Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - assault.

[2013]JRC084

Royal Court

(Samedi)

3 May 2013

Before     :

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

The Attorney General

-v-

Antonio Romano Capuano

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

First Indictment

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

Second Indictment

2 counts of:

Assault (Counts 1 and 2).

Age:  47.

Plea: Guilty.

Details of Offence:

First Indictment

Intoxicated, the defendant head butted a doorman who had refused him entry to a bar.  No injury (Count 1).  The doorman and his colleague pursued and detained him.  Whilst struggling with them, the doorman pressed his thumb into the second doorman's eye with force (Count 2).  Two hours later the defendant spat at the police custody officer in the face, through his cell hatch (Count 3). 

Second Indictment

The defendant's brother appeared to suffer an epileptic fit whilst they walked home intoxicated.  The defendant called an ambulance.  The defendant took exception to the way the ambulance technician spoke to his brother and punched the side of his face while he was attending his brother (Count 1) causing no injury.  As the brother was stretchered into the ambulance, the defendant exchanged words with the ambulance technician then spat into his mouth and eye, necessitating a 6 month programme of precautionary Hepatitis B treatment and the risk of loss of his employment (Count 2). 

Poor record.  Knew that drinking worsened his mental health issues.  Offending on First Indictment in breach of Magistrate's Court Binding-Over Order made 3 months earlier.  Offending on Second Indictment committed after drinking in a bar from which excluded by bail conditions.

Details of Mitigation:

Long history of mental health problems.  Suffering from hypomanic episodes around the time of the offences on the Second Indictment.  Guilty pleas generally entered early, or soon after recovery from illness.  Significant delays due to a Defence application to make legal argument which was then abandoned and the defendant's worsening health.  Better insight, of late, of the effect of drinking on his underlying mental illness. 

Previous Convictions:

119 convictions including 20 common assaults, 5 grave and criminal assaults and 11 assaults on police. 

Conclusions:

First Indictment

Count 1:	4 months' imprisonment.
Count 2:	18 months' imprisonment, consecutive.
Count 3:	4 months imprisonment, consecutive.

Second Indictment

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

Total: 2½ years' imprisonment.

Exclusion Order sought excluding the defendant from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises, excluding the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House for a period of 24 months taking effect from the day on which the defendant is released from prison.

Sentence and Observations of Court:

First Indictment

Count 1:	4 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	6 months' imprisonment, consecutive.

Second Indictment

Count 1:	4 months' imprisonment, consecutive to the First Indictment.
Count 2:	6 months' imprisonment, concurrent.

Total: 2 years' imprisonment. 

Exclusion Order made excluding the defendant from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises, excluding the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House for a period of 24 months taking effect from the day on which the defendant is released from prison.

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

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on two Indictments containing four counts of assault and one count of grave and criminal assault.  The grave and criminal assault was occasioned when you gouged the eye of a person late at night, who had been working in a nightclub.  The common assaults for which you are due to be sentenced are a mixture of punches and spitting offences.  The spitting offences are particularly disgusting offences and, certainly these days, they carry the risk of serious infection being transmitted and are potentially very serious indeed.  One of the spitting offences was against a police officer and the other against an ambulance driver.  In both cases these were men who were doing their job serving the public and the Court has said, on many occasions, that police officers and ambulance drivers are entitled to the Court's protection. 

2.        We found this to be a difficult case because you clearly have a substantial amount of mitigation which your counsel has put very fully before us and which we have considered very carefully.  We have taken into account the fact that you have had these offences hanging over you for some time, although that is not the Crown's fault.  We have taken into account the guilty plea, your letter of remorse, which is a very full and detailed letter which we have read carefully, and the personal circumstances, particularly with regard to your housing issues and the fact that you have a 4 year old son who is important to you.  Particularly we have considered carefully the mental health issues, and the report of Dr Harrison that the offending, certainly this year, had its cause or roots in your mental health difficulties. 

3.        Nonetheless we think that a custodial sentence is the appropriate sentence in your case, despite the recommendations of the social enquiry team.  We think the mental health disorder is something that you can deal with.  You can take your medication; you can avoid alcohol; you can avoid substance misuse.  The control of these mental health difficulties rests with you and when you come out of prison we hope that you will remember that.  We also have taken into account that you have known about the mental health difficulties for some time and, to some extent, you could have avoided them by avoiding alcohol.  We have taken into account that you do have access to mental health support while you are serving your custodial sentence. 

4.        In the circumstances of this case we think the Crown's conclusions were nearly right, if I can put it that way, but there are some that we wish to adjust.  On Count 1 you are sentenced to 4 months' imprisonment.  On Count 2, we think the right sentence would have been 18 months' imprisonment, but we are going to reduce it to a period of 12 months' imprisonment on grounds of totality.  On Count 3, for spitting at a police officer, we think the Crown's conclusions are too low; the right sentence is 6 months' imprisonment and, as is usual, we mark that, the protection of the police, by making that a consecutive sentence to the other sentences which are being imposed.  On the Second Indictment, the assault for punching the ambulance technician, you are sentenced to 4 months' imprisonment and for spitting at the ambulance technician, you are sentenced to 6 months' imprisonment.  The two counts on the Second Indictment run concurrently with each other but consecutive to the First Indictment because they are quite different incidents and they are many months apart.  The counts on the First Indictment; Count 2 runs concurrently with Count 1 but Count 3 is consecutive to those two.  So in total you will go to prison for 2 years, that is a total of 18 months on the First Indictment, 12 months plus 6 months' consecutive, and 6 months' consecutive from the Second Indictment, making a total of 2 years' imprisonment. 

5.        At the conclusion of the sentence you are subject to an Exclusion Order, which you agree and your counsel has made that plain, so for 2 years after your release you are not to go into any licensed premises other than shops that sell food, the Airport, the Harbour, the Multiplex Cinema and the Opera House. 

6.        These sentences, I wish to emphasise, are being imposed because despite the substantial mitigation you have, at the end of the day the Court feels it is right to make absolutely plain that police officers and ambulance technicians/drivers, who are doing a public service, need to be protected and that is why the sentence is being imposed. 

Authorities

Harrison-v-AG [2004] JLR 111.

AG-v-De Freitas 2001/86B.

AG-v-Capuano [2004] JRC 099.

Capuano-v-AG [2004] JCA 168.

AG-v-Capuano [2003] JRC 223.

AG-v-Nimmo [2012] JRC 145A