Passman was to be sentenced for three different charges: malicious damage, affray and grave and criminal assault.  This placed him in breach of Probation and Community Service Orders passed by the Royal Court on 19^th August, 2011.  Consideration of the offences shows that the grave and criminal assault was the most serious charge.  This was a savage attack and unprovoked.  The blows were aimed at the victim where the victim was not protecting himself.  The Court noted the effect on the victim from the Victim Personal Statement.  The photographs showed the tread marks left on the face, which was evidence of the severe force of violence that had been involved.  Apart from his guilty plea and some personal mitigation, there was no mitigation for the Court to take into account.  He was old enough to know better. 

The affray was also a serious offence.  He was the instigator of all the trouble at the car park.  The throwing of "bangers" by the other group acted as some provocation.  This did not justify his behaviour.  The incident had settled down and then he had once again ignited it by his behaviour and attitude.  His conduct would have put reasonable people in fear.  The Court noted his problem with alcohol and this was an aggravating feature of all the offending.  However, the Court did not view him as a lost cause.  He had a clear problem with alcohol and he needed to tackle this.  He needs to stop offending by addressing his alcohol problem.  His letter before the Court indicated a willingness for him to do this.  Recognised the problems with upbringing but he had to take responsibility for his actions.  It was his fault and no one else's.  The Court considered the Crown's conclusions were right.  The Court had regard to the factors in Harrison-v-AG.  Separate offences and therefore consecutive sentences appropriate.  The Crown's approach was correct in this case.  The Court considered the Crown's conclusions of 4 years and 9 months' the right sentence.  It was not excessive. 

Conclusions granted.

Paul John Le Masurier Passman

Second Indictment

1 count of:	Affray (Count 2).
2 counts of:	Grave and criminal assault (Counts 3 and 4).

Age:  20.

Plea: Guilty.

Details of Offence:

See Robert Passman above - Second Indictment

Details of Mitigation:

The Crown

Not the initial aggressor in the affray.  Guilty pleas.  Eventual admissions in interview.  Youth - 19 at the time.  Limited relevant previous record.  Never received custody before.  Use of knife.  Viewed as serious offence. A non-custodial sentence could not be justified.  Same troubled upbringing as his brother.  Remorse.

The Defence

Paul Passman was not the original aggressor at the affray.  Minor injuries sustained; accepts that this was an alcohol fuelled incident; has abstained since.  Guilty pleas and cooperation in interview; troubled upbringing emphasised; genuine remorse; viable alternative to custody available.  Complied with bail conditions for some 8½ months.  in a committed relationship. 

Previous Convictions:

Three convictions for ten offences, including one common assault and a number of motoring offences.

Conclusions:

Second Indictment

Count 2:	6 months' youth detention.
Count 3:	2 years and 6 months' youth detention, concurrent.
Count 4:	2 years and 6 months' youth detention, concurrent.

Total: 2 years and 6 months' youth detention. 

Sentence and Observations of Court:

Paul Passman was to be sentenced on the Second Indictment for one affray and two grave and criminal assaults.  Much of what had been regarding his brother also applied to him.  Accepted that he was not the instigator, but was misguided in assisting his brother.  To his credit during the affray he did not give the knife to his brother when the brother demanded it.  His brother clearly was not in control.  Paul Passman was potentially not as drunk as his brother.  However, the use of the knife gave the Court great anxiety.  The mere fact of carrying a knife gave rise to the chance of the knife being used.  People who carry knives usually go to prison, and if he had been older, then there would have been no question.  The Court had to consider whether there was an alternative to custody, given his age.  The Court had concluded that there had been occasions where in similar circumstances custody had been avoided for youths. 

In this case the Court was not agreed.  The minority of Jurats would have imposed youth detention.  However, the majority of Jurats felt that there was another way of dealing with him and he had been given the benefit of his better record compared to his brother.  The Court had some misgivings but was going to impose a non-custodial sentence.  The Court had taken into account his guilty plea, his letter of remorse and that fact that he had stayed out of trouble.  He should consider himself very fortunate.  Given clear warning as to the consequences of re-offending or not complying with the Court's Orders.  He had been given an opportunity. 

