Jersey Unreported Judgments

Superior Number Sentencing - possession of offensive weapon - affray - malicious damage - attempting to escape from lawful custody.

[2012]JRC236

Royal Court

(Samedi)

19 December 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu, Morgan, Milner, Olsen and Liston.

The Attorney General

-v-

Michael Thomas Calvert

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 20 July, 2012, following guilty pleas to Counts 1, 3 and 4 and after being found guilty at Assize trial dated 8^th November, 2012, on Count 2 on the following charges:

1 count of:	Having in a public place an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law 2000 (Count 1).
1 count of:	Affray (Count 2).
1 count of:	Malicious damage (Count 3).
1 count of:	Attempting to commit a statutory offence (namely escaping from lawful custody), contrary to Article 21 of the Prison (Jersey) Law 1957, as amended and contrary to Article 1(1)(b) of the Criminal Offences (Jersey) Law 2009 (Count 4).

Age:  34.

Plea: Guilty to Counts 1, 3 and 4. Not Guilty to Count 2.

Details of Offence:

Calvert arranged to meet with the victim at lunchtime in a busy St Helier street.  Calvert attended the meeting with two associates.  A witness heard Calvert and the victim arguing about a debt. 

Calvert chased the victim when he tried to run away.  The victim either fell or was pushed to the ground.  Calvert stood over him and slashed or stabbed his face using a knife or screwdriver (Count 2).  The attack lasted between 20 to 30 seconds and there were between 3 and 8 aimed blows. 

The victim suffered two cuts of 2cm in length to his face, which healed without scarring.  Calvert also cut the victims upper clothing.  As the victim fled, Calvert shouted abuse and, "That's what you get," at him. 

The defendant then concealed the knife and screwdriver in an adjacent street (Count 1). 

Armed police were deployed to the streets.  Calvert attempted to escape in disguise.  He gave misleading accounts to the police and to the lower court.  Convicted after a 2-day Assize trial. 

In custody Calvert smashed a telephone (Count 3).

On learning that his bail application was refused, he attempted to escape from the dock of the Magistrate's Court (Count 4). 

Details of Mitigation:

Efforts whilst remanded in prison to voluntarily attend courses to address his offending behaviour.

Previous Convictions:

Sixty previous convictions, including violence, public order, possession of weapons and affray. 

Conclusions:

Count 1:	9 months' imprisonment.
Count 2:	5 years' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive to Counts1-3.

Total: 5½ years' imprisonment. 

Sentence and Observations of Court:

Count 1:	9 months' imprisonment.
Count 2:	4½ years' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.
Count 4:	6 months' imprisonment, consecutive to Counts 1-3.

Total: 5 years' imprisonment.

D. J. Hopwood, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Calvert, you are here to be sentenced on an Indictment which contains four counts: having in a public an offensive weapon, unlawfully making an affray, malicious damage, and attempting to commit a statutory offence, that is to say, escaping from lawful custody.  The most serious of these charges is the offence of affray. 

2.        The circumstances were that you had arranged a meeting with a Mr Ferguson and indeed, the evidence that you gave was that you had arranged for a number of your friends to be present at the same time.  In the course of the discussion which took place between you and Mr Ferguson, which was in Hope Street, there were aggressive arguments about money and there seems little doubt that there was a shout to Mr Ferguson "where's my money", this money apparently being owed to a cousin.  At the time there was a further altercation which followed Mr Ferguson receiving a call on his mobile telephone and the altercation, which is really what led to the affray, was when Mr Ferguson either fell or was pushed to the ground, and you proceeded, as the Prosecution put it, to slash his face using an instrument that a witness described as pointed, sharp and tapered.  Now we have seen photographs of the injuries caused to Mr Ferguson at the time, and we are told that those injuries have healed completely and that there is no permanent scarring and we have taken that into account. 

3.        The explanation which you gave to the police at the time was that it was not you at all, you were not there, that you saw some CCTV footage and you said that was a million per cent not me.  Later on you told the Magistrate that it was you on the CCTV footage and it was you carrying a knife and a screwdriver but you denied being involved in the incident.  You said that Mr Ferguson had assaulted one of your friends or associates using a screwdriver, the knife fell out of Mr Ferguson, you went to chase him but then you did not do so and you then picked up the knife and screwdriver and walked away into Hope Street.  And at trial you gave a different version again where you said that you had received a call from Mr Ferguson who threatened to stab you but you arranged a time to meet him and you then arranged for some friends to be present in case Mr Ferguson did try to stab you, and these friends were positioned at strategic points.  You said that you had another friend with you, who had subsequently left the Island, and although you had originally chased Mr Ferguson, you stopped running at the point where the CCTV camera no longer caught you on the lens, and the unnamed friend then crossed the road and attacked Mr Ferguson with the knife.  And of course the evidence also was that you subsequently hid a knife and also a screwdriver in an area adjacent. 

4.        All this took place in the early hours of the afternoon and the reason that affray is so often said to be such a serious offence is that it is liable to put ordinary members of the public in fear of their safety; it is not the violence itself, although that is taken into account, but it is the alarm and fear that is caused to members of the public.  And in sentencing for affray we have to consider the gravamen of the offence as the primary question is what has been done, was that likely to have or did it, strike terror in the hearts and minds of the public?  And then after that we look at what the defendant actually did, what you actually did, what part you played in the affray.  That is the approach that is taken. 