Second Indictment

Count 2:	120 hours' Community Service Order, equivalent to 6 months' youth detention, or 6 months' youth detention in default.
Count 3:	312 hours' Community Service Order, equivalent to 2 years' youth detention, or 2 years' youth detention in default, concurrent, and a 2 year Probation Order.
Count 4:	312 hours' Community Service Order, equivalent to 2 years' youth detention, or 2 years' youth detention in default, concurrent, and a 2 year Probation Order.

Total: 312 hours' Community Service Order, or 2 years' youth detention in default, and a 2 year Probation Order.

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

Advocate D. V. Blackmore for Robert Passman.

Advocate D. A. Corbel for Paul Passman.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I deal first with Robert Passman.  You are here on three different Indictments; malicious damage to a hand basin in the public toilets at Snow Hill in March, the basin was valued at £235, an affray about three weeks later at Les Platons car park and the grave and criminal assault some time later in July at Havre des Pas on a young man known to you.  As a result of those offences you are in breach of the terms of Community Service Order and Probation Order imposed by the Royal Court on the 19^th August. 

2.        The circumstances of the offences which have been put to us show that the grave and criminal assault is indeed the most serious of the charges which you face.  It was a savage attack, as the Crown has said.  It was unprovoked; it was a deliberate sustained assault; the blows were aimed wherever the victim was not protecting himself, first at the victim's stomach, and then, when he protected his stomach, at his face.  It is clear that you lost control and the photographs that the Court has seen, particularly showing the stamp marks to the face, which left an imprint of the tread pattern, just show the degree of force and the violence which was involved in this attack.  The offence is aggravated by the fact that you were on bail at that time for the other offences that had been committed some months earlier, and really, apart from the mitigation of your guilty plea and some personal mitigation which I am going to deal with in a moment, there is no mitigation of the offences that we need to take into account.  You are old enough to know better, the grave and criminal assault was a very serious assault. 

3.        The affray is also serious, it is clear from the summary of facts which has been put to us that you were the instigator of all the trouble at the car park at Les Platons and while there might have been, on that occasion, some provocation in the sense that fireworks were being thrown, it did not justify the way in which you then behaved.  When everything was settling down it all started again because of the attitude which you took, and we have no doubt at all that, although there were many more people than just you and your brother, as it were, on the other side of the affray, the conduct which you exhibited on that occasion was enough to put any reasonable person in fear of their safety.

4.        It is clear that you have a problem with alcohol.  The offences were aggravated by alcohol and you need to tackle that.  It was said to us by your counsel that we should not view you as a lost cause, and actually I would like to make it plain to you the Court does not view you as a lost cause.  It is true that the Probation Service says there is a high risk of reoffending, but you can tackle that by tackling your alcohol dependency.  The fact that you have recognised that in the letter you have given to the Court shows at least the first step towards addressing that particular problem.  You have not had the start in life that would be ideal, the Court recognises that; but the time has come when you just have to recognise that problem for yourself because at the end of the day it is not going to be an excuse throughout the whole of your life.  There is nobody else that is going to stop this pattern of offending but you; you have to take control of yourself, it is nobody else's fault, it is your fault.  And the Court is sentencing you now, not on the basis of course, of your record, but on the basis of these three nasty offences, two particularly nasty ones which you have committed. 

5.        We think the sentences which the Crown has proposed are right, of 3 months' imprisonment on Count 1, 12 months' imprisonment for the affray on Count 2, and 3 years and 6 months' imprisonment for the grave and criminal assault, on the Third Indictment. 

6.        In considering those sentences we have had regard to the factors identified in the case of Harrison-v-AG [2004] JLR 111 which we have taken into account.  The usual rule is that where quite separate offences are committed, then they should be consecutive sentences of imprisonment imposed and the Crown is right in this case to propose consecutive sentences of imprisonment.  We have then gone on to consider the totality as to whether the total of 4 years and 9 months' imprisonment is just too much in all.  We have given very anxious thought to that but in our view the sentence is not excessive and indeed is the right sentence, particularly as I say, because the consequences of the offence, the grave and criminal assault, could have been far more severe than actually they were.  They were even so severe if one looks at the victim's personal statement, he says at the end of November, so this is some 4 months or so after the assault, "My jaw still hurts if using any kind of implement that vibrates, i.e. work tools, I can't retain the tooth that was initially replaced during surgery, I can't eat anything tough or hard because of the weak jaw" and he describes the other injuries in his victim personal statement and that really does emphasise the nastiness of this particular assault. 

7.        So the conclusions in your case are granted and you will go to prison on Count 1 under the First Indictment, 3 months' imprisonment, for malicious damage, on the Second Indictment, Count 2 for the affray, 12 months' imprisonment, consecutive, and on the Third Indictment, Count 1, grave and criminal assault; 3 years and 6 months' imprisonment, consecutive, making a total of 4 years and 9 months' imprisonment. 

8.        Paul Passman, you are here on the Second Indictment only which contains three counts, one of affray, and two of grave and criminal assault.  You have heard what I have had to say about the offence of affray as committed by your brother and much of that applies, of course, to you.  There is no doubt that people would have been in fear of their safety as a result of what you did on that occasion.  But the Court accepts that you were not the instigator of it and, misguidedly, you went to the help of your brother.  You joined in the fight and the only thing which is really to your credit in the facts of the affray, it seems to us, is that you would not give your brother the knife when he asked for it.  That does stand in some degree to your credit because he was the one who was clearly not in control and we accept that you yourself were not under the influence, substantially, of alcohol at that time. 

9.        I will come back to the question of the affray later because the worst part of it is your use of the knife and this is what has been the causing the Court the greatest anxiety.  When you take a knife with you to a public place there is always a chance that you are going to use it and the answer is that you should not take it with you in the first place.  If you do not take it you cannot use it.  Knife crime is always treated extremely seriously by this Court; people who carry knives normally would go to prison.  Had you been any older there is no question but you would have gone to prison.  What we have to decide is whether or not the terms of the Criminal Justice (Young Offenders)(Jersey) Law 1994 are such that, solely because of your age, you should not be given a custodial sentence.  That law says:- "A court shall not pass a sentence of youth detention unless it considers that no other method of dealing with the person is appropriate" and then there are reasons why the Court might well consider that no other method of dealing with the person is appropriate and the important one there is that the offence is so serious that a non-custodial sentence cannot be justified.  The Court thinks that there have been occasions where those who have carried knives have not received a custodial sentence if under the age of 21, although no authorities specifically on that point have been put to us.  The two authorities which Advocate Corbel passed up being connected with the use of bottles rather than the use of knives. 

10.      I have to tell you that the Court is not agreed on what the outcome should be in your case.  A minority of Jurats would have sent you to youth detention but the majority feel that there is room to accept the strictures of the 1994 Law that there is another way of dealing with you.  We have noted you do not have as bad a record as your brother and we have noted in particular that you have not had the benefit of a Probation Order in the past.  So with some misgivings, I say misgivings only because the use of a knife is such a serious offence the Court is going to impose a Community Service Order in your case and not a sentence of youth detention.  It is a decision that is reached by a majority and we have taken into account the guilty plea; we have taken into account your letter which we think exhibits genuine remorse and taken into account that you have been out of trouble this last 8½ months.  But you should be aware that you are very fortunate indeed not to be sent to youth detention on this occasion.  And you should also be aware that if you step out of line at all in the next 2 years, you will be brought back to this Court and the probability is that you will then be sent to youth detention or prison, depending on your age.  This is an opportunity that has been given to you and the Court hopes that you are going to take it. 

11.      In the circumstances, in your case the sentence is as follows: on the charge of affray we sentence you to 120 hours' community service, the alternative being 6 months youth detention, that reflects that your brother was more culpable in connection with the affray than you were.  In relation to the 2 counts of grave and criminal assault you are sentenced to 312 hours' Community Service Order, the alternative would have been a sentence of 2 years' imprisonment.  In addition you are placed on probation on each count for 2 years and in each case the sentences will run concurrently, so that makes a total of 312 hours' community service and 2 years' probation.  As I say, that is a majority decision of the Court, and you can count yourself lucky. 

Authorities

Harrison-v-AG [2004] JLR 111.

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

AG-v-Burrell [2003] JRC 209.

AG-v-Passman [2011] JRC 162.