5.        In this case there was a busy street, the CCTV footage shows a number of people going up and down.  And what must have been reported to the police, and we think this is a clear and proper inference to draw, was that a serious affray was taking place because the police made an armed response and they do not do that unless what is reported to them is quite serious. 

6.        It is said by your counsel, who we have to say has said everything that could possibly be said on your behalf, that this clearly was a spontaneous attack and that the Court should approach it on the basis that the use of the knife was spontaneous.  Well, in our view, we do not have to resolve when the intention was formed to use the knife.  It is an admitted fact that you organised the meeting and that you took the knife with you, and that you used it.  And it does not lie, in our view, in your mouth to say now that there was no decision in advance as to whether you would use it.  You must have contemplated that you might, and therefore in our view, we cannot treat this as a spontaneous assault.  This was a serious knife, it has what looks like a seven inch blade or something like that, we have seen the photographs which are in the court bundle.  And when one looks at the Crown's summary of facts and the evidence that was given that there was several stabbing motions with it, in a sense the injuries which have been suffered by Mr Ferguson are not as bad as one might have expected, and so in a sense the injuries suggest a measure of control in how the knife was used. 

7.        We do not accept the submission of Mr Haines that arranging a meeting in Hope Street shows that you cannot have intended to use the knife.  That may or may not have been so; the reason it may not have been so is Mr Ferguson was to be inveigled to come to the meeting, he may well have thought that it was safe to do so because it was in Hope Street in the middle of the day when there would be members of the public about. 

8.        In your letter to us you say this "I've been coming over to Jersey for about six years on and off and have never before come before the courts or charged with an offence over here.  The reason for this is because it is a different way of life here for me; better people, opportunities for me to work, and friends who are not involved in crime."  And the Court agrees entirely that that is the society, the community, that we pride ourselves on in Jersey.  We would be extremely concerned if the sort of violent conduct which perhaps de-sensitises the population in larger places were to become common-place here and there is a strong element of deterrence in the sentence which is now being passed.  We say that because we think that the Crown, in moving for its conclusions, has found a sentence which would be on analysis right at the top of the bracket which would be appropriate for an offence of this kind.  We have had a careful look at the case of AG-v-Shewan 1999/22, and indeed you will appreciate that the Court has been out considering the case for quite a long time; we decided that that case does not establish a precedent and, indeed, we think that the defendant in that case might well consider himself fortunate to have received the sentence which he did. 

9.        Taking all these factors into account we think that the Crown's conclusions on the charge of affray would, theoretically, be right and we are going to return to the question of totality in due course.  But we wanted to make plain our approach to this question of affray and how in the Court's judgment, this sort of conduct in a public place, the use of a knife in a public place in the middle of the day, causing anxiety, or liable to cause great anxiety to members of the public, which leads to an armed response, is simply not conduct which this Court will accept in this Island. 

10.      I turn now to the other offences with which you are charged.  Having in a public place an offensive weapon, as we say, this was a serious knife and should not have been carried about in a public place; we consider the Crown's conclusions of 9 months' imprisonment to be right for that offence.  On the count of malicious damage, damaging a telephone when in police headquarters, we also consider the Crown's conclusions to be right, 2 weeks' imprisonment.  And in so far as the attempt to escape lawful custody is concerned, we have noted all the comments which your counsel has made but, nonetheless, the court process is to be protected and we think that given the maximum sentence of 2 years' imprisonment, the attempt that was made on this occasion is such that 6 months' imprisonment is the right sentence for that offence and it should be imposed consecutively.  That would lead, in normal circumstances, therefore, to a total sentence of 5½ years' imprisonment; 5 years on the count of affray, the other sentences on Counts 1 and 3 concurrently and the sentence on Count 4 consecutively.  But the Court has then gone on to consider the totality of the sentence and by a majority - I have to tell you that two of the Jurats were in favour of imposing that sentence as being the right sentence - but on grounds of totality by a majority, we are going to reduce the conclusions slightly. 

11.      You are therefore sentenced as follows.  On Count 1; 9 months' imprisonment, on Count 2; 4½ years' imprisonment, concurrent, on Count 3; 2 weeks' imprisonment, concurrent, and on Count 4; 6 months' imprisonment, consecutive, making a total of 5 years' imprisonment. 

12.      We have taken into account the mitigation which you have put forward.  There is not much mitigation, we have not seen much remorse in the sense that there is the continuing denial of the subsequence of the offence on which you are convicted, but we have noted the efforts which you have made in prison on remand and we would certainly encourage you to continue to use those efforts while you are there. 

Authorities

AG-v-Shewan 1999/22.

AG-v-Burrell, Brown, MacKinnon, Murray and Pankhurst [2003] JRC 209.

Harrison-v-AG [2004] JLR 111.

AG-v-Dos Santos and Rodrigues [2007] JRC 219.

AG-v-Williamson and Errais [2010] JRC 185A.

AG-v-Harris 1995/238.

AG-v-Lusk 2001/86.

AG-v-Powell 2000/139.

AG-v-Myles and Vale [2005] JRC 026.

AG-v-Bree [2005] JRC 177.

R-v-Purchase [2007] EWCA Crim 1740 CA.